U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

21–348 PDF 2017

S. HRG. 114–702 

HEARING ON PENDING LEGISLATION 

HEARING 

BEFORE THE

COMMITTEE ON VETERANS’ AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

MAY 24, 2016 

Printed for the use of the Committee on Veterans’ Affairs 

( 

Available via the World Wide Web: http://www.fdsys.gov 

(II) 

COMMITTEE ON VETERANS’ AFFAIRS 

JOHNNY ISAKSON, Georgia, Chairman 

JERRY MORAN, Kansas 

JOHN BOOZMAN, Arkansas 

DEAN HELLER, Nevada 

BILL CASSIDY, Louisiana 

MIKE ROUNDS, South Dakota 

THOM TILLIS, North Carolina 

DAN SULLIVAN, Alaska 

RICHARD BLUMENTHAL, Connecticut, Ranking 

Member 

PATTY MURRAY, Washington 

BERNARD SANDERS, (I) Vermont 

SHERROD BROWN, Ohio 

JON TESTER, Montana 

MAZIE K. HIRONO, Hawaii 

JOE MANCHIN III, West Virginia 

TOM BOWMAN, Staff Director 

JOHN KRUSE, Democratic Staff Director 

(III) 

C O N T E N T S 

MAY 24, 2016 

SENATORS 

Page 

Isakson, Hon. Johnny, Chairman, U.S. Senator from Georgia ............................ 1 

Blumenthal, Hon. Richard, Ranking Member, U.S. Senator from Connecticut ... 2 

Tester, Hon. Jon, U.S. Senator from Montana ...................................................... 2 

Sullivan, Hon. Dan, U.S. Senator from Alaska ..................................................... 3 

Moran, Hon. Jerry, U.S. Senator from Kansas ..................................................... 28 

Tillis, Hon. Thom, U.S. Senator from North Carolina .......................................... 32 

Manchin, Hon. Joe, U.S. Senator from West Virginia .......................................... 34 

Heller, Hon. Dean, U.S. Senator from Nevada ..................................................... 36 

WITNESSES 

Boxer, Hon. Barbara, U.S. Senator from California ............................................. 4 

McCain, Hon. John, U.S. Senator from Arizona ................................................... 5 

Klobuchar, Hon. Amy, U.S. Senator from Minnesota ........................................... 7 

Gibson, Hon. Sloan, Deputy Secretary, U.S. Department of Veterans Affairs; 

accompanied by Laura Eskenazi, Executive in Charge and Vice Chairman, 

Board of Veterans’ Appeals; David McLenachen, Deputy Under Secretary 

for Disability Assistance, Veterans Benefits Administration; and Baligh 

Yehia, M.D., Assistant Deputy Under Secretary for Health for Community 

Care, Veterans Health Administration .............................................................. 9 

Prepared statement .......................................................................................... 12 

Response to posthearing questions submitted by: 

Hon. Johnny Isakson .................................................................................... 39 

Hon. Mazie K. Hirono ................................................................................... 48 

Michaud, Hon. Michael H., Assistant Secretary of Labor for Veterans Employment and Training, U.S. Department of Labor; accompanied by Patricia 

Shiu, Director, Office of Federal Contract Compliance Program ..................... 19 

Prepared statement .......................................................................................... 21 

Fuentes, Carlos, Senior Legislative Associate, National Legislative Service, 

Veterans of Foreign Wars of the United States ................................................ 51 

Prepared statement .......................................................................................... 52 

Response to posthearing questions submitted by Hon. Mazie K. Hirono .... 135 

Celli, Louis J., Jr., Director, National Veterans Affairs and Rehabilitation 

Division, The American Legion ........................................................................... 63 

Prepared statement .......................................................................................... 65 

Atizado, Adrian M., Deputy National Legislative Director, Disabled American 

Veterans ................................................................................................................ 73 

Prepared statement .......................................................................................... 75 

Blake, Carl, Associate Executive Director, Government Relations, Paralyzed 

Veterans of America ............................................................................................. 87 

Prepared statement .......................................................................................... 89 

Rauber, Diane Boyd, Executive Director, National Organization of Veterans’ 

Advocates, Inc. ...................................................................................................... 97 

Prepared statement .......................................................................................... 99 

Ensminger, Jerome M., MSgt (Ret.), U.S. Marine Corps ..................................... 105 

Prepared statement .......................................................................................... 108 

Attachments ............................................................................................... 113 

Page

IV 

APPENDIX 

American Federation of Government Employees (AFGE), AFL-CIO; prepared 

statement .............................................................................................................. 137 

Zumatto, Diane M., National Legislative Director, AMVETS; prepared statement ...................................................................................................................... 138 

Harmar, Kempf, Inc., Pride Mobility Products Corp., AMSVans, Mobility Plus, 

Homecare Mobility, Patriot Mobility, AmeriglideAccessibility Solutions, 

American Access, John George Welding andRollx Vans; letter ....................... 141 

Military Officers Association of America; prepared statement ............................ 145 

Wells, CDR John B., USN (Retired), Executive Director, Military-Veterans 

Advocacy; prepared statement ............................................................................ 148 

Caraway, Martin, Legislative Chairman, National Association of County Veterans Service Officers; prepared statement ....................................................... 157 

Brasuell, David, President, National Association State Directors of Veterans 

Affairs and Administrator, Idaho Department of Veterans Services; prepared statement ................................................................................................... 158 

National Mobility Equipment Dealers Association; letter .................................... 163 

Stichman, Barton F., and Ronald B. Abrams, Joint Executive Directors, National Veterans Legal Services Program; prepared statement ......................... 164 

Texas Veterans Commission; prepared statement ................................................ 169 

Urgent Care Association of America; prepared statement ................................... 172 

Veterans & Military Law Section, Federal Bar Association; letter ..................... 175 

Addendum ......................................................................................................... 181 

(1) 

HEARING ON PENDING LEGISLATION 

TUESDAY, MAY 24, 2016 

U.S. SENATE, COMMITTEE ON VETERANS’ AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 2:15 p.m., in room 

418, Russell Senate Office Building, Hon. Johnny Isakson, Chairman of the Committee, presiding. 

Present: Senators Isakson, Moran, Heller, Tillis, Sullivan, 

Blumenthal, Brown, Tester, and Manchin. 

OPENING STATEMENT OF HON. JOHNNY ISAKSON, CHAIRMAN, 

U.S. SENATOR FROM GEORGIA 

Chairman ISAKSON. I call to order this hearing of the Veterans’ 

Affairs Committee of the U.S. Senate. 

In my opening statement, I want to address a subject which became prominent yesterday in remarks made by the Secretary to 

The Christian Science Monitor, which I quote from what I read in 

the media was said at the meeting. ‘ ‘‘When you go to Disney, do 

you measure the number of hours you wait in line or what is important,’’ McDonald told reporters at The Christian Science Monitor 

in Washington. ‘‘What is important is your satisfaction with the experience.’’ ’. 

That is a quotation that was, I am sure, not intended to send the 

message that it sent, but at least in part, it sent a more trivial 

message than I think it should have. I think the Secretary owes 

the veterans of the United States of America and this Committee 

an apology for making that reference. 

We all make mistakes. I ran a big company. I have been a U.S. 

Senator. I have been a politician for 38 years. I have said things 

and I have had to say I am sorry before. The quicker you say it, 

the better off you are to put behind you something that may not 

have been intended, but, in fact, once it was out, your message became fact. 

So, as Chairman of the Committee, and I have not had a chance 

to talk with the Ranking Member yet, but I think every Member 

of the Committee probably feels the same way I do. We are so close 

to reforms in the VA to further expedite the products of the Veterans Administration in terms of taking care of our veterans that 

for us to lose our inertia by quotes that send the wrong message 

would just be terrible. So, it is my hope the Secretary will correct 

what was obviously not the intent of the statement, make sure the 

veterans know that their service first is what is most important to 

us, and that waiting in line does mean something. It is one thing 

2 

to wait for a roller coaster. It is another thing to wait for a blood 

transfusion. The two should not be comparable in one way or 

another. 

With that said, I will turn to the Ranking Member. 

OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, 

RANKING MEMBER, U.S. SENATOR FROM CONNECTICUT 

Senator BLUMENTHAL. I want to thank the Chairman for his remarks, which I think capture the feelings of a lot of our reaction 

to the remarks that we read without knowing in advance they were 

going to be made. They were unfortunate. I certainly hope and believe they do not reflect the intentions and dedication of Secretary 

McDonald to continue efforts to improve the VA’s delivery of services that our veterans need and deserve, and part of delivery is 

doing it without delay. Time is a critical factor, as well as the quality of service. 

My hope is that we can work together, as we have done on a bipartisan basis for the Veterans First Act, which will bring fundamental reform to assure accountability in the VA as well as improving the delivery of education and health care, Caregivers’ and 

other truly important programs. 

I want to thank the Chairman for having the hearing today and 

for our colleagues who will be testifying before us. 

We must reform the appeals process. We have to improve VA’s 

programs for providing care in the community as well as make sure 

that VA’s construction program is managed well. We have to do 

more to ensure that women veterans, the fastest growing population at the VA, have access to the care they deserve and need. 

Those measures are before us today. 

My hope is we will look forward and seek to improve and continue the vital and significant work that we are doing together to 

those ends and to the goals that we share in the Veterans First 

Act. I am very hopeful, in fact, optimistic, that we can bring the 

Veterans First Act to a successful conclusion if we continue working together as we have done on a very bipartisan basis. 

Thank you, Mr. Chairman. 

Chairman ISAKSON. Just an editorial comment. Senator Blumenthal is exactly correct. We passed the Veterans First bill out of this 

Committee unanimously, and we want to get it to the floor and get 

it passed, because it deals with correcting all those things in terms 

of policies and procedures that the VA itself has asked for or that 

we have seen fit: to expedite appointments, to expedite health care, 

and improve the veterans services to our veterans. So, I want to 

at the beginning compliment all our Members of the Committee for 

the work they did on Veterans First. We are going to work hard 

to get it to the floor and make it happen. 

With that said, Senator Tester. 

STATEMENT OF HON. JON TESTER, 

U.S. SENATOR FROM MONTANA 

Senator TESTER. Well, if I might, since Senator Boxer and Senator McCain are not here, I just might say a couple things. 

Chairman ISAKSON. Absolutely. 

3 

Senator TESTER. First of all, thank you for your leadership, Senator Isakson and Ranking Member Blumenthal. 

I would just like to say a few comments about Secretary McDonald. You pointed it out, Mr. Chairman. People say things they regret later, and I think that he is in that boat. If he has not apologized already, I am sure he will shortly. 

I have had the opportunity on this Committee to serve under 

some really quality people as head of the VA, Secretary Peake, Secretary Shinseki, and now Secretary McDonald. I will tell you that 

each one of those people had strengths and each one of them had 

weaknesses, but they all had one thing in mind, I believe, and that 

is what is best for our veterans. 

This Committee has done such great work in a bipartisan manner that I hope we can continue down that line moving forward, 

keeping the Veterans First Act in mind and keeping politics out of 

this Committee, because our veterans deserve a hell of a lot more 

than playing politics. 

Thank you, Mr. Chairman. 

Chairman ISAKSON. Well, I completely concur with your remarks 

and I thank you for your work in helping bring about the cooperation that made Veterans First come to reality. 

Senator Sullivan. 

STATEMENT OF HON. DAN SULLIVAN , 

U.S. SENATOR FROM ALASKA 

Senator SULLIVAN. Mr. Chairman, I just want to associate myself 

with your remarks. I appreciate your leadership, Senator Blumenthal’s leadership, on the legislation we have been working on. 

I agree with Senator Tester, and as you also mentioned, there 

are times we all make mistakes. I think that is obvious. But when 

you are in a leadership position, particularly in an organization 

where we are trying to change the culture—I think everybody here 

thinks we need to change the culture—those kind of comments, 

they are going to be noticed by tens of thousands, if not hundreds 

of thousands of veterans. 

I think your wise counsel about coming out, apologizing as soon 

as possible, is what needs to happen.I certainly hope the Secretary 

takes you up on that wise advice. 

Chairman ISAKSON. Thank you, Senator Sullivan. Thank you for 

your leadership on Veterans First. We appreciate it. 

We have two distinguished Members of the Senate here. Our 

Committee procedure is when members who are not Members of 

the Committee testify, we will give them a few minutes at the beginning of our hearing to state their case for their legislation. Then 

as is our practice, we do not engage them in questions when it is 

over. 

So, Senator Boxer and Senator Klobuchar, both of you may make 

your statements, then you can remain as long as you want to, but 

we are not going to subject you to any inquisition nor questions. 

To begin, I will go with seniority. I will start with Senator Boxer 

from California. 

4 

STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM CALIFORNIA 

Senator BOXER. Thank you, Mr. Chairman. I would certainly love 

to have your questions, but I know you have a lot to get through. 

I thank you so much, all of you, particularly, Mr. Chairman and 

Ranking Member Blumenthal, plus every member who is here. 

I am pleased that the Female Veteran Suicide Prevention Act, 

which I introduced with Senators Blumenthal, Brown, and Ernst, 

is on today’s agenda. This bill addresses a very important issue 

that deserves our continued attention, the tragic epidemic of suicide among veterans, especially among our female veteran population. 

Last year, a VA study found that female veterans commit suicide 

at nearly six times the rate of non-veteran women—six times the 

rate of non-veteran women—and the rates are even higher among 

younger veterans. For women between the ages of 18 and 29, the 

rate increases to nearly 12 times the civilian rate. Something is 

horribly wrong here. It is heartbreaking. It is unacceptable. We are 

in a position, I think, to address it in this bill. 

There are now more than two million women veterans in the 

United States and that number is growing. As we encourage and 

welcome more brave women into the service, we must remember 

that their health care needs often differ from men’s, and that includes mental health care. Women veterans have different life experiences and gender-specific concerns that may well require different treatments. We know that many experience physical or mental trauma as a result of their service, and women veterans are 

more likely than their civilian counterparts to have experienced 

harassment or sexual assault, something that I know we all care 

about. When these women leave the service, the transition can be 

difficult. 

That is why we must increase our understanding of the unique 

experiences of female veterans and ensure that they know that the 

mental health care and support they need is waiting for them at 

the VA. 

Our legislation would build on previous efforts to examine the 

services we are providing our veterans. It would take a very hard 

look at which programs are working and which are not working for 

our at-risk female veterans. I think it is important to know that 

we are spending taxpayer dollars. We should spend the taxpayer 

dollars wisely and not waste it on programs that may work well 

for certain other categories, but not these particular women. Our 

legislation requires the VA to identify the programs that are the 

most effective and that have the highest satisfaction rates among 

female veterans in its annual evaluation of mental health and suicide prevention programs. 

It would also require them to include specific metrics on women 

veterans. Our daughters, our sisters, our wives, and our mothers 

who have served our country courageously deserve the best possible 

care we can provide. 

The VA, I know, is doing everything it can to help prevent suicides, but we know we can do better. We can always do better. 

That is why our Founders said ‘‘a more perfect Union,’’ and they 

did not say that we have a perfect Union. We can do better on this. 

5 

We have to do better. It is wrong that our female veterans have 

a higher rate of suicide than the civilian sector, up to 12 times 

more. 

We owe our veterans, I think, at least this bill, which will give 

us the information we need to prevent this horrible crisis. 

Thank you very much. 

Chairman ISAKSON. Thank you very much, Senator Boxer. We 

appreciate it. 

Senator McCain, you have been deferred to by Senator 

Klobuchar. Amy told us it is always important to remember that 

age comes before beauty. [Laughter.] 

Chairman ISAKSON. To that end, I—— 

Senator MCCAIN. Has she already finished? [Laughter.] 

Senator KLOBUCHAR. No, I want to get to you. [Laughter.] 

Chairman ISAKSON. I tell you, you can never one-up John 

McCain, I am going to tell you that. [Laughter.] 

But, let me just say this on behalf of myself and, I think, Senator 

Blumenthal, who is a veteran like so many in the U.S. Senate, but 

the veteran’s veteran in the U.S. Senate is John McCain. We are 

honored to have him here today. 

Senator McCain, the floor is yours. 

STATEMENT OF HON. JOHN McCAIN, 

U.S. SENATOR FROM ARIZONA 

Senator MCCAIN. I thank you, sir, and I thank my friend from 

Minnesota on the great job and effort she is making. 

By the way, on the suicide issue, I agree with the Senator from 

California. But I also would point out we did pass unanimously the 

Clay Hunt Suicide Prevention Act, which I think addressed many 

of the concerns. I will be glad to have additional legislation, but I 

think it is only about a year-and-a-half old. We might give that Act 

a chance to see if it is going to work or not. But all of us, including 

the Senator from California, are very concerned about this terrible 

issue of veteran suicides. 

I want to thank all my colleagues regarding the legislation called 

the Care Veterans Deserve Act. The bill would make the Veterans 

Choice Card easier for our veterans. Today, the only veterans who 

are eligible, as the Committee knows, are those who are waiting 

more than 30 days or live more than 40 miles from a VA health 

care facility. The bill would make the Choice Card universally 

available to all disabled or eligible veterans, no matter where they 

live or how long they are waiting for care so they can get the flexible quality they want and need. 

The legislation provides greater certainty to our veterans and 

doctors currently enrolled in the Veterans Choice Card program. 

Many people are not aware that if Congress does not act soon, the 

Veterans Choice Card program will expire next summer. Some doctors are refusing to serve veterans under the Choice Card until 

they are certain it will be extended for the long term. The bill provides both veterans and doctors the certainty they need by making 

this vital program permanent. 

Mr. Chairman, we have been working in the Senate on a 3-year 

extension of the card under existing rules for eligibility. I will continue to work with you and the Committee to pass that extension. 

6 

I strongly believe the best way to improve veterans health care is 

to enable all eligible veterans to access the Choice Card. 

The bill that we have put forward includes a number of other 

provisions, for example, allowing veterans who develop a cold or 

the flu to visit walk-in clinics without preauthorization from the 

VA. Today, veterans with non-urgent medical conditions must call 

the VA for an appointment, which could take weeks to schedule, 

and if veterans complain about the wait, the VA tells them to go 

to an overcrowded emergency room. Senator Flake and I heard testimony from a number of veterans who have sat in the ER for up 

to 14 hours without being seen. Veterans told us that for minor illnesses, they just wanted a way to see a health care provider on the 

same day and this legislation would do that. 

This legislation would require VA clinics and pharmacies to extend their operating hours to nights and weekends in order to provide comparable pharmacy services offered by retail pharmacies. 

Currently, only a small number of VA facilities offer evening or 

weekend options for veterans, which makes it difficult for working 

veterans who often cannot take the entire workday off in order to 

see a doctor and obtain a prescription. 

We know the VA has a long way to go to eliminate the never- ending wait times. The Congress provided the VA an extra $5 billion in emergency funding to hire doctors, nurses, and medical support staff. The VA needs to use this money to hire or contract for 

doctors to eliminate the wait times that are still as high, or in 

some cases higher, than they were during the scandal. 

Critically, this legislation would allow the health care professionals licensed, registered, or certified in one State to use telemedicine to provide treatment to veterans in other States. 

We encourage the VA Health Care System to undergo a best 

practices peer review. I want to just emphasize, if I could—Mr. 

Chairman, why do we not get organizations like the Cleveland 

Clinic or Mayo or others to come in and look at these VA facilities 

to see how they are doing business to say, here is how you can improve. There are some outstanding examples all over the country 

of health care providers that really know their business, so why not 

have a peer review and send them in? It would be very inexpensive. In fact, I know that the Mayo Clinicwould do it for free because of their dedication to our veterans. Mayo would go see how 

they are doing business; show them how they can improve. I think 

that is pretty obvious. 

I just want to point out that because of the Choice program, so 

far 1.4 million appointments for veterans who would otherwise 

wait for delayed care, over 2.5 million separate payments to doctors 

and hospitals were made, and over 450,000 Choice health care providers across the Nation have joined to date for veterans to choose 

from. The Choice Card triples the number of health care providers 

that can care for our Nation’s veterans. One hundred seventy thousand medical appointments for veterans under Choice were made 

last month alone, more than 7,500 per work day. 

So, Mr. Chairman, I want to thank the Members of this Committee on both sides for their bipartisan effort on behalf of our veterans. Senator Blumenthal and you, I think, represent the best of 

us in the U.S. Senate in working together, and I think that that— 

7 

and all members—has led to favorable outcomes for our veterans. 

So, I want to thank you for that and I want to thank you for the 

work you have done so far. 

Chairman ISAKSON. Senator McCain, I just want to add that in 

August 2014, you led the conference committee that created the 

Veterans Choice program. In the 2 years since it has been implemented, it has been a force multiplier for physicians being able to 

be available for our veterans. It has begun to deliver on the promise that you led us to, which came out of the terrible tragedy that 

started in your State in terms of wait times. So, your leadership 

is appreciated. What you have done is appreciated and we will give 

it thorough consideration. 

Senator MCCAIN. I want to thank you, and I would like to mention the product of that was negotiations with Senator Sanders, 

who was then-Chairman of the Committee. I would also allege that 

I am one of the first to feel the Bern. [Laughter.] 

Senator BLUMENTHAL. Mr. Chairman, I hate to follow that remark with anything—— 

[Laughter.] 

Senator BLUMENTHAL [continuing]. As you said at the outset, 

there is no one-upping Senator McCain. I just want to personally 

thank Senator McCain for his leadership on the amendment that 

hopefully we will consider to the NDAA. I am very proud to be the 

lead Democrat supporter of that amendment, which will extend 

community choice and care in the community. I look forward to 

working with him on this proposal, as well. Thank you for the leadership, Senator. 

Chairman ISAKSON. Thank you, Senator McCain. 

Senator Klobuchar. 

STATEMENT OF HON. AMY KLOBUCHAR, 

U.S. SENATOR FROM MINNESOTA 

Senator KLOBUCHAR. Thank you very much, and thank you, Senator McCain, for your service and your good work. 

I want to also thank the Chairman and Ranking Member 

Blumenthal, to walk in here and hear the rather calm discussion 

about the Secretary’s remarks. I share your sentiments about the 

need for an apology, but I appreciated your thoughtfulness in how 

you approached this, Mr. Chairman, as you do so many issues. I 

know from having co-chaired the National Prayer Breakfast with 

you, that you show great leadership, so thank you for that. 

I am here on two bills, both of whom I am leading with Senator 

Tillis. The first, actually—Senator McCain’s service in the Vietnam 

War reminds us of what happened during the Vietnam War when 

the U.S. sprayed 80 million liters of Agent Orange and Vietnam 

vets came home with nerve, skin, digestive, and respiratory disorders. Thousands of veterans asked for help, but it took the government years to recognize that link. 

We have something else going on right now and we do not really 

know the scope of it, but we know there is an issue, and that is 

the issue of burn pits. At military sites across Iraq and Afghanistan, burn pits were used for waste disposal, old batteries, aerosol 

cans, tires, dead animals, and even human waste. Oftentimes, jet 

fuel was used as an accelerant. The volumes and types of minerals 

8 

varied by site, but the Department of Defense has estimated that 

between 65,000 and 85,000 pounds of solid waste were burned each 

day at large bases. One joint base burned up to 147 tons of waste 

per day, and these open air pits would frequently burn 24 hours 

a day, exposing thousands of soldiers. 

I have heard personally from hundreds of constituents, as has 

Senator Tillis. One of them, Melissa Gillett from Minnesota, was 

a member of the 148th Fighter Wing based in Duluth. She got into 

the National Guard with a plan to stay in the National Guard for 

20 years. She was very healthy. Then she was exposed to burn pits 

in Afghanistan. She experienced a host of negative health effects, 

like asthma, sinus issues, and because of her breathing issues, she 

was not able to pass her fitness test and could no longer serve in 

the National Guard. 

There has been a study on this, a 2011 Institute of Medicine report that has been inconclusive about the long-term effects. As you 

all know, there is a registry. Sixty-five thousand Iraq and Afghanistan veterans have begun the process of filing reports with the 

VA’s voluntary registry. Of vets who completed the questionnaire, 

30 percent stated that they have been diagnosed with respiratory 

diseases. 

What our bill does is to create a Center of Excellence in the VA 

to better understand the health effects. Senator McCain is a cosponsor as well as Senator Rounds, Senator Gillibrand, and Senator Franken. It has received the support of Iraq and Afghanistan 

Veterans of America and the American Lung Association. It really 

points us in the right direction of looking at dedicating staff and 

resources to exploring, diagnosing, treating, and rehabilitating. We 

are hopeful that it will receive the support of this Committee. 

For the second bill, I will be more brief, which is the Newborn 

Care Improvement Act. This is a bill, again with Senator Tillis— 

oh, here he is. This bill actually has already passed the House back 

in February without any controversy. What it does is it doubles the 

number of days from 7 to 14 that a veteran’s newborn baby can get 

post-delivery care services. 

Right now, a qualifying veteran must find outside health care for 

her child within 7 days of birth or the baby will not be covered for 

care. Factors like PTSD and combat injuries mean many female 

vets face high-risk pregnancies and this time of 7 days is simply 

not enough, even for a birth without complications. The standard 

of care for healthy newborns is 14 days. Nearly all pediatricians require newborns to return to the hospital at 2 weeks for a checkup. 

As I said, the House passed this without controversy, and as Senator Boxer was just talking about in a different context, women 

represent the fastest growing group of veterans who are enrolled 

in VA health care. 

I have introduced this legislation as an amendment to NDAA 

and I hope that we can work together, either pass this legislation 

that way, as well as the burn pit bill, or pass it some other way. 

I thank you very much, Mr. Chairman, for allowing me to speak 

today and all the good work, bipartisan work, you do on this Committee. 

9 

Chairman ISAKSON. Thank you very much, Senator Klobuchar. 

We appreciate your help and your testimony and we will be with 

you soon. 

It is now time for our first panel to come forward. Sloan Gibson, 

the Deputy Secretary of the Department of Veterans Affairs; Laura 

Eskenazi will accompany him, as will David McLenachen and 

Baligh Yehia. 

Michael Michaud, Assistant Secretary of Labor for Veterans Employment and Training, U.S. Department of Labor; accompanied by 

Patricia Shiu, Director, Office of Federal Contract Compliance Program, will also be on the first panel. 

Let me acknowledge before I start that Deputy Secretary Sloan 

Gibson has asked to have a few more than the standard 5 minutes, 

so we will give him eight, and if he goes too far past that, we will 

go get him. [Laughter.] 

Deputy Secretary Gibson. 

STATEMENT OF HON. SLOAN GIBSON, DEPUTY SECRETARY, 

U.S. DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED 

BY LAURA ESKENAZI, EXECUTIVE IN CHARGE AND VICE 

CHAIRMAN, BOARD OF VETERANS APPEALS; DAVID 

McLENACHEN, DEPUTY UNDER SECRETARY FOR DISABILITY 

ASSISTANCE, VETERANS BENEFITS ADMINISTRATION; AND 

BALIGH YEHIA, M.D., ASSISTANT DEPUTY UNDER SECRETARY FOR HEALTH FOR COMMUNITY CARE, VETERANS 

HEALTH ADMINISTRATION 

Mr. GIBSON. Thank you, sir. 

Let me briefly address the attention that has been generated by 

Secretary McDonald’s comments yesterday. First and most importantly, anyone who knows Bob McDonald knows that he would 

never, ever diminish the importance of improving veterans’ access 

to care. Bob has made improving access to care for veterans the 

number 1 priority of VA since he arrived almost 2 years ago. 

He has worked tirelessly to lead and inspire the Department to 

improve the timeliness of care and the provision of benefits to veterans. He has repeatedly indicated to all kinds of audiences that 

our goal is to ensure that VA becomes the number 1 customer service organization in the Federal Government. He is doing everything 

he can and we are working with him to make VA more veterancentered and increase veteran satisfaction. 

He is leading the Department in following the best practices of 

the private sector health care providers who recognize that there 

is more to patient satisfaction and a great health care experience 

than wait times. 

I was reminded recently, it was almost 2 years ago that an acting Secretary, who I know well, said before this particular committee, and I quote, ‘‘I think as we move forward, what we are 

going to find is that average wait times are a very poor gauge for 

timeliness of care for a large integrated health system. You do not 

really find that out in the private sector. That is one of the reasons 

we are boosting our patient satisfaction measurement activities, because I think patient satisfaction is going to become central. Even 

at a 14-day standard, if the veteran needs to be seen today, we 

have failed that veteran.’’ That statement was made before this 

10 

Committee on July 16 back in 2014. It was true in 2014. It is true 

today. We know we have work to do to improve access to care. 

Bob and I deeply regret the distraction from the veterans’ work 

that has been caused by these remarks and the perception that was 

created that veterans’ access to care is anything other than our absolute top priority. 

Second, a quick comment. I would be remiss if I did not express 

my appreciation to the Committee and especially to you, Mr. Chairman, for your leadership on the Veterans First Act. We strongly 

support that legislation. We are grateful for the opportunity we had 

to work collaboratively with you and the Committee, and I have at 

least some small sense of the effort that you personally have put 

into navigating this legislation through the process. Thank you, sir, 

and thank other Members of the Committee. 

With all that said, thank you for presenting our views on several 

bills. I will really focus on just two elements here. 

I am joined today, as you introduced Laura Eskenazi, the Vice 

Chairman of the Board of Veterans Appeals, Dave McLenachen, 

Deputy Under Secretary in VBA in the benefits area, and Dr. 

Baligh Yehia, who has been driving our processes in VHA around 

community care consolidation for the last number of months. 

I also would be remiss if I did not acknowledge our partners from 

the various Veterans Service Organizations that worked so closely 

with us on the appeals reform draft legislation. 

Appeals reform is a top priority for VA and we fully support the 

bill that is under consideration. It is critical to remember that the 

cost associated with implementing the new legislation is essentially 

zero. The additional funds that we hope Congress will provide year 

by year to reduce the inventory in the current system is separate 

from the legislation to modernize the process. 

The current appeals process leaves veterans frustrated and waiting far too long. It was conceived some 80 years ago and has become a collection of processes that have accumulated over time, unlike any other appeals process in the Federal Government. Layers 

of additions to the process have made it more complicated, more 

opaque, more unpredictable, and less veteran-friendly. It makes adversaries of veterans and VA and it is slow as molasses, using a 

good Southern term that we are both familiar with, sir. 

The average processing time for all appeals is about 3 years. For 

an appeal that goes to the Board for approval, the average time to 

decide is about 5 years. Many appeals are much older. Last year, 

the Board was still adjudicating an appeal that originated 25 years 

ago which had been decided 27 times in that 25 years. That is not 

right for veterans and it is not right for taxpayers, and it is only 

going to get worse unless we tackle this and make change. 

We now have over 450,000 appeals pending, and without major 

reforms, average wait times will grow to somewhere in the neighborhood of 10 years instead of 3 to 5 years. We are working within 

existing restraints and resources to try to respond to the problem. 

We are upgrading technology, applying lessons that we have 

learned from VBA’s automation and transformation of the claims 

process. We have adopted a standard notice of disagreement form 

to initiate an appeal. VBA has added 300 additional staff just for 

appeals work in the last year, and they have allocated $10 million 

11 

for appeals work in overtime—just appeals work in overtime during 

2016. 

The Board is doing their part. The appeals decision output has 

increased by one-third since 2013. They are now processing appeals 

at the highest rate since 1988. 

Yet, despite these best efforts, veterans keep waiting longer for 

an appeals decision, and without action and reform, we will see 

that wait grow even longer. The problem is rooted in the fact that 

our antiquated, complex, and inefficient appeals process has made 

it impossible for us to keep up with the growing workload. As some 

younger veterans are surviving devastating wounds and returning 

home with higher levels of disability, it is no surprise we are seeing 

record numbers of disability claims with more medical issues per 

claim. 

Looking back from 2010 to 2015, VBA has completed more than 

a million claims, disability claims, each of those years. In 2015, 

they completed 1.4 million claims, an all-time record. But more 

claims decided means more appeals, 35 percent more appeals in 

just the last 3 years. This dramatic increase in the volume of appeals is directly proportional to the increase in claims. We have 

seen, on average, over a period of time, about 11 to 12 percent of 

claims decisions wind up being appealed. 

The appeals process is not working and the status quo is not an 

option. The solution is fundamental reform, and that is what we 

need to tackle now. 

We strongly support this legislation, which has already brought 

VA, Veterans Service Organizations, and other stakeholders together in support of the bill. We should not burden veterans for a 

moment longer than necessary. The time to act is now. 

The second bill on the agenda, S. 2896, would extend the Veterans Choice program and essentially remove all eligibility criteria 

built into the current law. It may make for an appealing sound bite 

to say you are giving every veteran a choice, but I would urge the 

Committee to listen to VSOs, to veterans, and to others who are 

deeply involved in the process who have the greatest stake in 

maintaining and improving the health care system that was built 

for them. 

If this bill is enacted, we believe it would inevitably transform 

VA largely into an insurance provider and greatly erode our 

strengths as a health care provider centered on a continuing relationship with veterans and their entire spectrum of health care 

needs. 

We are not against care delivered outside VA. Long before Veterans Choice, we were purchasing billions of dollars of care in the 

community because it was the right thing for veterans. We would 

be purchasing care in the community at an even higher rate in the 

future, but we believe that if this bill is enacted, the projected increases will drive budget increases that will be truly staggering. I 

would urge the Committee and all members to carefully consider 

the consequences of the provision. 

We note that some concerns about other provisions, such as requiring VA to enter a nationwide contract with urgent care providers and expand the operating hours at VA pharmacies. These 

12 

are appealing notions at first glance, but we believe that they have 

unsustainable expenses as outlined in my written testimony. 

Last, on the positive side, the change proposed in Section 4 

would greatly help VA telehealth efforts by eliminating a significant legal roadblock. We also agree with requiring best practice reviews set out in Section 6 of the bill. The only point we would make 

is that we are already doing that based on some practices we put 

in place recently. 

Mr. Chairman, I appreciate the opportunity to testify. We look 

forward to working with this Committee and our VSO partners to 

fix the broken appeals system, and we look forward to your 

questions. 

[The prepared statement of Mr. Gibson follows:] 

PREPARED STATEMENT OF HON. SLOAN GIBSON, DEPUTY SECRETARY, U.S. DEPARTMENT OF VETERANS AFFAIRS

Good afternoon, Chairman Isakson, Ranking Member Blumenthal, and Members 

of the Committee. Thank you for inviting us here today to present our views on several bills that would affect VA programs and services. Joining me today are Laura 

Eskenazi, Executive in Charge and Vice Chairman of the Board of Veterans Appeals 

(the Board), David McLenachen, Deputy Under Secretary for Disability Assistance 

for the Veterans Benefits Administration (VBA), and Baligh Yehia M.D., Assistant 

Deputy Under Secretary for Health for Community Care. 

Thank you for the opportunity to come before you today to discuss the Department’s legislative priorities, along with additional pieces of introduced legislation. 

I know the Committee has introduced an ‘‘omnibus’’ measure which will address 

many of the immediate needs of the Department of Veterans Affairs (VA) in serving 

Veterans. 

Our pressing needs are items that we have outlined in letters to the Committee, 

in previous testimony, and in countless meetings with the Committee and members 

staffs, which support the MyVA Breakthrough Priorities. Some of these critical 

needs are addressed in bills you are considering in today’s hearing, but we’d like 

to work with you on the particular language to ensure that, as enacted, the language will have the desired effect of helping the Department best serve Veterans. 

In particular, the legislation being considered today to address consolidation of community care presents challenges and concerns. 

I believe it is critical for Veterans that we all work together and gain consensus 

on a way forward for these pieces of legislation that will provide VA with the tools 

necessary to deliver care and benefits at the level expected by Congress, the American public, and deserved by Veterans. 

S. ____, A BILL TO REFORM THE RIGHTS AND PROCESSES RELATING TO APPEALS OF DECI- SIONS REGARDING CLAIMS FOR BENEFITS UNDER THE LAWS ADMINISTERED BY THE

SECRETARY OF VETERANS AFFAIRS

Addressing the appeals claims process is a top priority. The draft bill being considered today would provide much-needed comprehensive reform for the VA appeals 

process. It would replace the current, lengthy, complex, confusing VA appeals process with a new appeals framework that makes sense for Veterans, their advocates, 

VA, and stakeholders. VA fully supports this bill. 

The current VA appeals process, which is set in law, is broken and is providing 

Veterans a frustrating experience. Appeals have no defined endpoint and require 

continuous evidence gathering and readjudication. The system is complex, inefficient, ineffective, confusing, and splits jurisdiction of appeals processing between the 

Board of Veterans’ Appeals (Board) and the Veterans Benefits Administration 

(VBA). Veterans wait much too long for final resolution of an appeal. We face an 

important decision about the future of appeals for Veterans, taxpayers, and other 

stakeholders. 

Within the current legal framework, the average processing time for all appeals 

resolved in FY 2015 was 3 years. For those appeals that reach the Board, on average, Veterans are waiting at least 5 years for an appeals decision, with thousands 

of Veterans waiting much longer. As Secretary McDonald noted in his February 23, 

2016 testimony, in 2015, the Board was still processing an appeal that originated 

25 years ago, even though the appeal had previously been decided by VA over 27 

times. VA continues to face an overwhelming increase in its appeals workload. LookVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
13 

ing back over FY 2010 through 2015, VBA completed more than 1 million claims 

annually, with nearly 1.4 million claims completed in FY 2015 alone.This reflects 

a record level of production. As VA has increased claims decision output over the 

past 5 years, appeals volume has grown proportionately. Since 1996, the appeal rate 

has averaged 11 to 12 percent of all claims decisions. The dramatic increase in the 

volume of appeals is directly proportional to the dramatic increase in claims decisions being produced, as the rate of appeal has held steady over decades. Between 

2012 and 2015, the number of pending appeals climbed by 35 percent to more than 

450,000 today. VA projects that, by the end of 2027, under the current process, without significant legislative reform, Veterans will be waiting on average 10 years for 

a final decision on their appeal. 

Comprehensive legislative reform is required to modernize the VA appeals process 

and provide Veterans a decision on their appeal that is timely, transparent, and 

fair. This bill would provide that necessary reform. The status quo is not acceptable 

for Veterans or for taxpayers. Without legislative change, providing Veterans with 

timely answers on their appeals could require billions of dollars in net new funding 

over the next decade. By contrast, with legislation and a short-term increase in 

funding to address the current pending workload, VA could resolve the pending inventory, provide most Veterans with an appeals decision within 1 year by 2021, and 

greatly improve the efficiency of the Appeals process for years to come. We believe 

this can be done for net additional costs over 10 years in the millions of dollars, 

not the billions required by the status quo, saving money in the long-term compared 

to where we are headed without reform. If we fail to act now, the magnitude of the 

problem will continue to compound. 

A wide spectrum of stakeholder groups recently met with VA to reconfigure the 

VA appeals process into something that provides a timely, transparent, and fair resolution of appeals for Veterans and makes sense for Veterans, their advocates, 

stakeholders, VA, and taxpayers. We believe that the engagement of those organizations that participated ultimately led to a stronger proposal, as we were able to incorporate their input and experience having helped Veterans through this complex 

process. The result of that summit was a new appeals framework, virtually identical 

to the draft bill, that would provide Veterans with timely, fair, and quality decisions. VA is grateful to the Veterans Service Organizations and other stakeholders 

for their contributions of time, energy, and expertise in this effort. 

The essential feature of this newly shaped design would be to step away from an 

appeals process that tries to do many unrelated things inside a single process and 

replace that with differentiated lanes, which give Veterans clear options after receiving an initial decision on a claim. For a claim decision originating in VBA, for 

example, one lane would be for review of the same evidence by a higher-level claims 

adjudicator in VBA; one lane would be for submitting new and relevant evidence 

with a supplemental claim to VBA; and one lane would be the appeals lane for seeking review by a Veterans Law Judge at the Board. In this last lane, intermediate 

and duplicative steps currently required by statute to receive Board review, such as 

the Statement of the Case and the Substantive Appeal, would be eliminated. Furthermore, hearing and non-hearing options at the Board would be handled on separate dockets so these distinctly different types of work can be better managed. As 

a result of this new design, the agency of original jurisdiction (AOJ), such as VBA, 

would be the claims adjudication agency within VA, and the Board would be the 

appeals agency. 

This new design would contain a mechanism to correct any duty to assist errors 

by the AOJ. If the higher-level claims adjudicator or Board discovers an error in 

the duty to assist that occurred before the AOJ decision being reviewed, the claim 

would be returned to the AOJ for correction unless the claim could be granted in 

full. However, the Secretary’s duty to assist would not apply to the lane in which 

a Veteran requests higher-level review by the AOJ or review on appeal to the Board. 

The duty to assist would, however, continue to apply whenever the Veteran initiated 

a new claim or supplemental claim. 

This disentanglement of process would be enabled by one crucial innovation. In 

order to make sure that no lane becomes a trap for any Veteran who misunderstands the process or experiences changed circumstances, a Veteran who is not fully 

satisfied with the result of any lane would have 1 year to seek further review while 

preserving an effective date for benefits based upon the original filing date of the 

claim. For example, a Veteran could go straight from an initial AOJ decision on a 

claim to an appeal to the Board. If the Board decision was not favorable, but it 

helped the Veteran understand what evidence was needed to support the claim, 

then the Veteran would have 1 year to submit new and relevant evidence to the 

AOJ in a supplemental claim without fearing an effective date penalty for choosing 

to go to the Board first. 

14 

To fully enable this process and provide the appeals experience that Veterans deserve, VBA, which receives the vast majority of appeals, would modify its claims decisions notices to ensure they are clearer and more detailed. This information would 

allow Veterans and their representatives to make informed choices about whether 

to file a supplemental claim with the AOJ, seek a higher-level review of the initial 

decision within the AOJ, or appeal to the Board. 

The result of the draft bill would not only improve the experience of Veterans and 

deliver more timely results, but it would also improve quality. By having a higherlevel review lane within the VBA claims process and a non-hearing option lane at 

the Board, both reviewing only the record considered by the initial claims adjudicator, the output of those reviews would provide a feedback mechanism for targeted 

training and improved quality in VBA. 

Though some may view this reform effort as too accelerated, we would like to reiterate that the topic of ‘‘fixing the appeals problem’’ has been debated and studied 

by experts in the field for many, many years. The draft bill would solve the problem. 

The time to act is now. We are excited to be part of this work and to have the potential to lay down a path for future Veterans’ appeals that is simple, timely, transparent, and fair. We owe it to our country to put in place a modernized framework 

for Veterans’ appeals which we believe will serve Veterans, taxpayers, and the Nation well for years to come. 

CONSOLIDATION OF COMMUNITY CARE

We need your help, as discussed on many occasions, to overhaul our Care in the 

Community programs. Our Plan to Consolidate Programs of Department of Veterans 

Affairs to Improve Access to Care (the Plan) as required by Title IV of Public Law 

114–41, the VA Budget and Choice Improvement Act, was delivered on October 30, 

2015. 

Determining the details of a program that could replace the current and temporary Veterans Choice program enacted in August 2014 will require close study 

and collaboration with Veterans, Veterans Service Organizations (VSO), the Congress and other stakeholders and experts. 

That is why VA staff and subject matter experts have communicated regularly 

with Committee and Member staff to further discuss concepts and specific concerns. 

While we know further discussions are required to get us to a fully streamlined program, we have identified components of the plan that could be enacted now and 

would improve Veterans experiences’ with, and VA’s performance under, the existing Veterans Choice Program. 

We believe that together we can accomplish the necessary legislative changes to 

streamline the overwhelming number of varying Care in the Community programs 

before the end of this session of Congress. Many of the concepts are addressed in 

some way by the bill under consideration today. 

VA’s intense focus, and our mission, is to provide high quality health care that 

is tailored to the special needs of Veterans and that is accessible to Veterans. Part 

of that effort is to secure care through community providers when VA is not in a 

position to provide that care itself that meets our goals for reasonable access. The 

current Veterans Choice Act represents an effort to set rules to define the right balance in legislation. 

S. 2896—CARE VETERANS DESERVE ACT

The Department has serious concerns with the potential consequences of section 

2 of S. 2896, which eliminates the existing sunset date for the Veterans Choice Program and removes the current eligibility criteria without providing any additional 

resources. About 80% of Veterans have some other form of health insurance and 

have a choice today about where to seek their health care. If Veterans who currently 

do not use the VA health care system begin to seek community care through the 

Choice Program, VA will have to divert resources away from the provision of internal VA care, dramatically undercutting our ability to provide care that is tailored 

to the unique health care needs of Veterans. The erosion of funding for internal VA 

care would in turn strike at the foundation of VA’s other missions, notably training 

U.S. medical professionals, supporting the Department of Defense in readiness, and 

conducting ground-breaking research. 

While it may be an appealing notion to make Veterans Choice universal, we believe such legislation would create a dynamic that could lead to serious erosion in 

VA’s ability to address the critical special needs of Veterans, in a system that was 

created to serve their needs. Sections of this bill would render VA functionally as 

a health care insurer, rather than a health care provider. As noted, about 80% of 

Veterans have some other form of health insurance. When service-connected care is 

15 

provided under the Choice Program, VA is the only payer for the care. For non-service-connected care, VA is secondary to other health insurance except for Medicare, 

Medicaid and TRICARE, from which VA cannot seek reimbursement. A Veteran 

may choose to use the Choice Program for care, due to low or no cost-sharing requirements in the VA system, even if they otherwise would never come to the VA. 

This essentially utilizes VA resources for a portion of the Veteran population that 

wants to use VA as a health care insurer, rather than an integrated health care 

system. VA may never have a relationship with this Veteran other than paying 

their health care bills. This would weaken the VA health care system, which has 

a unique understanding of the consequences of military exposure, posttraumatic 

stress (PTS), polytrauma care, prosthetics, spinal cord injuries, and other types of 

care that are unrivaled by any other health care system in the world. Any recommendation for reform must be sure not to impede the contract VA has with Veterans 

to translate that understanding into state-of-the-art care that helps Veterans manage illness and achieve their highest level of health and well-being. We want to ensure that our services are available for those Veterans who need and want that type 

of care. 

VA believes that there needs to be the right balance of community care access especially when VA cannot provide the care or is not geographically accessible to Veterans. VA is open to reform and is indeed making key advances in access, quality, 

and patient satisfaction as part of the larger transformation called MyVA. VA is also 

continuing to develop a truly integrated community-based network of providers that 

can evolve and improve. By allowing all Veterans to opt to use community providers, 

some areas may be overwhelmed with demand, generating delays in care for both 

Veterans and non-Veterans if there are not enough community providers to support 

all types of patients. This could adversely affect continuity of care for Veterans if 

we no longer have insight or relationships with community providers. The added 

value provided to the Veterans through the larger VA community, including such 

unique features as the network of peer specialists and other social services, would 

no longer be available if enough Veterans no longer relied on the VA system to support these services. We put forward an Administration proposal that better meets 

our needs and continue to believe that is the right approach. 

Specifically concerning section 3, of S. 2896, which requires VA to contract with 

a nationwide chain of walk-in clinics to provide care to enrolled Veterans, VA understands and appreciates the value in expanding VA’s use of urgent care centers for 

Veterans who need such services, but this provision is too broad and does not include any feature, such as the inclusion of copayments, to ensure that it is used in 

a measured way that would not overrun the funds appropriated by Congress. The 

use of measured cost-sharing is well-recognized in the private sector as a way to 

help ensure management of costs while providing patients the care they need. VA 

of course uses copayments under current law for certain veterans and certain types 

of care. More critically, section 3 would also create an inequity where Veterans 

using these services do not owe a copayment, while comparable Veterans who use 

VA could be subject to a copayment, when both Veterans receive essentially the 

same treatment. Having no cost-share may increase a Veteran’s utilization of the 

cost-free services. This may move more Veterans to care outside of the VA, disrupting continuity of care if a Veteran chose to receive limited care through walkin clinics instead of more comprehensive visits at VA that would address his or her 

conditions systematically. 

VA supports enactment of a Federal law authorizing the provision of health care 

via telehealth or mobile technologies as appropriate regardless of where the Veteran 

or the provider is located. Section 4 of S. 2896 would eliminate one of the last roadblocks to VA’s expansion of the provision of telehealth services. This would save Veterans the trouble of having to drive to a clinic hours away (even to use telehealth 

services) and instead could allow them to be seen in the comfort and security of 

their own home. Additionally, allowing VA providers to be able to deliver care from 

alternate work sites, even outside the State where the Veteran is located, could expand our capacity to deliver health care. 

We do not expect enactment of section 4 would result in any costs. 

VA would appreciate the opportunity to have further discussions on this legislation especially related to VA’s Plan to Consolidate Community Care Programs. VA 

believes sections 2 and 3 would result in extremely large costs, and would be glad 

to discuss that aspect of the legislation with the Committee as well. 

VA does not support section 5 to expand the operating hours for VA pharmacies. 

There is no evidence that pharmacies at VA medical facilities are not meeting the 

prescription needs of Veterans within the current hours of operation. Pharmacies at 

VA facilities have processes in place to provide urgent and emergent pharmacy services during times outside normal hours of operation. These services include on-call 

16 

pharmacy staff, use of contracted pharmacies for urgent and emergent prescription 

needs, and dispensing of urgent and emergent medications by a VA provider in the 

emergency department; many VA facilities have inpatient pharmacies that are always open or have extended hours of operations compared to the outpatient pharmacy and can provide urgent or emergent prescription needs for Veterans. 

Additionally, there is independent evidence that VA’s Pharmacy Benefits Management program continues to provide industry leading customer service year after 

year for the entire pharmacy industry in the United States. The VA Pharmacy Consolidated Mail Outpatient Pharmacy (CMOP) provides approximately 80 percent of 

the total number of prescriptions dispensed by VA to our Nation’s Veterans. The VA 

CMOP has achieved the J.D. Power highest score for customer satisfaction for the 

mail-order pharmacy market segment in the United States for the last 6 consecutive 

years. This repeated achievement is a direct reflection of VA pharmacy staff’s commitment and dedication to VA’s mission to serve our Nation’s Veterans. 

The pharmacists at VA facilities provide counseling and education to Veterans on 

their new prescriptions, and then the facility pharmacy transmits the prescriptions 

to the VA CMOP or to the local VA pharmacy for dispensing to Veterans. Pharmacy 

staffs at VA facilities are responsible for answering Veterans’ questions related to 

prescription refills and other medication related questions. These services provided 

by VA facility pharmacy staffs allow VA CMOP staff to focus on prescription fulfillment activities. 

VA does not have a cost estimate for this provision at this time. 

VA strongly agrees that identifying and spreading best practices is crucial for continuing VA’s transformation to a high performing health care organization, but we 

do not support section 6 which would require an additional review of efficacy at each 

VA Medical Center. We concur that it will be important to engage leading private 

sector hospital and health care organizations to share best practices with VA and 

learn about best practices VA has developed. In fact, we are well underway in 

achieving the very goals and objectives of this bill. Last summer, the Under Secretary for Health? made best practice consistency one of VHA’s top priorities for 

transformation, launching the Diffusion of Excellence Initiative to identify and diffuse best practices systematically across VHA. The initiative is a systematic way 

that VHA continuously identifies best practices in care delivery from the field and 

diffuses them across the system. The diffusion process helps minimize variability 

and empowers employees to share innovations. We would be happy to update the 

Committee on our progress and accomplishments in this area. 

While VA greatly appreciates the goals of the legislation, we believe that, as drafted, the bill would both duplicate current efforts and prove to be cost-prohibitive. We 

do not have a specific cost estimate at this time, as the actual costs to implement 

this provision could vary greatly depending upon the scope of the reviews and the 

timing of implementation. 

OTHER HEALTHCARE BILLS

VA is serving a growing number of women, and ensuring that women receive appropriately tailored, safe, and effective mental health and substance use disorder 

services, including the screening for substance use disorders, is consistent with VA’s 

core mission and values. S. 2487, THE FEMALE VETERAN SUICIDE PREVENTION ACT, 

would require the tracking and measuring of specific metrics applicable to women, 

and which are most effective for women Veterans and those having the highest satisfaction rates among women Veterans. 

VA supports S. 2487, but would require additional appropriations to implement 

the legislation as written. Women Veterans have been found to be at higher risk 

for suicide than women non-Veterans, which further supports the need to ensure 

that strong and effective mental health and substance use disorder services are 

available in VA for women Veterans. 

VA estimates this bill would cost $2.2 million in fiscal year (FY) 2017 and $6.6 

million over 3 years. 

S. 2520, THE NEWBORN CARE IMPROVEMENT ACT, would increase from 7 to 14 the 

number of days after the birth of a child for which VA may furnish covered health 

care services to the newborn child of an eligible woman Veteran receiving maternity 

care and delivery services through VA. 

Although VA supports this bill, VA would require additional appropriations to implement this legislation as written. If a full term newborn has fever or respiratory 

distress after delivery, they may need additional inpatient treatment to manage 

these complications. This treatment may extend beyond the current 7 days that are 

allowed in the VA medical benefits package. Additionally it is standard of care for 

further evaluations during the first 2 weeks of life to check infant weight, feeding, 

17 

and newborn screening results. Upon review of these results, there may be a need 

for additional testing and follow-up. There are also important psychosocial needs 

that may apply, including monitoring stability of the home environment, or providing clinical and other support if the newborn requires monitoring for neonatal 

abstinence syndrome (e.g., withdrawal for maternal drug use during pregnancy) and 

screening and referral for substance use disorder services. VA must carefully consider the resources necessary to implement this bill, including an analysis of the future resources that must be available to fund other core direct-to-Veteran health 

care services. 

On July 14, 2015, before the House Committee on Veterans’ Affairs, Sub- committee on Health, VA testified that the companion bill, H.R. 423, would cost $2.3 

million in the first year, $12.7 million over 5 years, and $28.2 million over 10 years. 

VA would be happy to update these cost estimates at the Committee’s request. 

S. 2679, THE HELPING VETERANS EXPOSED TO BURN PITS ACT, would require VA 

to establish a Center of Excellence in the prevention, diagnosis, mitigation, treatment, and rehabilitation of health conditions relating to exposure to burn pits and 

other environmental exposures. The requirements in this bill would be met through 

the further expansion of the existing VA Airborne Hazards Center of Excellence 

(AHCE) at the War Related Illness and Injury Study Center (WRIISC), East Orange 

Campus, VA New Jersey Health Care System. 

Although VA supports this bill, VA would require additional appropriations to implement the legislation as written. The VA AHCE was established in 2013 to provide an objective and comprehensive assessment of Veterans’ cardiopulmonary function, military and non-military exposures, and health-related symptoms for those 

with airborne hazard concerns. In addition, consistent with the mission of the 

WRIISC, the AHCE conducts clinical and translational research and actively develops and delivers new educational content for health care providers, Veterans, and 

other stakeholders. As planned, the AHCE has expanded in phases to become the 

Veterans Health Administration’s (VHA) only comprehensive clinical assessment 

program for airborne hazards concerns of deployed Veterans. VA estimates this bill would cost approximately $4 million in FY 2017, $20.3 mil- lion over 5 years, and $40.7 million over 10 years. 

THE DRAFT BILL ON HEALTH CARE FOR RURAL VETERANS would expand the Veterans Choice program to include Veterans who have received care under the Access 

Received Closer to Home (ARCH) program. VA supports this bill however, we recommend some technical revisions to define the scope of this eligibility to ensure that 

only veterans who received care under ARCH and who still reside in an area where 

they would be eligible to participate in ARCH would qualify; essentially, if a Veteran received care under ARCH previously and subsequently moved to another location that was not participating in Project ARCH, that Veteran would not be eligible 

to participate in the Choice Program on this basis. 

VA supports efforts to share continuing medical education (CME) programs for 

non-VA medical providers who treat Veterans and their family members under laws 

administered by VA, and runs several programs of the type referenced in S. 2049. 

VA established VHA TrainingFinder Real-time Affiliate Integrated Network 

(TRAIN), an external learning management system to provide valuable, Veteran-focused, accredited, CME at no cost to community healthcare providers. Since the 

launch of VHA TRAIN on April 1, 2015, more than 14,000 people have created an 

account or subscribed to VHA content through a previously established account. 

VHA TRAIN reports more than 7600 completions from healthcare and public health 

providers. 

S. 2883, THE APPROPRIATE CARE FOR DISABLED VETERANS ACT OF 2016 would make 

permanent the requirement of the Secretary to submit a report on the capacity of 

VA to provide for the specialized treatment and rehabilitative needs of disabled Veterans. VA recommends against using ‘‘recidivism’’ as a metric. While ‘‘recidivism’’ 

meaning a return to substance use services after an intensive treatment episode, 

could be measured, it is conceptually at odds with medical understanding of substance use disorders as a chronic disease of the brain requiring on-going monitoring 

and treatment to avoid a return to substance use. VA attempts to engage stable, 

abstinent patients in on-going services to prevent return to substance use, and has 

no way of distinguishing this follow-up care for secondary prevention from care for 

symptom recurrence. 

In general, the majority of the new requirements of S. 2888, THE JANEY

ENSMINGER ACT OF 2016, would fall to the Secretary of Health and Human Services, 

through the Administrator of the Agency for Toxic Substances and Disease Registry 

(ATSDR). VA appreciates the work and collaboration with ATSDR, and defers to 

that agency on views. We note that CDC receives funding through a separate approVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
18 

priation to carry out activities under the Comprehensive Environmental Response, 

Compensation, and Liability Act of 1980, and would require funding accordingly. 

However, VA does not support the provisions of this bill which would effectively 

defer Veteran eligibility decisions to ATSDR. It would also require VA to continue 

providing hospital care and medical services to Veterans who have received such 

care or services under section 1710(e)(1)(F) notwithstanding a determination that 

the evidence of connection of an illness or condition and exposure is not categorized 

as sufficient or modest. 

This legislation would require VA to recognize new conditions that are not currently listed in 1710(e)(1)(F) if ATSDR places them in the ‘‘sufficient’’ or ‘‘modest’’ 

evidence of connection categories. We recommend that the ATSDR reports be submitted to VA in an advisory capacity only, as has been done with previous reports 

from the Institute of Medicine and National Research Council. If enacted, VA may 

require additional resources to assist the Veterans and family members who would 

become eligible for hospital care and medical services. 

As a technical matter, we note that the time period specified in section 

1710(e)(1)(F) of title 38, United States Code, ends on December 31, 1987, whereas 

the time period in proposed section 399V–6(a)(1)(A) of the Public Health Service Act 

would end on December 21, 1987. 

VA cannot provide a cost estimate for the bill because it is unknown what illnesses and conditions, if any, for which ASTDR would find that there is evidence 

that exposure to a toxic substance at Camp Lejeune during the specified time period 

may be a cause of such illness or condition at the ‘‘sufficient’’ or ‘‘modest’’ standard. 

The cost to VA of implementing this provision will depend upon which conditions 

ATSDR finds satisfy these requirements, how many Veterans and family members 

will qualify for hospital care and medical services for those conditions and illnesses, 

and the average cost for the necessary hospital care and medical services of those 

conditions or illnesses. 

BENEFITS LEGISLATION

VA supports the DRAFT BILL RELATED TO THE COMPENSATION AND PENSION EVI- DENTIARY THRESHOLD. This legislation would promote consistency of adjudications 

and reduce delays in processing claims due to the need to obtain an examination 

or report. 

As a result of current law, medical examiners are required to provide an opinion 

regarding the etiology of a claimed disability or symptoms in cases in which there 

is little or no objective evidence concerning in-service incurrence of an injury, symptoms, or event that could cause the disability or symptoms. In such cases, an examiner’s opinion is likely to be based on speculation rather than objective findings. Providing an examination in such cases also leads to unnecessary delay in finally resolving Veterans’ claims for compensation. 

The draft bill would amend section 5103A(d)(2) to add a requirement that VA 

would request a medical examination or opinion for purposes of a claim for disability 

compensation only if there is objective evidence in the record, except for certain circumstances. 

Mandatory cost savings for the first year are expected to be $93.1 million. Fiveyear cost savings are estimated to be $504.3 million and 10-year cost savings are 

estimated to be $1.1 billion. 

S. ____, AUTOMOBILE ADAPTIVE GRANTS (DRAFT BILL). While VA appreciates the intent of this bill, which would ensure Veterans are able to make personal selections 

related to automobiles receiving modifications, VA does not support this legislation 

as it is unnecessary. VA already has a policy for the Automobile Adaptive equipment program which establishes uniform and consistent system-wide procedures 

when furnishing automobile adaptive equipment. In addition, VA does not manufacture or install adaptive equipment on a beneficiary’s vehicle. Rather, VA pays for 

automobile adaptive equipment that accommodates beneficiaries’ driving and/or passenger needs as identified by a VHA certified Drivers Rehabilitation Specialist. 

THE DRAFT BILL ENTITLED ‘‘SOLVE ACT OF 2016’’ would amend section 4102A of 

title 38 to provide greater flexibility to States in carrying out the Disabled Veterans’ 

Outreach Program (DVOP) and employing Local Veterans’ Employment Representatives (LVER), and it would direct the Secretary of Labor to encourage Governors to 

co-locate DVOP specialists and LVERs with one or more Department of Labor onestop centers. 

Respectfully, we defer to DOL’s views on the bill. 

THE CONSTRUCTION REFORM ACT OF 2016 draft bill would require the Secretary 

to use industry standards, standard designs, and best practices to carry out the construction of medical facilities, and then to contract to conduct external forensic auVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
19 

dits of the expenditures relating to any major medical facility or super construction 

project where the total expenditures exceed the amount specified in the law for that 

project by more than 25 percent. 

VA generally supports the intent of the draft bill but offers some technical assistance. VA agrees with the use of standard designs and best practices in carrying out 

the construction of medical facilities. We would like to clarify, however, that there 

are no official ‘‘industry standards’’ for health care facilities. Private facilities usually rely on the technical advice of their individual Architects/Engineers regarding 

best practices. VA already uses various specific industry recommendations, which 

we adapt as necessary for our project location, climate and site, to accommodate 

VHA’s functional programs for each project. We use standard design templates for 

all outpatient clinics. We also use standard Design Guides and Space Planning criteria for health care departments and specialty functions. Of course, VA follows all 

Federal regulations regarding construction, including physical security, sustainability, energy use, renewable energy, accessibility, and environmental/cultural compliance. 

VA notes that in views on a House bill, H.R. 3106, that established the ‘‘super 

construction’’ threshold at $100 million, VA suggested substituting a threshold of 

$250 million. VA noted that the majority of active major projects are in fact over 

that threshold, but this allows for a better work distribution between VA and outside Federal entities. Congress established the threshold at $100 million in Public 

Law 114–58, and VA is of course implementing that law in concert with the United 

States Army Corps of Engineers. VA notes for the record that we believe a $250 

million threshold would still present those advantages. 

Mr. Chairman, this concludes my statement. Thank you for the opportunity to appear before you today. We would be pleased to respond to questions you or other 

members may have. 

Chairman ISAKSON. Thank you very much. 

Michael Michaud. Welcome, by the way. 

STATEMENT OF HON. MICHAEL H. MICHAUD, ASSISTANT SECRETARY OF LABOR FOR VETERANS EMPLOYMENT AND 

TRAINING, U.S. DEPARTMENT OF LABOR; ACCOMPANIED BY 

PATRICIA SHIU, DIRECTOR, OFFICE OF FEDERAL CONTRACT 

AND COMPLIANCE PROGRAMS 

Mr. MICHAUD. Thank you very much, Mr. Chairman, Ranking 

Member Blumenthal, and distinguished Members of the Committee. It is a privilege to return back to the Hill. While I was a 

Member of Congress, I fondly remember the great work done by 

both the Senate and House Veterans’ Affairs Committees. Now, as 

the Assistant Secretary of VETS at the Department of Labor, I appreciate the opportunity to discuss the pending legislation that impacts the quality of services delivered to our veterans. 

I will limit my remarks to those bills directly impacting the programs administered by DOL: the SOLVE Act and the Care Veterans Deserve Act. 

I am joined today by Director Pat Shiu of DOL’s Office of Federal 

Contract and Compliance Programs. OFCCP has sole enforcement 

and compliance assistance authority for some of the most basic civil 

rights protection in Federal law. 

The employment situation for veterans continues to improve. The 

unemployment rate for veterans fell from a high of 9.9 percent in 

January 2011 to 3.9 percent in April 2016. That is lower than the 

non-veteran unemployment rate of 4.5 percent in April 2016. The 

Gulf War-era II veterans’ unemployment rate fell from a high of 

15.2 percent in January 2011 to 4.1 percent in April 2016. While 

trends are favorable, no one at DOL will rest as long as one veteran needs assistance finding meaningful civilian employment. 

20 

Before I address the SOLVE Act and DOL’s concern with this 

legislation, I want to provide some background on DOL’s Jobs for 

Veterans State Grants (JVSG) and how it would ultimately be impacted. JVSG provides funding to 54 States and territories for Disabled Veterans Outreach Program Specialists, or DVOPS, and the 

Local Veterans Employment Representative staff, or LVERS. 

DVOP specialists provide intensive service employment to veterans in eligible populations, including homeless veterans and formerly incarcerated veterans, through individualized case management. LVER staff promote the hiring of veterans by building a network with local employers. DVOPS and LVERS work in the American Job Centers (AJCS) across the country. The network of approximately 2,500 AJCs are operated in partnership with the local 

Workforce Development Boards and State Workforce Agency and 

DOL. 

Consistent with the Vow to Hire Heroes Act of 2011, the Department released guidance in April 2014 refining the roles of JVSG 

staff. These changes improved workforce program service delivery 

strategies for veterans and eligible spouses. It addressed the anticipated demand for services from an increase in transitioning servicemembers and ensured that JVSG-funded State staff members 

perform their Congressionally intended functions. This guidance 

has improved the service for our veterans. 

The percentage of participants receiving intensive service increased from 22 percent in program year 2009 to 81 percent in program year 2015. During that same timeframe, DOL has seen the 

entered employment rate of JVSG’s participants improve from 48 

percent in program year 2009 to 59 percent in program year 2015. 

Veterans not served directly through JVSG receive other services 

from the workforce system. The Workforce Innovation and Opportunity Act, or WIOA, programs provided workforce service to over 

one million veterans last year. WIOA implementation and JVSG 

refocusing are two significant reforms currently underway in the 

workforce system, together enhancing employment and placement 

service for our veterans. The Department is concerned about the 

potential negative impact the SOLVE Act would have by disrupting 

these two reforms before they are fully implemented and evaluated. 

DOL is also concerned that the bill expressly prohibits new funding. If a State were to shift management of the JVSG program 

from a State workforce agency to another agency, there undoubtedly will be costs associated with that transition. Further, under 

the proposed language, approval of a State’s proposal of additional 

populations to be served by JVSG staff would necessitate additional funding for it to meet that demand. The JVSG program 

funding is allocated on a formula basis and it is VETS experience 

that the existing DVOP staffing levels is insufficient to fully meet 

the demand for DVOP service already permitted by the law. 

Last, I would like to briefly touch upon the Care Veterans Deserve Act, which extends the Veterans Access, Choice, and Accountability Act of 2014. The Choice Act contains an exemption for entities that contract with the VA to provide health care in the community from complying with a certain civil rights protection. These 

civil rights protections, which are enforced by DOL, prohibit Federal contractors and subcontractors from engaging in employment 

21 

discrimination, and it also requires them to take affirmative action 

to ensure that the job seekers and employees are treated equally 

without regard to: their status as a covered veteran, race, color, religion, sex, sexual orientation, gender identity, national origin, or 

disability. We cannot support the legislation that rolls back these 

key civil rights protections and urge the Committee to restore these 

important protections before lifting the Choice Act sunset. 

With that, Mr. Chairman and Members of the Committee, this 

concludes my oral statement and I want to thank you for the opportunity to testify. 

[The prepared statement of Mr. Michaud follows:] 

PREPARED STATEMENT OF MICHAEL H. MICHAUD, ASSISTANT SECRETARY OF LABOR

FOR VETERANS EMPLOYMENT AND TRAINING, U.S. DEPARTMENT OF LABOR

INTRODUCTION

Good afternoon, Chairman Isakson, Ranking Member Blumenthal, and distinguished Members of the Committee. Thank you for the opportunity to participate 

in today’s hearing. It is also my personal privilege to return to the Hill as a member 

of the executive branch. I have proud memories of the great work done by both the 

Senate and House Veterans’ Affairs Committees while I was a Member of Congress. 

Now, as Assistant Secretary for the Veterans’ Employment and Training Service 

(VETS) at the Department of Labor (DOL or Department), I appreciate the opportunity to discuss pending legislation that impacts the quality of services delivered 

to our veterans. 

The employment situation for veterans continues to improve. The unemployment 

rate for veterans has fallen from a high of 9.9% in January 2011 to 3.9% in 

April 2016; lower than the nonveteran unemployment rate of 4.5% in April 2016. 

The Gulf War-era II veteran unemployment rate has fallen from a high of 15.2% 

in January 2011 to 4.1% in April 2016. While these numbers in aggregate continue 

to trend in a desirable downward direction, nobody at DOL will rest as long as any 

veteran needs assistance finding meaningful civilian employment. 

Although this hearing is focused on several bills under consideration by the Committee, I will limit my remarks to discussing DOL’s Jobs for Veterans State Grants 

(JVSG) program and the legislation that has a direct impact on the programs administered by DOL, specifically S. 2919, the ‘‘State Outreach for Local Veterans Employment Act of 2016’’ and S. 2896, the ‘‘Care Veterans Deserve Act of 2016.’’ 

JOBS FOR VETERANS STATE GRANTS (JVSG) PROGRAM

The Jobs for Veterans State Grants (JVSG) program, funded in recent years at 

$175 million, is VETS’ biggest program. Our staff, led by a director in each of the 

50 states plus the District of Columbia and Puerto Rico, oversees this program in 

partnership with our state grantees. I have made it a point in my first six months 

in office to visit JVSG programs in over a dozen states and in all of DOL’s regions 

around the country. Earlier this month I also had the opportunity to visit the National Veterans’ Training Institute in Denver, CO, to observe the training program 

for JVSG-funded staff (including Disabled Veterans’ Outreach Program specialists 

and Local Veterans’ Employment Representatives). 

JVSG is the natural next step for our transitioning servicemembers when they 

complete the DOL Employment Workshop component of the Transition Assistance 

Program. JVSG also works in tandem with the Homeless Veterans Reintegration 

Program (HVRP) to help homeless veterans as well. 

• have seen firsthand the real results that JVSG is yielding for our veterans with 

significant barriers to employment. Last Program Year, almost 200,000 veteran participants were served by the program, with 57% entering employment following intensive services. 

S. 2919—‘‘STATE OUTREACH FOR LOCAL VETERANS EMPLOYMENT ACT OF 2016’’ 

The ‘‘State Outreach for Local Veterans Employment Act of 2016’’ (SOLVE Act) 

would, among other things, authorize states to select the implementation agency for 

the JVSG program. Before I discuss DOL’s serious concerns with this legislation, I 

would like to provide some background on how JVSG operates within the public 

workforce system, and why the current structure is optimal for the program and 

veterans themselves. 

22 

The public workforce system includes a nationwide network of approximately 

2,500 American Job Centers (AJCs), a network operated in partnership by Local 

Workforce Development Boards, State Workforce Agencies, and DOL, primarily the 

Department’s Employment and Training Administration (ETA). As the Chairman 

knows from his work on the Senate Health, Education, Labor, and Pensions Committee, the Workforce Innovation and Opportunity Act (WIOA), which became law 

less than two years ago, is driving transformational updates and upgrades to this 

system. 

WIOA established three hallmarks of excellence: 

• The needs of businesses and workers should drive workforce solutions and local 

boards are accountable to the communities in which they are located; • American Job Centers should provide excellent customer service to jobseekers 

and employers and focus on continuous improvement; and • The workforce system should support strong regional economies and play an active role in community and workforce development. 

AJCS staff are funded through a variety of Federal and state programs and are 

tasked with providing free services to American workers to assist them in obtaining 

and retaining meaningful employment. The JVSG program, funded and administered by VETS, is a required one-stop partner in the public workforce system and 

is enhanced through deeper integration into workforce system planning under 

WIOA. 

JVSG provides funding to 54 states and territories for Disabled Veterans’ Outreach Program (DVOP) specialists and Local Veterans’ Employment Representative 

(LVER) staff, located in AJCs. DVOP specialists provide intensive services to veterans and eligible populations, including homeless and formerly incarcerated veterans, through individualized case management. This includes comprehensive and 

specialized assessments of skill levels and needs, development of individual employment plans, group and individual career counseling and planning, and short-term 

skills development (such as interview and communication skills). LVER staff promote the hiring of veterans in communities through outreach activities that build 

relationships with local employers, and provide training to workforce center staff to 

facilitate the provision of services to veterans. 

In DOL’s administration of employment and training functions for veterans, Congress has required, among other things, that the Secretary of Labor ‘‘ensure that 

employment, training, and placement activities are carried out in coordination and 

cooperation with appropriate State public employment service officials.’’ 38 U.S.C. 

§ 4102A(b)(4). In addition, Congress has conditioned each State’s receipt of JVSG 

funds on a number of requirements, including that states describe ‘‘the manner in 

which [DVOP] specialists and [LVER] representatives are integrated in the employment service delivery systems in the State, ’’ 38 U.S.C. § 4102A(c)(2)(A)(i)(II), and 

that each State ‘‘coordinate employment, training, and placement services furnished 

to veterans and eligible persons under this chapter with such services furnished 

with respect to such veterans and persons under the Workforce Investment Act of 

l998 and the Wagner-Peyser Act. ’’ 38 U.S.C. § 4102A(c)(6). 

A REFOCUSED SYSTEM

Consistent with the VOW to Hire Heroes Act of 2011, which clarified and limited 

the allowable activities of DVOP and LVER staff, the Department released a JVSG 

refocusing strategy in April 2014 that refines the roles of DVOP and LVER staff. 

Since 2002, DOL has been moving in this direction based on Congressional intent, 

GAO audits, DOL Office of Inspector General audits, and internal VETS reviews. 

These changes are intended to improve workforce programs’ service delivery strategies for veterans and eligible spouses, meet anticipated demand for services from 

an increase in transitioning servicemembers, and ensure that JVSG-funded state 

staff members are performing their functions consistent with Congressional intent 

(38 U.S.C. §§ 4103A, 4104). As part of the implementation plan for this refocusing 

strategy, VETS and ETA issued joint guidance documents and conducted extensive 

technical assistance for state JVSG and AJC staff members. 

The implementation of this guidance has been successful in improving the services to veterans and their employment outcomes. The percent of participants receiving intensive services increased from 22% in Program Year (PY) 2009 to 76% in PY 

2015 (as of December 31, 2015). During that same time period, the entered employment rate for JVSG participants improved from 48% in PY 2009 to 57% in PY 2015. 

Similarly, the employment retention rate of these participants, or those who retained employment six months after program exit, increased from 74% in PY 2009 

to 81% in PY 2015, and the average six-month earnings of these participants rose 

from $14,751 in PY 2009 to $16,903 in PY 2015. 

23 

1 Examples include labor exchange services, career guidance, job search assistance, and referrals. 

We are committed to reaching and maintaining a rate of 90% of participants who 

receive intensive services from DVOPs. The rate of intensive services delivery is one 

of the Department’s five Agency Priority Goals and is reported publicly every quarter. To achieve this 90% goal, VETS employs these strategies to increase intensive 

services to participants who have significant barriers to employment and who are 

served by DVOP specialists: 

• Provide technical assistance and guidance to state workforce agencies; 

• Conduct Federal oversight and monitoring to identify best practices that can be 

replicated nationwide; 

• Conduct additional staff training and development for DVOP specialists; 

• Analyze the entered employment rates of participants based on the types of 

services they receive (i.e. basic career services1 versus intensive services); 

• Collaborate with Veterans Health Administration’s Compensated Work Therapy 

(CWT) staff at Veterans Affairs medical centers, to integrate employment services 

with clinical care; and 

• Collaborate with ETA, which oversees other employment and training services 

at American Job Centers, to ensure veterans receive priority of service and are properly referred to the appropriate service program. 

Additionally, veterans not served directly through JVSG still receive services from 

other facets of the workforce system. DOL’s WIOA core programs (Adult, Dislocated 

Workers, Youth, and Wagner-Peyser) provided workforce services to over 1 million 

veterans last year. More than 400,000 previously unemployed veterans entered employment after receiving services through the American Job Centers. 

WORKFORCE INNOVATION AND OPPORTUNITY ACT

In July 2014, after Congress passed the legislation by a wide bipartisan majority, 

President Obama signed into law the WIOA, the first legislative reform of the public 

workforce system in over fifteen years. This transformational legislation makes substantial changes in numerous DOL programs in order to modernize the workforce 

system to better meet the needs of workers and businesses alike. Specifically, WIOA 

brings together and enhances several key employment, education, and training programs and reaffirms the role of the AJC delivery system. 

WIOA moves Federal and state governments toward an integrated workforce and 

education system to better serve America’s job seekers, workers, and employers. 

WIOA requires the application of primary performance indicators to core workforce 

and education programs; the Department will apply those same indicators to other 

Department-administered programs, including JVSG. VETS has been in lockstep 

with our workforce and education partners to ensure that the JVSG program is included in all stages of this transformation. 

WIOA implementation and JVSG refocusing are two significant reforms currently 

underway in the workforce system, together enhancing employment and placement 

services for veterans. The Department is concerned about the potential negative impact the SOLVE Act would have by disrupting these two reforms before we have 

a chance to fully implement and evaluate them. 

IMPLEMENTATION OF THE SOLVE ACT

The JVSG program is already in the midst of significant programmatic changes 

due to WIOA and the JVSG refocusing that will require the time and attention of 

state and local workforce staff for their successful implementation. If a state were 

to transition the administration of its JVSG grants from its state workforce agency 

to its state veterans’ agency, that transition would have the potential to magnify 

the complexity of the adoption of WIOA and compliance with JVSG refocusing, 

compounding the risks of significant challenges in delivering effective employment 

services to veterans for years to come. 

DOL is also concerned about transition costs, particularly in light of the language 

expressly prohibiting additional funding. If a state were to shift management of the 

JVSG program from the State Workforce Agency to another agency, there would 

likely be costs associated with that transition. In reviewing State transition plans, 

we would need to ensure that the State’s transition plan addresses such costs without sacrificing services to veterans. 

Further, under the proposed language, approval of a state’s proposal of additional 

populations to be served under the JVSG program would necessitate adding staff 

to meet this unanticipated workload. The JVSG program funding is allocated by forVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
24 

mula and it is VETS’ experience that the existing DVOP staffing levels are insufficient to fully meet the demand for DVOP services already permitted by law, as reflected in the difficulty some states are having in meeting the target intensive services rate of 90%. Allowing additional categories of veterans to receive JVSG services 

will either require additional staff or will result in a lower share of participants receiving intensive services. In addition, there would be an adjustment period as 

States may need to hire or retrain staff to ensure the specialized needs of these new 

populations are met. I raise these concerns about undertaking the changes outlined 

in the SOLVE Act at the same time as WIOA and JVSG refocusing are implemented 

as they are significant and I urge the Committee to take the time to fully consider 

them. 

S. 2896—‘‘CARE VETERANS DESERVE ACT OF 2016’’ 

S. 2896 would, among other things, amend the Veterans Access, Choice, and Accountability Act of 2014 (the Choice Act), Pub. L. 113–146, to eliminate the sunset 

date for the Department of Veterans Affair’s Veterans Choice Program and expand 

eligibility for the program. The Choice Act contains an exemption from the laws enforced by the Department’s Office of Federal Contract Compliance Programs 

(OFCCP) for certain entities that enter into agreements with VA to provide health 

care through the Choice Program. Sec. 101(d)(3)(A) of Pub. L 113–146, as amended. 

The Department of Labor strongly supports providing the VA with the authority to 

purchase care and services in the community when such services are not reasonably 

available from the VA or through pre-existing contracting authority or sharing 

agreements. However, because simply extending the Choice Act would also extend 

the current exemption and leave veterans and other employees of Federal contractors without certain civil rights protections, we have serious concerns with the Care 

Veterans Deserve Act. 

OFCCP is the only agency with enforcement and compliance assistance authority 

for these protections, which are some of the most basic civil rights protections in 

Federal law. They prohibit Federal contractors and subcontractors from engaging in 

employment discrimination and require them to take affirmative action to ensure 

that job seekers and employees are treated without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as 

a covered veteran. These safeguards protect millions of workers, including those providing care for veterans. We cannot support legislation that rolls back these key 

civil rights protections, and urge the Committee to restore these important protections before lifting the Choice Act’s sunset. The Administration has put forward a 

legislative proposal that would provide VA the authorities it needs going forward 

when it is working with providers in the community while maintaining these important protections. We believe that this balance is the right one for veterans seeking 

care, the workers serving or seeking to serve those veterans, our veterans’ 

healthcare system, and the health care industry, 

CONCLUSION

In light of our concerns as expressed above, and the Department’s obligation to 

ensure effective coordination and integration of the JVSG program with the state 

public workforce system, we oppose the SOLVE Act. We believe we have made significant progress improving the employment outcomes of veterans, including 

through the more targeted provision of intensive services, and the SOLVE Act could 

reverse these trends. I remain committed to efforts to improve the administration 

of the JVSG program, and look forward to further dialog with the Committee in 

order to meet our shared goal of promoting full employment for the extremely deserving veterans and spouses covered by DOL programs. 

In addition, while DOL supports providing the VA with the authority to purchase 

care and services in the community when such services are not otherwise reasonably 

available, the Choice Act contains an exemption from the laws enforced by OFCCP 

that would leave veterans and other employees of direct Federal contractors without 

basic civil rights protections. DOL cannot support this statutory roll-back of civil 

rights protections, and urges the Committee to delete the OFCCP exemption before 

lifting the Choice Act’s sunset. 

This concludes my written statement. Thank you for the opportunity to be a part 

of this hearing. I welcome your questions. 

Chairman ISAKSON. Well, thank you for your testimony and the 

job that you are doing and the mention of WIOA. We are really 

proud of what we did when we reformed the Workforce Investment 

25 

and Opportunity Act and it is getting more training targeted at our 

veterans which is what it is all about, so thank you for doing that. 

We will start our round of questioning and I will be the first one 

to question. 

Secretary Gibson, correct me if I am wrong. You have provided 

the Committee with draft legislation, or draft language regarding 

changing the appeals process. 

Mr. GIBSON. Yes, sir, we have. 

Chairman ISAKSON. That is prospective in its nature, meaning it 

picks up with the first day it is enacted and it goes forward; it does 

not address the 445,000 waiting, is that correct? 

Mr. GIBSON. That is correct, Mr. Chairman. 

Chairman ISAKSON. What you sent us has not yet been scored, 

is that correct? 

Mr. GIBSON. We are still waiting for CBO to reach their final 

conclusion. We continue to hear that any day now, we will have the 

scoring results in. 

Chairman ISAKSON. At the risk of being redundant, but just to 

underscore what I have said from the beginning to Secretary 

McDonald, we need the exact language—— 

Mr. GIBSON. Yes, sir. 

Chairman ISAKSON [continuing]. We need a score, and we need 

to know what we do with the 445,000 who are waiting, because if 

we change the appeals process prospectively, which we want to do 

to make it shorter and better and more responsive to our veterans—— 

Mr. GIBSON. Yes. 

Chairman ISAKSON [continuing]. What happens to those 445,000, 

some of whom have been waiting 27 years for a determination of 

disability? So, when you bring us that package, it will be a trilogy. 

It is not just two chapters, it is three. What do we say to the veterans who have been waiting, 445,000 of them? How do we implement it? What is the cost of implementing the new program? You 

said you thought it was zero cost, but we have got to see that from 

CBO. And what is the final language? So, we are going to insist 

on all three of those things before this Committee moves forward. 

Mr. GIBSON. I understand, Mr. Chairman. I believe we furnished 

cost estimates associated with resolving the 450,000 existing 

claims. That would extend over a 4- or 5-year period of time. We 

have also provided the draft language. I think we are at least twothirds of the way there in terms of the requirements that you have 

requested, sir. 

Chairman ISAKSON. Recognizing that your answer to my next 

question is going to be an estimated guess and not a fact—— 

Mr. GIBSON. Yes, sir. 

Chairman ISAKSON [continuing]. Because before I ask the question, I am going to give you that much leeway. 

Mr. GIBSON. Yes, sir. 

Chairman ISAKSON. How much time do you think you are going 

to reduce appeals of disability in the future with the new language 

you are talking about? 

Mr. GIBSON. The goal—— 

Chairman ISAKSON. Understanding that currently, now, how 

many days is the current one averaging? 

26 

Mr. GIBSON. Well, you know, on average, about 3 years. For an 

appeal that goes to the Board, about 5 years. The objective that we 

set out to achieve here is for most appeals to be resolved within 

a year or less. It will take several years to work through the existing inventory of appeals that are out there under the old law, 

under the old processes, to work through all of those and to get 

those resolved. So, by 2021, 2022, somewhere in that timeframe, we 

have worked through the substantial majority of the old appeals. 

In the meantime, we would be processing new appeals under the 

new legislation beginning in 2018. 

Chairman ISAKSON. The determination you make is the determination of disability, is that correct, by percentage? 

Mr. GIBSON. That is correct, yes, sir. 

Chairman ISAKSON. Do we still—and I should know this—do we 

still have the concurrent receipt rule? 

Mr. GIBSON. Somebody help me out. 

Mr. MCLENACHEN. Yes, we do, Mr. Chairman. It has been 

amended several times over the past decade or so, but we still have 

that law. 

Chairman ISAKSON. I am going on my memory, which is shaky 

at best at my age, but thinking back, we moved it to 50 percent 

disability or more, to exempt them from concurrent receipt, is that 

right? 

Mr. MCLENACHEN. That is my recollection also, Mr. Chairman. 

Chairman ISAKSON. So, if their estimate of disability is lower 

than 50 percent, then they have an offset on their Social Security 

benefit from the disability benefit or the retirement benefit from 

the disability benefit. 

Mr. MCLENACHEN. This is one of the most complex things that 

we do in the compensation world. Since, as I said, the law has 

changed a couple times over the past few years, it continues to be 

a problem for us, yes. 

Chairman ISAKSON. Well, the reason I brought the subject up is 

I think that is a contributing factor to the number of appeals you 

get. Am I right? 

Mr. MCLENACHEN. I do not think I would go that far, Mr. Chairman. I think it is more as Deputy Secretary Gibson said. We are 

deciding more claims now. We know historically every year that 11 

to 12 percent of veterans file appeals, not necessarily related to 

quality. They have a right to appeal. It is not necessarily related 

to any one particular factor, such as concurrent receipt. Veterans 

exercise that right about 11 or 12 percent of the time. So, as we 

decide more claims, we get more appeals, and once it gets into the 

process that we have now, it is kind of a never ending churn. That 

is the problem we are trying to deal with here, which we have 

worked very closely with the VSOs to fix. 

Chairman ISAKSON. Well, I know it is a complicated issue and I 

appreciate the commitment you both have made to it. We will look 

forward to following it closely, as well as the CBO score and the 

final language when we get it. 

Mr. MCLENACHEN. Yes, sir. 

Chairman ISAKSON. Senator Blumenthal. 

Senator BLUMENTHAL. Thanks, Mr. Chairman. 

27 

Thank you all for being here today on legislation that is very important to our veterans. I take it, Mr. Gibson, that you have heard 

the remarks that were made this morning about Secretary McDonald’s comments yesterday and that you will convey that message to 

him, which I think is felt unanimously on this Committee. You 

heard that we are expecting perhaps more from him in the way of 

an apology. I know from having spoken to him that he certainly is 

regretful about those comments which I would think, knowing him, 

he would be. As you have also heard here, there is a strong feeling 

that we all make mistakes and—— 

Mr. GIBSON. Yes, sir. 

Senator BLUMENTHAL [continuing]. That often the best way to 

handle them is simply to make an apology and move on. As all of 

us know, actions in the end speak louder than words and his actions can speak louder than those words. 

Mr. GIBSON. I am very grateful for the even-handed approach toward this particular issue. I made some comments where I said, 

‘‘Bob and I.’’ Bob McDonald is like a brother to me; has been a 

friend over 40 years. If he were sitting here, I know he would have 

said the same thing I just said, but that does not take the place 

of him saying it. I understand, sir. 

Senator BLUMENTHAL. Let me talk about the appeals process reforms—— 

Mr. GIBSON. Yes, sir. 

Senator BLUMENTHAL [continuing]. Which are desperately 

needed—— 

Mr. GIBSON. Yes, sir. 

Senator BLUMENTHAL [continuing]. And I believe will actually 

save tons of dollars in the future. I wonder if you could elaborate 

on the long-term savings of this legislation and how reforming the 

appeals process will reflect timely results of appeals, and also dollar amounts that may be saved and why that will be so, just so the 

public understands as well as us. 

Mr. GIBSON. Yes, sir. I would like to ask Dave to answer that 

question. 

Mr. MCLENACHEN. Senator, I guess the bottom line is it would 

be a tragedy if we do not take this opportunity at this time, where 

we have worked in collaboration with the VSOs and other stakeholders, to do exactly what you said, which is solve this problem 

for all veterans in the future. 

Just to talk you through a couple of those points, as the Deputy 

Secretary said, if we look out 10 years, we are looking at an average 10-year wait time on an appeal. Currently, VBA is deciding initial claims in 125 days. Now, the average is down to around 90 or 

95 days. It simply is unacceptable to decide a claim in that amount 

of time and then have a veteran wait, on average, 10 years for a 

decision. That will only get worse after those 10 years if we just 

let the current process go. 

We estimate that in about 10 years, we would have 1.2 million 

appeals pending as opposed to the 455,000 that we have right now. 

The bigger tragedy would be that veterans would be deprived of all 

the great features of the new design that we have come up with. 

I am sure you will have a lot of opportunities today to hear about 

28 

some of those features, which were also listed in the statements 

that were offered for this Committee hearing. 

Let me just hit a couple of them real quickly. Early resolution 

of appeals—Veterans would have an opportunity when they get a 

decision from VBA to have veteran notice about what options are 

available to them, and based on that notice—the features of which 

we have included in the statutory language—they would be able to 

decide which is the best option for them. Do they get a second look 

at it in VBA by a higher level authority? Do they select submitting 

additional evidence in VBA? Or do they go to the Board, straight 

to the Board for a Board decision? In all respect, effective dates 

would be protected, something that is not available now; they have 

to go into the appeal process. 

There would also be quality feedback loops for VBA, something 

that we cannot have now because the claim is constantly evolving 

in the appeal process. The new design would have two feedback 

loops for VBA. One would be in the higher level review within VBA 

and the other would be from the Board, because the Board and the 

higher level reviewer would be looking at the same evidence that 

was before the original adjudicator—a quality feedback loop that 

we have never had in VBA. That is critical. That was some of the 

feedback from VSOs and other stakeholders, that that was critical. 

Transparency. Today, veterans do not know whether their appeal 

is in VBA or whether it is at the Board or whether it is bouncing 

back and forth between those two agencies. The design would answer that question. They would know that their claim decision is 

being reviewed in VBA or it is at the Board and it would be done 

in a timely fashion, within 125 days or within a year at the Board. 

Taxpayers—you know, the alternative is, taxpayers for the next 

10 years and far into the future are pouring money into a broken 

process. I think that is something that we all agree on, that this 

process is broken and it is just simply unjustifiable that taxpayers 

would continue to dump money into a process that does not work. 

I think when you look at all those options that are available to 

us that we all agree upon, to include our partners at the VSOs and 

other stakeholders, there is simply no option that is available here. 

Senator BLUMENTHAL. My time is expired. I may have some additional questions that I want to submit for the record, but in deference to my colleagues, I will yield. 

Chairman ISAKSON. Senator Moran. 

STATEMENT OF HON. JERRY MORAN, 

U.S. SENATOR FROM KANSAS 

Senator MORAN. Mr. Chairman, thank you and Senator 

Blumenthal. 

Deputy Secretary Gibson, thank you for your presence today. 

Secretary Michaud, nice to see you again. I remember positively 

our work on the House Veterans’ Affairs Committee and wish you 

well in the position you now occupy. 

Let me first begin with a compliment to a couple of folks at the 

VA, one of them in the room. Dr. Yehia, thank you very much for 

your help along with one of your Congressional Affairs colleagues, 

Jeremy Dillard. Mr. Secretary, in one of our hearings which you 

were in attendance last December, you offered if I would give you 

29 

some examples of people who were struggling with the Choice Act 

that you would see that those issues were addressed. One of them 

we just resolved last week, that was in large part due to those two 

individuals who took this veteran’s case and saw the justice, in my 

view, finding the right solution. 

This was an instance in which a veteran had been told by a VA 

physician’s assistant that he qualified for the Choice Act, sent him 

to another provider, but there was no paperwork completed by the 

veteran. Then the VA in Kansas determined he was not eligible 

and was responsible for his own bills, despite being told by the VA 

physicians assistant that he needed to do what he did. So, thank 

you for those efforts. 

I know the goal is to get this to the point in which it is not one 

veteran at a time, but for now, we will take them one at a time 

and try to solve them as we get the system to work better, so thank 

you very much. 

Mr. Secretary, I want to talk to you about ARCH, which is a conversation that our offices have had over a period of time. When I 

was a House member with Secretary Michaud, I represented a 

Congressional district larger than the State of Illinois that has no 

VA hospital. In fact, at that time it almost had no VA facility at 

all. We pushed for outpatient clinics and were successful with the 

VA in providing those. But, it is still long distances to an outpatient clinic and that is in part the efforts that we have had for 

a long time to establish something now called the Choice Act that 

gives veterans more options at home. 

Mr. GIBSON. Yes, sir. 

Senator MORAN. I continue to be supportive of that effort, but as 

a pathway to something like Choice, we created ARCH. I introduced the legislation in the House, it became law, and it was a 

pilot program to determine how this might work. I assume it is 

who the providers would be, how we would pay the bills, what the 

computer connections would be, those kind of things. 

One of those pilot programs—I think there were six in the country—one of those is in Kansas, so we have cared a lot about this. 

The goal here today is to make certain that those veterans who are 

participating in ARCH as we move to Choice do not lose their care 

with the provider that they currently are seeing. 

Mr. Secretary, for the VA, you have made decisions that I applaud and appreciate which is the special provider agreements 

where you are going to allow ARCH veterans, those who are participating in an ARCH program, to continue their current care with 

their ARCH provider, and you are doing so under a proviso that 

allows you to do that because of excess burden. 

So, Mr. Secretary, I want to thank you for those efforts to take 

care of those who might otherwise qualify for Choice, but in the 

process of qualifying for Choice would lose the provider they have 

today with the VA, and this keeps that patient contact in place for 

the future. So, thank you for that. 

I also have introduced legislation, which is one of the items that 

is for consideration in the Committee hearing today. It is my understanding, Mr. Secretary, that you, the VA, supports the codification of your decision and that we have worked closely with you and 

your staff. In fact, you have made some technical suggestions that 

30 

would improve the bill which we have agreed to. I just want to 

make certain that my colleagues, the Chairman, the Ranking Member, and my colleagues on the Committee, understand that this legislation has the Department of Veterans Affairs support. It is also 

my understanding it has the support of both the minority and the 

majority in this Committee. 

So, Secretary or Doctor, if you would tell us your thoughts about 

this option for ARCH veterans to continue under the program. 

Mr. GIBSON. I would be glad to, and I will defer to Baligh if I 

do not get this exactly right. Yes, we are very much in favor of the 

legislation. I appreciate the kind remarks and the feedback that 

you have given. Quite frankly, this is the right thing for veterans 

and the right thing for taxpayers, which makes that the high 

ground and we are proud to stand on that high ground with you. 

Dr. YEHIA. Yes, we are very supportive of that language. We appreciate the comments and also the close collaboration we have had 

with your office and others to achieve that. In all honesty, ARCH 

is what we—a lot of the features of ARCH is what we want in our 

consolidated plan as community care moves forward. So, we really 

think of it as a model of how we progress forward. 

You touched on a couple key points that we want to maintain, 

which is that care coordination, that direct relationship between a 

patient and a doctor. Those are critically important, some of those 

that have been missing in Choice today, which we hope to fix with 

partnership with Congress. So, thank you for that. 

Senator MORAN. Doctor, Mr. Secretary, thank you very much. 

Chairman ISAKSON. I want to thank Senator Moran for bringing 

that subject up, because your work with the Committee on provider 

agreements and what we are trying to attempt in the omnibus is 

making all this possible. The VA has been very much reaching out, 

and your leadership in passing ARCH to begin with and now memorializing that program in provider agreements and equalizing 

reimbursement across programs so everybody is the same was a 

tremendous move forward, which is another reason why we have 

got to get the Veterans First bill out of the Senate and over to the 

House as soon as we can. 

Senator Tester. 

Senator TESTER. Thank you, Mr. Chairman, and thank you all 

for being here today. I appreciate your testimony and your support. 

Back in the day when Choice was created, I supported it because 

I thought it was going to expedite care in the community when the 

VA could not provide that care. The bill also provided critical investments in VA’s capacity, both in workforce and in infrastructure, to address the long-term needs of the VA. 

However, some supported the creation of the Choice program as 

a first step toward privatizing the VA or simply outsourcing as 

much care as we possibly could to the private sector where the VA 

could not financially stay in business or there was not a financial 

justification for it. 

I have read through most of the VSOs’ testimonies and I can say 

that almost every VSO, if not every VSO, has said that they do not 

want the VA privatized. They also say the Choice program needs 

adjustment, and I think that is where the Veterans First Act comes 

31 

in; and that, by the way, will not be the last time we adjust the 

Choice program. 

So, Sloan, I just would ask you if from your experience in the private sector and the experience that you have had in the VA, would 

it not make more sense to fix the Choice program first before we 

made it permanent? 

Mr. GIBSON. I think the challenge that we are wrestling with 

right now is the rationalization of seven different programs for care 

in a community. So, in many respects, we do continue to try to fix 

the airplane while we are flying the airplane and that presents 

some challenges. I would tell you, if I had it to do over again, the 

biggest mistake I made in the last 2 years at VA was not asking 

for more time to implement Choice. I should have done that, and 

that is on me. I own that decision. 

I think the work that we are doing around the consolidation of 

care, we are heading clearly and precisely in that direction, and 

whether or not Choice by that name becomes permanent or temporary is less relevant to affecting the changes to and the consolidation and streamlining of the various programs for care in the 

community. 

Senator TESTER. Well, I would just—this is not a question, this 

is a statement. I just think it is incumbent upon this Committee, 

and I think it is one of the reasons I am so proud of the Chairman 

and Ranking Member for getting the Veterans First Act up, because I think it is a step in the right direction. 

I do think that as we look to try to make Choice all it needs to 

be to meet the needs of the veterans, it may come to a point where 

we just say, hey, there is a better system out there, too, and that 

is the only reason I bring that up. 

Baligh, it is good to see you. Thanks for coming to Montana. 

Dr. YEHIA. Thank you, Senator. 

Senator TESTER. It sounds like you did good work in Kansas. You 

have done good work in Montana. We need to probably keep you 

around. 

Tell me what the major take-aways in the deliverables were from 

your trip to Montana, or your trips around the country, quite 

frankly, to make Choice work better, particularly as it applies to 

rural areas. 

Dr. YEHIA. Well, thank you so much for those comments. Montana—and I was recently in Maine and Alaska—and what rang 

true was the different experience that rural veterans have compared to those that live in urban areas. When we think about how 

we consolidate community care, we need to make sue that no one 

is left behind, that the program is able to take into account every 

single sub-segment of the population, wherever they live. 

What does that really mean? That means we need flexibility in 

reimbursement rates, because we know in some areas we might 

have to pay a little bit more to get doctors to see our patients. We 

need to make sure that the 30 days and the 40 miles are just a 

floor. If a veteran is seeing a provider and that provider decides 

that seeing someone in the community is what is best for them, we 

need to make sure that we empower them to do that. 

So, those trips really kind of solidified for me what those unique 

features are of rural veterans and how we need to make sure we 

32 

do not have a cookie cutter approach to community care, but we 

tailor it to different geographies and populations. 

Senator TESTER. Because I have visited with veterans in Montana and their experiences with Choice almost every time, if not 

every time, a third-party provider by the name of Health Net has 

come up; I am probably not Health Net’s favorite Senator at this 

point in time, but that really does not matter. My question is, has 

Health Net delivered on the promises that they have made when 

they got the contract? 

Dr. YEHIA. You know, I have a meeting every week with the 

Health Net executive and the TriWest executive because we need 

to do better for this program. They have been leaning forward more 

in recent months than before. We have set up joint groups of VA 

and our contracting partners. Now, when I go across the country 

to talk to veterans and providers, I make sure they come with us, 

because they need to hear directly from veterans and the doctors—— 

Senator TESTER. Right on. 

Dr. YEHIA [continuing]. About how they can improve. 

I will say, things are getting better. We are definitely not where 

we need to be, but on both the VA side of the house and the contractor side of the house, there has been improvement since the 

start of the program. 

Senator TESTER. In closing, I would just say that veterans see 

Health Net as the VA, and that is not particularly healthy for the 

VA, because you guys are, at least in Montana, held in pretty high 

regard once the folks get through the door. So, they really need to 

start flying right which is why I am such a strong supporter of the 

Veterans First Act. 

Thank you, Mr. Chairman. 

Chairman ISAKSON. Thank you, Senator. 

Senator Tillis. 

STATEMENT OF HON. THOM TILLIS, 

U.S. SENATOR FROM NORTH CAROLINA 

Senator TILLIS. Thank you, Mr. Chair. 

Thank you all for being here. It is good to see you and I want 

to thank you again for your continued investment and time with 

my office, and Senator Tester talking about the breakthrough priorities and the transformation effort you all are under. 

I want to just speak briefly on—I have been here since January 

2006, about seven dog years, and I have to say, in the length of 

time that I have been here, I really want to dispel the notion, at 

least on the Senate side—I cannot speak for the House—I do not 

know of anyone here who has had a serious discussion about privatization of the VA. I have said this before in committee. All you 

have to do is go out to the health care centers, you go out to the 

VA hospitals, and you understand the unique environment that 

they create that is uniquely therapeutic to a large base of veterans 

who need that facility. 

So, I do not know—I seriously do not think that there is any effort to do that, and the fact of the matter is, a good portion of the 

VA has been privatized for some time through the non-VA care and 

now through Choice. It is a matter of getting the right balance. 

33 

It is also a matter of making sure that we do not go forward too 

quickly. I was, or am, a cosponsor of Senator McCain’s Care Veterans Deserve Act, but within about 24 or 48 hours of us announcing that bill, I reached out to the VA to say, let us discuss the people, process, technology, and time implications of the bill. Let us 

reconcile it against transformation authorities, determine to what 

extent this may be a different suggested means to an end that you 

already have in mind. We have to continue to keep that dialog 

going. When we do that, I think that the difference in outcomes are 

not significant and that is a way we can get to a productive place 

to then determine additional authorizations and then appropriations that may be necessary if we are going to complete the picture. 

I think it is critically important that the Department articulate 

in a very focused way how a well-intentioned idea is potentially 

disruptive to a number of other good ideas that are already stacked 

up that we intend to bring online. So, we have to keep that discussion going. 

I do not think anyone at the end of the day has a concern with 

what Senator McCain and the team have crafted. It is more a matter of how it could potentially be disruptive and problematic to 

other things that we have to get done. 

Now, moving on to other bills, one, I thank the senior Senator, 

Senator Burr, for his past work on the toxic substances exposure 

challenges that we have down in Camp Lejeune. I am glad to see 

that we generally have good support for that, and Mr. Chair, I hope 

we are able to move through with that fairly quickly. 

I also want to thank Senator Klobuchar for the work that we are 

doing on the burn pits legislation. Again, I do not think it is controversial. We have an opportunity here to get at the head of the 

curve and not have the burn pit exposures be our Middle Eastern 

war’s Agent Orange. I think we need to be productive, establish a 

Center of Excellence, and get that going. I do not think that that 

is necessarily destructive. In fact, I think it could be very helpful 

to future VA claims if we utilize science, get the practices right 

now to make that a better practice at the time that the soldiers or 

the veterans may need their help. 

Then, on the Newborn Care Improvement Act, I get that you like 

it as long as we pay for it. What we are here to talk about now, 

and I think that can be said, you all probably have a rubber stamp 

somewhere. I think here, what we are talking about is authorizing 

programs, and we have to have a separate discussion about appropriations, how we have to pay for it. So, I appreciate the position, 

I think with the limited or no qualifications on those bills. 

So, Mr. Secretary, I think that what we need to continue to do, 

though, is get very quickly to where we can get this framework in 

place. We are working with the VA on it, so that we can in a very 

constructive way communicate back to the members how the time 

and the technology and the people and process implications of wellintentioned initiatives affect your overall transformation strategy. 

If we do that, in some cases, we may find out that there is a fork 

in the road that we should take because we have discovered something that may be more promising or have more value. We need to 

really have that evaluation. 

34 

I know it is sometimes difficult for the Department to communicate that back because it becomes adversarial. We need to start 

getting some muscle memory into that just being a better way for 

us to engage so that we keep you all on what I think is a fundamentally sound overall transformation strategy. 

Mr. GIBSON. I agree. As we discussed, I think there is an opportunity for that kind of informal exchange of information early in 

the process, particularly on legislation that we believe has the momentum associated with it and would see it through to potentially 

a floor vote or at least a vote out of Committee. 

Senator TILLIS. Thank you. Also, just a closing comment, I know 

the Chair and the Ranking Member have talked about Secretary 

McDonald’s publicized comments. I agree with them, that I can understand maybe what he was trying to communicate, though probably not the best way to communicate. What he is trying to do is 

provide excellent service as an organization. Get that past us fairly 

quickly so that we can focus on what I think is a productive working relationship. You have got a lot of work to do. Much of the 

swamp was there before you all came in to start draining it, but 

we have got to make sure that we just keep on working on positive 

messaging and do the best we can for the veterans. 

Mr. GIBSON. Thank you for your very even-handed remarks. 

Senator TILLIS. Thank you. 

Chairman ISAKSON. Thank you, Senator Tillis. 

Senator Manchin. 

STATEMENT OF HON. JOE MANCHIN III, 

U.S. SENATOR FROM WEST VIRGINIA 

Senator MANCHIN. Thank you, Mr. Chairman. 

Thank you all for your appearance today and for the hard work 

that is being done. This is one Committee that you are going to see 

is mostly bipartisan because we are here for one purpose. We all 

have VAs and we would not be sitting here without them and you 

would not be sitting there without them. So, we are all committed 

and dedicated. No one is throwing stones at all. Secretary McDonald has proven he is as human as we are. Welcome to our world. 

We understand that and we just hope that he continues to do the 

good work that he is doing. All of your actions and his actions— 

picking you all has spoken volumes about caring for our veterans 

and why that comes first. 

You know, and I am just going to call you Dr. Y. [Laughter.] 

So, Dr. Y—— 

Dr. YEHIA. It works for me. 

Senator MANCHIN. Huh? 

Dr. YEHIA. I said, works for me. [Laughter.] 

Senator MANCHIN. You know, this whole thing about Choice and 

how we could—when it all was unveiled about how long the waiting time and the horrible situations that our veterans were in for 

the purpose of some unscrupulous people within the system, I 

think that has been cleared up. I think we are moving forward and 

past that. 

Then it came to light about Nuka, what Alaska was doing, and 

how they were doing it better, cheaper, quicker, and faster. So, we 

are going to say, well, if it works there, why does it not work everyVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6601 Z:\ACTIVE\052416.TXT PAULIN
35 

where? When you start talking to the veterans—you know, the veterans love their VAs. They love their hospitals. They love their 

CBOCs, because they know that people understand them. We are 

just trying to find that perfect blend, you know. I think that is it, 

the options. I know that Senators Tester, Tillis, and others are 

pushing the envelope now. How do we make it better? So, I do not 

think anyone is casting stones at you all but we are saying, can we 

make it better? 

Dr. YEHIA. Yeah. 

Senator MANCHIN. Can we make sure that each veteran knows 

that they come first? We see it has worked in Alaska. We do not 

have a hospital in Alaska, do we? 

Dr. YEHIA. We do not have a full-fledged hospital. 

Senator MANCHIN. No full-blown hospital, OK. And most of the— 

they are going to the Native American clinics, right—— 

Dr. YEHIA. That is right, and the DOD. 

Senator MANCHIN. They get priority billing on that. Which is, I 

think, what we tried to do, model that, a little bit after that, to get 

the same flow in some of our rural areas. 

You know, when Choice came out and the 40-mile rule, well—40 

miles as the crow flies is like 85 miles by the way we drive in West 

Virginia. If you have never been to West Virginia, it is so beautiful, 

and we give you the roads so you can enjoy the beauty. [Laughter.] 

With that being said, you all made those adjustments. We appreciate that. Tell me how we go to the next step. How can we give 

these options? I know that you are afraid we are going to throw 

the baby out with the bathwater, the cost is going to be exorbitant, 

boom, boom, boom, but we did not see that in Alaska. We did not 

see that in places where it works. 

Dr. YEHIA. Yeah. You know, your point about the special role 

that VA plays is true. I was in clinic 2 weeks ago when I was seeing patients. I saw one of my patients in the waiting room. I 

thought, I did not see you on my calendar today. I did not know 

we were meeting. Oh, no. He says, I am just here kind of catching 

up with my buddies. You do not do that in other hospital systems. 

Senator MANCHIN. Sure. 

Dr. YEHIA. It is a very different place. I think we have to recognize that, as you did. At the end of the day, what we are looking 

to do is to get the best of both worlds. How do we play off the 

strengths of the VA and then play off the strength of the private 

sector? 

In some areas, in Alaska, we probably are going to purchase 

more care than make. In other areas, we might be making more 

care than buying. It is really getting us to an integrated health 

care network and that is what we put forward in our plan to consolidate community care. We talk about how, by allowing flexibility 

for the doctor, for the patient, and for the system, we can achieve 

the right balance in different markets. 

So, I think we have a good plan going forward. We just need the 

partnership, continued partnership with Congress to move some of 

that stuff past the finish line. 

Senator MANCHIN. I want to say one thing on the opiates. You 

know, I was at our VA hospital in Clarksburg, WV, which has been 

there for quite some time and it is a beautiful operation for our vetVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6601 Z:\ACTIVE\052416.TXT PAULIN
36 

erans. I spoke to one of your doctors who ran the CBOCs, and she 

is very direct. The reason I am saying this is the feedback I received from that gave us the impetus to move on legislation that 

would not keep ratings, because she said if these guys cannot call 

you guys, meaning the legislature, which is the Congress, and tell 

them that we did not do good by them because they were not given 

the pills they wanted, then we could do our job a little bit better. 

Very direct dialog. 

We came back and formed legislation now that, basically, any 

time opiates are dispensed in the hospitals in any type of a setting, 

it cannot be used in a rating system, because an addict is not going 

to give you a good rating if they do not get what they want. It 

made such sense. That came from you all, the feedback. So, I want 

to thank you for that. 

We are trying, we truly are, Mr. Gibson, to find that balance, and 

the biggest thing we have is people that need special care. Sometimes, we do not offer that or we do not have that expertise. How 

quickly can we get there, and what is the correlation between the 

private sector doctors responding back to you all, you know, and 

that correlation between someone outside the VA and the VA itself. 

Mr. GIBSON. Well, that is the integrated network that Baligh is 

referring to—— 

Senator MANCHIN. Right. 

Mr. GIBSON [continuing]. That we are working to build and create, and—— 

Senator MANCHIN. That is the biggest challenge you have right 

now, getting that—— 

Mr. GIBSON. I think it really is. 

Senator MANCHIN. Yeah. 

Mr. GIBSON. We want this to be seamless for the veteran. It 

ought to be about what is the right thing for veterans and taxpayers. Every time we are looking at this question, it is that dynamic. Can we make it with better value than we can buy it? Then 

we ought to be making it in a particular location. If we get better 

value by going—better care quality and better value for taxpayers 

by going in the community, that is where we need to go to provide 

that care for the veteran. And in rural communities, which Alaska 

is a great example, we are probably going to buy more care than 

we make. 

Senator MANCHIN. We are fine with that, and I think that is 

where Thom, where you are coming from, too, right? 

Senator TILLIS. [Nodding in agreement.] 

Thank you. I really do appreciate it, and tell the Secretary, do 

not let the SOBs get him down. 

Mr. GIBSON. I will do that, sir. He hears that from me regularly, 

so I will repeat it. Thank you. 

Senator MANCHIN. He will be fine. 

Chairman ISAKSON. Thank you, Senator Manchin. 

Senator Heller. 

STATEMENT OF HON. DEAN HELLER, 

U.S. SENATOR FROM NEVADA 

Senator HELLER. Thank you, Mr. Chairman. 

I think I am one of those SOBs. [Laughter.] 

37 

Mr. GIBSON. No way. 

Senator HELLER. I am grateful that the panel is here and I want 

to thank you for taking time. As the Chairman knows, I wrote a 

letter to the Secretary yesterday, disappointed in his choice of 

words, and I want you to know that I do not hold anybody here 

on this panel responsible for the poor choice of words that were 

made by the Secretary yesterday. 

In fact, I was going to let it go until I got this note here from 

his office, from the Secretary himself prior to this hearing. Without 

reading all of it, if I may, Mr. Chairman, it said, ‘‘I would like, Senator Heller, to focus on substantive issues and not on what I said 

yesterday.’’ Frankly, I think what he said yesterday and what he 

said about the VA claims backlog is a substantive issue, and I 

think most on the panel today would agree with that. 

I would like to share something of a text that I received yesterday from a veteran in response to a letter that I sent. He says, 

‘‘Give them hell, Dean. For the amount of money they are paid, 

they should get in line like the veterans and see how they like it.’’ 

Now, this particular veteran served in the Korean War. He was a 

Marine, one of the chosen few. He also happened to be the State 

Treasurer of Nevada. His name is Mr. Ken Santor. 

Secretary Gibson, I did not hear your comments—I apologize for 

being late—when I came in. But, would you tell me how the Secretary would respond to Mr. Santor if he were in the room today? 

Mr. GIBSON. Anyone that knows Bob McDonald knows that he 

would not for an instant entertain any kind of a notion of diminished importance for timely access to care for veterans. Bob was 

trying to make a point about service quality. I think the analogy 

was not a good analogy, not a good point of comparison. 

As I read to this Committee before you arrived, sir, a verbatim 

quote of mine when I was the Acting Secretary in July 2014, where 

I noted the fact that having a single wait time standard for care 

in the largest integrated health care organization in America really 

did not make a whole lot of sense and that I fully expected, over 

time, what we would be doing is very much like private sector 

health care, migrating toward much more of a focus on patient satisfaction around access, which is precisely what we have been in 

the process of doing. That is not to the—with disregarding wait 

times. Where we are intensely more focused on wait times has to 

do around the urgent care needs of our veterans. 

You know, we could say every single veteran gets an appointment within 30 days and still we would fail every single veteran 

that needed to be seen urgently today or tomorrow. That is—it is 

that kind of a single wait time standard, a single number of days 

is not meaningful, and that is why you do not see private sector 

health care organizations managing access to care in that way. 

They look principally at the satisfaction of their patients. 

What we are trying to do is to focus very intensively on access. 

Wait times are very important where we are trying to ensure that 

timely access to urgent care services are required. You can look at 

the laundry list. The number 1 priority of the entire Department 

right now is improving access to care. We are committed to making 

primary care services available on a same-day basis at every single 

medical center across the country. We are doing that today in 34 

38 

different medical centers. We have committed to mental health 

evaluations on a same-day basis. We have committed to seamless 

care for veterans who may be traveling or who are seeking care or 

prescription refill at a facility that is not their regularly registered 

facility. We are training 25,000 schedulers across the organization. 

We are rolling out new scheduling software. 

We are completely changing the health care enrollment process. 

By July, a veteran either by telephone or online will be able to 

complete the entire enrollment process and in most instances be 

able to get an answer almost immediately. Since the beginning of 

this fiscal year, every newly enrolled veteran—there have been 

about 200,000 so far this year—received a phone call from VA welcoming them to VA, asking if they want to get an appointment 

scheduled, helping them identify the nearest medical facility where 

the care they need is offered, and introducing them to their other 

benefits. Veterans are rating that experience almost perfectly, 4.9 

out of five. 

This is the kind of—this is the way we are approaching this, trying to look at everything we do from the perspective of the veteran 

to give the veteran the very best care experience we can give. 

The point Bob was trying to make had to do with all of that is 

about a lot more than wait times. Wait times are still important 

and we have still got a lot of work to do about improving access 

to care. 

Senator HELLER. Mr. Gibson, I appreciate your comments. You 

have got to understand that I am a little sensitive on this particular topic. I come from a State that had the worst wait times 

when it came to benefits. We were at—our regional office was one 

of the worst in the country just a few years ago and good improvements have been made. But, we have 300,000 veterans in the State 

of Nevada and you can imagine the sensitivity of comments similar 

to that. 

Mr. GIBSON. In the month of April, 3,143 veterans completed appointments that were over 30 days. That is too long. 

Senator HELLER. Yes. 

Mr. GIBSON. Now, there were 68,000 completed appointments 

that were under 30 days. But, again, the 30-day standard, for a lot 

of those veterans that got in quicker than 30 days, we still might 

have let them down because they may have needed to be seen sooner, which is the goal that we are after. It has got to be from the 

veteran’s perspective. We cannot do this from the inside out. We 

have got to do it from the outside in, and that is what we are trying to put in place. 

Senator HELLER. Thank you very much. 

And former Congressman Michaud, I welcome you also. I remember fondly our time together in the House, so thank you for being 

here today. 

Thank you for the answers to my questions. 

Mr. GIBSON. Yes, sir. 

Senator MANCHIN. Mr. Chairman, I want the record to be very 

clear that I did not refer to my good friend from Nevada as an 

SOB. [Laughter.] 

Or any of my colleagues who I think the world of. I am thinking 

of—the people I am referring to are those who do not know the job 

39 

that has been done. They are quick to criticize without knowing the 

hard work that goes behind it. 

Senator HELLER. Thank you, sir. 

Senator MANCHIN. My good friend from Nevada, thank you. 

Chairman ISAKSON. Well, thanks to our first panel. We thank 

you all for your attendance and your input. We will welcome our 

second panel to come forward. [Pause.] 

RESPONSE TO POSTHEARING QUESTIONS SUBMITTED BY HON. JOHNNY ISAKSON TO

U.S. DEPARTMENT OF VETERANS AFFAIRS

Question 1. The agenda for the hearing included a draft bill containing the proposal from the Department of Veterans Affairs (VA) for reforming the disability 

claims appeals process. In connection with that proposal, VA provided the Committee with data reflecting projected total and individual productivity levels under 

the current appeals process compared to what VA expects under the proposed new 

appeals process. That data reflects that currently the Veterans Benefits Administration averages 79 case resolutions or transfers per full-time equivalent (FTE) and the 

Board of Veterans’ Appeals averages 47 resolutions or transfers per FTE. Under the 

new appeals process, VA projects productivity levels of 128 decisions per FTE in the 

supplemental claim lane at the Veterans Benefits Administration; 309 decisions per 

FTE in the higher-level review lane at the Veterans Benefits Administration; 180 

decisions per FTE in the no-hearing lane at the Board of Veterans’ Appeals; and 

130 decisions per FTE in the hearing lane at the Board of Veterans’ Appeals. 

A. Please provide an explanation of what factors are expected to allow for each 

of those increases in individual productivity, including any statistics, trends, studies, or other relevant information used in generating those projections. 

Response 1A. VA based its productivity estimates on the work rate standards 

(WRS) as published in the Veterans Benefits Administration’s (VBA) Management 

Operations Manual M21–4, Appendix B. VA used the estimated fully-loaded labor 

hours required to complete end products associated with common disability rating 

claim work products. Fully-loaded labor hours include direct employee time spent 

adjudicating the claim, while indirect time is time spent by supervisory, managerial, 

and administrative staff who support the direct-labor workforce. Additionally, VA 

used a standard annual availability rate of 1,576 hours per Full Time Employee 

(FTE). Although the Office of Personnel Management uses 2,087 hours when computing basic rates of pay, VA depreciates the number of available hours by approximately 25 percent to account for leave, training, meetings and other time spent in 

pay status but not directly contributing to the completion of a disability rating 

claim. 

For the supplemental claim lane, VA’s estimated level of effort is based on approximately 8.45 labor hours to complete a supplemental disability rating claim. For 

these claims, an employee would complete approximately 187 claims per year. However, VA considered increased claims complexity since 2006 when the WRS were 

last reviewed and determined that the calculation should be adjusted. Over the past 

5 years, VA’s data shows that the number of disabilities decided per claim has increased by approximately 45 percent; thus, VA increased the number of labor hours 

necessary to complete supplemental claims commensurately to account for the additional processing time required to decide claims with higher numbers of claimed disabilities. This dropped the number of supplemental claims decided yearly per FTE 

from 187 to 128. 

For the higher level review lane, VA’s estimated level of effort is based on approximately 3.42 labor hours to complete a rating review action for a service-connected disability rating claim where the Veteran’s disability requires an additional 

examination to review the current evaluation. However, claims considered in the 

higher level review lane will require employees to review prior actions on the claim 

to ensure compliance with VA’s duty to assist, and will often require employees to 

review multiple issues. As such, VA has determined that the estimated labor hours 

for this lane should be adjusted up by approximately 49 percent—from 3.42 to 5.09 

labor hours per rating review—to account for the anticipated complexity of claims 

considered under this higher level review. This dropped the number of reviews completed yearly per FTE from 461 to 309. 

Regarding individual productivity at the Board of Veterans’ Appeals (Board), the 

question above states that data provided by VA to the Committee reflects that, currently, the Board averages 47 resolutions or transfers per FTE. VA interprets 

‘‘transfers’’ as referring to cases that are remanded by the Board to the Agency of 

40 

Original Jurisdiction (AOJ). To clarify, this number should be updated to reflect 86 

decisions (resolutions and remands) per Board FTE. In Fiscal Year (FY) 2015, the 

Board completed a total of 55,713 decisions, with an average of 86.3 decisions/dispositions per FTE. The 86.3 dispositions per FTE include both decisions and remands. Of the 55,713 decisions/dispositions completed by the Board in FY 2015, 

46.4 percent were remands to the AOJ. As previously reported, the average 47 resolutions per FTE reflected final decisions, not remands, completed by the Board. 

As stated in the FY 2017 budget request, which has received support in both the 

House and Senate, sweeping legislative reform is needed to ensure that Veterans 

receive timely and quality appeals decisions. The FY 2017 budget proposed a Simplified Appeals Process—legislation and resources (i.e., people, process, and technology) that would provide Veterans with a simple, fair, and streamlined appeals 

process in which the vast majority would receive a final decision on their appeals 

within one year from filing the appeal. Specifically, the FY 2017 budget request included three legislative proposals which outlined changes to the VA appeals process 

to create a Simplified Appeals Process: one proposal to close the evidentiary record, 

with very limited exceptions, at the time that a claimant is provided notice of the 

AOJ’s decision; a second proposal to transfer jurisdiction over an appeal to the 

Board at the time of receipt of a Notice of Disagreement (NOD); and a third proposal to eliminate optional Board hearings. Under the Simplified Appeals Process 

outlined in the FY 2017 budget request, VA projected that the Board would complete an average of 180 decisions per FTE. The Simplified Appeals Process outlined 

in the FY 2017 budget request started a conversation about appeals reform and led 

to a wide spectrum of stakeholder groups meeting with VA to reconfigure the VA 

appeals process into something that provides a simple, timely, transparent, and fair 

resolution of appeals for Veterans and makes sense for Veterans, their advocates, 

stakeholders, VA, and taxpayers. The result of those stakeholder meetings was the 

new appeals framework, as outlined in the draft bill considered during the hearing. 

While the new appeals framework has changed from the Simplified Appeals Process 

outlined in the FY 2017 budget request, we still expect increased productivity in the 

new framework and, because of similarities with the Simplified Appeals Process, we 

expect the same level of Board productivity in the non-hearing option lane. 

In the non-hearing option lane, the evidentiary record before the Board would be 

limited to the evidence of record at the time of the AOJ decision on appeal, which 

is very similar to the Simplified Appeals Process, in which the evidentiary record 

closed at the time the claimant was provided notice of the AOJ’s decision, with an 

exception for additional evidence added as a result of a remand to correct a duty 

to notify or duty to assist error that occurred prior to the initial AOJ decision. Also, 

in the new appeals framework, as in the Simplified Appeals Process, jurisdiction 

over an appeal would be transferred to the Board by filing an NOD. The non-hearing option lane in the new appeals framework is also similar to the Simplified Appeals Process in that there would be no Board hearings. In light of these similarities 

between the Simplified Appeals Process and the new appeals framework, the Board 

would expect the same productivity level as that contemplated in the Simplified Appeals Process included in the FY 2017 budget request. 

The FY 2017 budget projected 180 Board decisions per FTE based on technology, 

legislative change, the fact that the Board’s reasons and bases in its decisions would 

be simplified, and the fact that, with very limited exceptions, the Board would review only the evidence before the AOJ at the time of the rating decision. We continue to believe that the Board would achieve the same level of productivity in the 

non-hearing option lane in the new appeals framework, as the evidentiary record 

before the Board would be limited to the evidence of record at the time of the AOJ 

decision on appeal. Therefore, in FY 2018 we project 108 resolutions and 72 remands per Board FTE, for a total of 180 decisions per Board FTE. We note that 

the projection of 180 Board decisions per FTE in the FY 2017 budget was a projection based on a legal framework that we do not have experience administering. We 

will continually reevaluate Board productivity. 

Estimated productivity in the Board hearing option lane is projected to be less 

than in the non-hearing option lane because Veterans will have the option to submit 

additional evidence during or within 90 days following a Board hearing or, if a hearing is not requested, with the notice of disagreement (NOD) or within 90 days following receipt of the NOD. Therefore, we expect productivity of 130 dispositions per 

FTE in the hearing option lane. We project, in FY 2018, 78 resolutions per FTE and 

52 remands per FTE, for a total of 130 dispositions per FTE. 

B. Do the projections for individual productivity levels at the Veterans Benefits 

Administration reflect any expected decrease in individual productivity as a result 

of the enhanced notice requirements in the draft legislation (revisions to 38 U.S.C. 

5104(b))? If so, please outline how that was factored into the projections. 

41 

Response 1B. The projections for individual productivity levels at VBA do not reflect any expected decrease in individual productivity based on the enhanced notice 

requirements. While the new letters may require more effort to generate, VA expects they will contribute to a lower appeal rate, which would offset the effort to 

create the letter. VA will perform further analysis on the impact of the letters once 

acceptable letter templates have been prototyped and tested with the employees who 

will be responsible for creating the letters. 

C. Do the projections for individual productivity levels take into account any lag 

time for hiring and training new employees and for newly hired employees to become fully productive? If so, please outline how that was factored into the projections. 

Response 1C. While authority for new employee hiring would be contingent on 

subsequent budget cycles, VA has taken into account hiring and training of employees into its projections. Since the proposed legislation would have an 18-month effective date, VA would have the time needed to draft training materials and guidance 

documents as well as hire and train any new employees. 

Regarding productivity, as the Board has a six-month period during which new 

attorneys receive training and develop the necessary skills to effectively produce 

quality decisions in a timely manner, we would expect any new Board FTE production in the first year to be 74 percent of regular production. VA does not expect reduced production from any new VBA employees, as new employees would be placed 

into the disability compensation claim processing teams and seasoned claims processors would be transitioned into new roles in the new framework’s higher-level review and supplemental claim lanes. These seasoned claims processors may experience a slight learning curve productivity drop; however, we would not expect any 

significant decline in productivity and believe any impact would be negligible because of the increased efficiency of the new system. 

D. If the projected levels of increased productivity turn out to be unreachable, 

what steps could VA take to avoid a backlog developing under the new appeals system? 

Response 1D. VA will continue to develop and implement new systems to reduce 

error, optimize automation, and increase productivity of its employees to serve more 

Veterans and their families. The Board has already begun an Appeals Modernization initiative to overhaul its legacy IT system and create new tools to support accurate, timely decisions. The U.S. Digital Services Team is leading the effort and is 

working to replace the Department’s appeals tracking system, the Veterans Appeals 

Control and Locator System (VACOLS), which was created decades ago, with a modern tool that seamlessly integrates with and leverages data from VBA’s Veterans 

Benefits Management System (VBMS). Additionally, VBA has been working to 

streamline the claims process for the past few years, which will continue for original 

claims and the supplemental claim and higher level review lanes under the new 

framework. Finally, as VBA continues to modernize the claims distribution process 

through the National Work Queue, supplemental claims and requests for a higher 

level review at VBA under the new framework will be routed to available capacity 

nationwide to improve overall efficiency and timeliness. 

Question 2. Regarding VA’s proposal to reform the appeals process, the Committee 

has received testimony and other communications from Disabled American Veterans, Veterans of Foreign Wars, The American Legion, AMVETS, Iraq and Afghanistan Veterans of America, Military Order of the Purple Heart, the National Organization of Veterans’ Advocates, and Paralyzed Veterans of America all indicating that 

a critical element of appeals reform is for VA to put forth a comprehensive plan to 

address the large existing inventory of appeals (approximately 450,000). Although 

VA has provided the Committee with cost estimates for various staffing models that 

could be used to address the existing inventory of appeals, the information provided 

does not include a detailed plan for how and when the existing appeals will be resolved. 

A. Please provide the Committee with a detailed plan for addressing the existing 

appeals (including any appeals that would be received before a new appeals process 

becomes effective), including information addressing personnel matters (for example, 

the extent to which VA would use all-hands-on-deck initiatives, overtime, contractors, new temporary employees, new permanent employees, etc.), any logistical challenges involved in handling a large volume of appeals in the near term, any proposed special appeals processing initiatives, any legislative changes that would be 

of assistance in handling legacy appeals in a timely manner, and key goals and 

milestones for processing existing appeals and related remands. 

Response 2A. VA’s current inventory is approximately 460,000 appeals, with approximately 78 percent pending with VBA. Legislative reform will help VA address 

42 

appeals filed from decisions issued on or after the effective date of the law. Moreover, the legislative reform package does not change the mandatory cost requirements and is more efficient to administer compared to the current framework. In 

fact, over time, the new framework will result in cost savings over the current baseline. However, the sizable inventory of appeals stemming from decisions issued prior 

to the effective date of the new law would be completed under legacy procedures. 

VA would require additional resources to meet the timely service expectations of 

both Veterans and Congress in processing these appeals. 

VA is aware that any increase in resources above the FY 2017 baseline will be 

contingent on annual budget appropriations and resource requirements will be validated on a yearly basis through the annual budget process. As such, to demonstrate 

potential outcomes for Veterans awaiting final decisions on their appeals, VA has 

projected five scenarios that highlight possible outcomes depending on the level of 

funding appropriated by Congress. The graphs below visually display each scenario. 

Resources and FTE Outcome 

FY 2017 FY 2018 FY26 Legacy 

Inventory 

FY 2017 Baseline .................................................................................. $348,083 $358,589 214,837 

Total FTE ............................................................................................... 2,417 2,417 

Legacy Inventory ................................................................................... 535,726 529,706 

* The FY 2018 funding level in this model includes a 3 percent inflationary increase 

The first scenario above, titled ‘‘FY 2017 Baseline,’’ assumes only legislative 

change without any new funding beyond FY 2017. Baseline funding is at the same 

level as FY 2016, with the exception of the addition of 242 FTE for the Board in 

the FY 2017 President’s Budget. Under this model at least 214,837 appeals will take 

longer than 9 years to be resolved. Moreover, under this level of funding, some of 

these legacy appeals will take 28 years to be resolved. 

In the rest of the scenarios presented below, VA has assumed funding above the 

FY 2017 baseline to accelerate resolution of the legacy appeals workload. 


524q3VAq2a1.eps 524q3VAq2a2.eps
43 

Resources and FTE Costs Outcome 

FY17 FY18 

FY17-FY21 

Costs Above 

FY17 

Baseline 

(5 year) 

FY17-FY26 

Costs Above 

FY17 

Baseline 

(10 year) 

FY26 Legacy 

Inventory 

Add 50M in FY18 .............................................. $348,083 $397,895 $164,917 $392,382 127,505 

Total FTE ...................................................... 2,417 2,661 

Legacy Inventory ............................................... 535,726 515,717 

The second scenario, titled ‘‘Add $50M in FY 2018,’’ reflects the projected outcome 

if Congress funded VA appeals by an additional $50M above the FY 2017 baseline. 

Under this model, VA projects 127,505 appeals will take longer than 9 years to be 

resolved. 

Resources and FTE Costs Savings Outcome 

FY17 FY18 

FY17-FY21 

Costs Above 

FY17 Baseline 

(5 year) 

FY17-FY26 

Costs Above 

FY17 Baseline 

(10 year) 

FY17-FY26 

Savings Over 

10 Years 

FY26 Legacy 

Inventory 

Add 100M in FY18 .................. $348,083 $448,005 $374,371 $731,203 $(62,123 ) Complete by 

end of FY2026 

Total FTE ............................. 2,417 3,001 

Legacy Inventory ...................... 535,726 492,749 

The third scenario, titled ‘‘Add $100M in FY 2018,’’ reflects the projected outcome 

if Congress funded VA appeals by an additional $100M above the FY 2017 baseline. 

VA projects that under this model, it would be able to eliminate most of the legacy 

inventory by the end of FY 2026. Due to the open record and duty to assist in the 

current appeal process, VA will likely have a small, declining inventory of legacy 

appeals for several years after FY 2026. 


524q3VAq2a3.eps 524q3VAq2a4.eps
44 

Resources and FTE Costs Savings Outcome 

FY17 FY18 

FY17-FY21 

Costs Above 

FY17 Baseline 

(5 year) 

FY17-FY26 

Costs Above 

FY17 Baseline 

(10 year) 

FY17-FY26 

Savings Over 

10 Years 

FY26 Legacy 

Inventory 

Add 150M in FY18 .................. $348,083 $497,890 $572,735 $482,879 $(288,811 ) Complete by 

end of FY2024 

Total FTE ............................. 2,417 3,360 

Legacy Inventory ...................... 535,726 466,245 

The fourth scenario, titled ‘‘Add $150M in FY 2018,’’ reflects the projected outcome if Congress funded VA appeals by an additional $150M above the FY 2017 

baseline. Under this model, VA projects it would be able to eliminate most of the 

legacy appeals inventory by the end of FY 2024. Due to the open record and duty 

to assist in the current appeal process, VA will likely have a small, declining inventory of legacy appeals for several years after FY 2024. 

Resources and FTE Costs Savings Outcome 

FY 2017 FY 2018 FY 2019 

FY17-FY21 

Costs 

Above FY17 

Baseline 

(5 year) 

FY17-FY26 

Costs 

Above FY17 

Baseline 

(10 year) 

FY17-FY26 

Savings Over 

10 Years 

FY26 

Legacy 

Inventory 

Add in FY 2018 & 

FY 2019 ........................ $348,083 $478,824 $590,330 $725,715 $323,307 $(518,938) Complete by 

end of FY22 

Total FTE ...................... 2,417 3,234 3,875 

Legacy Inventory ............... 535,726 474,387 296,676 

In the last scenario, titled ‘‘Add $242M over FY 2018–FY2019,’’ VA assumed a 

budget and hiring authority sufficient to functionally eliminate the legacy appeals 

inventory by FY 2022. VA projects that under this aggressive model, it would be 

able to reduce the inventory of legacy appeals from a high in FY 2018 of almost 

536,000 appeals to approximately 80,000 appeals by the start of FY 2022—an 85- 

percent reduction in 4 years; with legacy inventory essentially eliminated by the end 

of FY 2022. Due to the open record and duty to assist in the current appeal process, 

VA will likely have a small, declining inventory of legacy appeals for several years 

after FY 2022. Under this model VA would need budget authorization for 242 million, receiving 130 million in FY 2018, and 112 million in FY 2019. 

VA is grateful to Congress for the additional FTE in recent years, including an 

additional 107 for the Board in FY 2014 and an additional 300 for VBA, who were 

hired in 2015 to assist with the disability compensation claims rating backlog and 

shifted to work appeals in 2016. The 2017 President’s Budget currently under consideration by Congress includes a request for an additional 242 FTE for the Board. 

VA is also reviewing existing processes to improve the efficiency of the FTE working appeals in the legacy system. VBA’s centralized mail and scanning is now hanVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN

524q3VAq2a5.eps
45 

dling documentation from the Board in order to accelerate the transition of appeals 

to the digital environment. Currently, approximately 90 percent of all appeals are 

paperless. VBA and the Board are also working to resolve pending requests for 

Board hearings. The Board has made more hearing slots available through Video 

Teleconferencing, and VBA is working with VSOs and Veterans to ensure utilization 

of the hearing slots. 

Another element of the plan to improve efficiency of the appeals process and resolve the legacy inventory is to improve the technology supporting appeals processing. VBA has outlined enhancements for VBMS to improve appeals processing. 

As stated above, the U.S. Digital Services Team is leading the effort to replace the 

outdated legacy appeals tracking system (VACOLS) and to further improve the processing of appeals at the Board with additional capabilities such as work queues, 

tools to optimize efficiency in eFolder review and decision writing and automation, 

among others. 

B. To the extent the plan for addressing the existing inventory of appeals includes 

a near-term surge of employees (the New Framework + FTE Surge model submitted 

by VA), please include an explanation of how long it would take for VA to fully prepare for and implement the surge of employees, how long the surge would be expected to last, what level of productivity VA would expect to achieve as a result of 

the surge, and how VA would downsize its labor force once the need for the surge 

of employees has ended. For example, please include information about how long it 

would take to hire the additional employees at the Veterans Benefits Administration 

and the Board of Veterans’ Appeals; how long it would take to train those employees; what additional capacity, if any, the Veterans Benefits Administration and 

Board of Veterans’ Appeals would need in order to train the new employees; how 

much additional office space, if any, VA would require to accommodate the new employees and how long it would take to acquire that space; how long it would take 

to acquire any necessary computers, office supplies, or other necessary equipment 

for the surge of employees; what other logistical challenges VA would face with a 

large influx of employees; and what legal authorities would be used both to hire new 

employees and to downsize the labor force once the need for a surge has ended. 

Response 2B. The question references the New Framework + FTE Surge model 

submitted by VA. As reflected above, there are various modeling outcomes regarding 

addressing the existing inventory of appeals depending on funding levels. The answers below would be generally applicable to any new budgetary appropriations that 

would involve additional FTE. 

VA believes that the proposed 18-month lag between the passage of the appeals 

reform bill and the effective date for implementation is sufficient to execute the 

surge hiring strategy to address the legacy appeals inventory. VBA believes it can 

meet the FTE hiring surge within 6 months of the authority to hire. Training will 

follow VBA’s normal protocol, which includes 3 weeks of centralized training followed by 6 months in trainee status at each Regional Office. VBA will deploy newly 

hired employees to work simpler, rating-related claims. This will allow more experienced employees to work on more complex claims under the new framework. In this 

model VBA has also accounted for resource requirements for training, space, and 

computer workstations. 

The Board believes it can also hire and train additional FTE during the 18-month 

period between enactment of the legislation and its effective date. The Board is in 

the process of refreshing its attorney training curriculum to refocus on preparing 

decisions in a virtual environment and to shift from live training to more recorded 

modules that can be used on demand as needed both for initial training and refreshers. The new framework for appeals processing would be incorporated into this 

training. New judges will also undergo rigorous initial training, which will include 

training addressing the new framework, with follow-up mentoring and continuing 

education. Board administrative staff will also undergo new employee training specific to their business line. 

The challenges faced by the Board would include human resources support, information technology (IT) support, training support, and office space. These challenges 

would be handled by having a strong recruitment plan in place, with a tiger team 

of dedicated personnel to handle the recruitment and on-boarding. The IT needs 

would also be identified in advance with a streamlined plan to have the necessary 

equipment in place in a timely fashion as new hires were on-boarded. The Board 

is already putting plans in place and is working with the Office of Human Resources 

& Administration and the Office of Information & Technology to ensure that it is 

ready for a surge of employees. The training needs would be handled by having a 

strong training plan in place, using lessons learned from the large training in 2013, 

when the Board successfully hired and on-boarded 125 new FTE (including 114 new 

attorneys) during two quarters of FY 2013, and subsequent trainings. Finally, the 

46 

office space requirements would be handled by a combination of repurposing existing space for storing paper claims files, and increasing telework for eligible employees. 

VBA’s historical attrition rate is approximately 7 percent; the Board’s historical 

attrition rate is approximately 8.7 percent. As the legacy appeals inventory is resolved, VBA can divert its legacy appeals workforce to rating-related disability compensation work and/or conducting higher level reviews under the new framework. 

The Board expects that it will be able to primarily rely on attrition alone to meet 

the decrease in staffing requirements following the hiring surge in FY 2018 and 19. 

Question 3. If the proposed legislation on appeals reform is passed, please outline 

the steps VA would need to take in order to fully prepare for and implement the 

new process, including any actions needed regarding logistics, training, information 

technology, and outreach. 

Response. VA has proposed an 18-month delayed effective date for the legislation. 

This delay would provide VA with the time needed to prepare for implementation, 

including the drafting of regulations, updating forms and notice letters, developing 

guidance documents, updating information technology (IT) systems, implementing 

an outreach and communications plan, and hiring/training staff. 

To implement the appeals reform legislation, VA must amend its existing regulations, to include its adjudication and appeal regulations in parts 3, 19, and 20 of 

title 38, Code of Federal Regulations. Due to the sweeping nature of these reforms, 

any regulatory changes will require public notice and comment. Such rulemakings 

can take up to eighteen months to finalize, so drafting will begin immediately upon 

enactment of the legislation. Concurrent with preparing these regulatory changes, 

VA will update its procedural guidance documents, to include VBA’s M21–1 Adjudication Procedures Manual, as well as any letters and forms impacted by the legislation. As implementation draws nearer, VA will develop and implement appropriate training for all employees. VA does not anticipate any difficulty training employees, nor do we foresee a significant impact on current levels of productivity because the new framework would be more efficient to administer. 

Regarding necessary IT upgrades, VA will continue its multi-phase process of enhancing appeals functionality in the paperless environment while simultaneously 

initiating any new development and/or upgrades necessary to implement the new 

framework. 

VA will also use the 18-month period to develop and deploy a robust outreach 

plan to ensure that Veterans and their families, as well as other stakeholders fully 

comprehend the new framework. VA will leverage its existing tools, partnerships, 

social media platforms, and forums, to include MyVA Communities and Town Halls, 

to disseminate information about the upcoming changes and the impact on current 

and future appeals. Engaging with Veterans and stakeholders early and often will 

ensure that any issues may be addressed prior to final implementation. Furthermore, VA will apply best practices and lessons learned from its claims process transformation. 

As discussed in response 2(B), VBA is prepared for budgetary approval for new 

resources, and VBA believes it will be able to hire FTE within 6 months of any authority to hire. Training would follow normal protocol, which includes 3 weeks of 

centralized training followed by 6 months in trainee status at each Regional Office. 

VBA would deploy newly hired employees to work simpler, rating-related claims, allowing for existing, experienced employees to work on more complex work under the 

new framework. In order to hire/train Board staff, the Board will have a strong recruitment plan in place, with a tiger team of dedicated personnel to handle the recruitment and on-boarding. The IT needs for these new employees would also be 

identified in advance with a streamlined plan to have the necessary equipment in 

place in a timely fashion as new hires are on-boarded. The training needs would 

be handled by having a strong training plan in place, using lessons learned from 

the large training in 2013, when the Board successfully hired and on-boarded 125 

new FTE (including 114 new attorneys) during two quarters of FY 2013, and subsequent trainings. Finally, the office space requirements would be handled by a combination of repurposing existing space for storing paper claims files, and increasing 

telework for eligible employees. 

Question 4. The agenda for the hearing included a legislative proposal that was 

in the fiscal year 2017 budget request for VA, which would modify the evidentiary 

threshold needed to trigger VA’s obligation to provide a compensation and pension 

examination for a veteran seeking disability compensation. Generally, it would require objective evidence that the veteran experienced an event, injury, or disease 

during military service, in addition to existing evidentiary requirements. 

47 

A. Please provide any relevant data on how many compensation and pension examinations VA provides each year; how many veterans receiving those examinations 

have their disability claims granted; and how many veterans receiving those examinations have their claims denied. 

Response 4A. In fiscal year (FY) 2015, VA conducted compensation and pension 

examinations for 284,207 original compensation claims containing 1,706,550 separate issues. VA is providing this information at the issue level rather than the claim 

level because a claim may contain multiple issues, each with their own reason for 

denial. Based on the results of these examinations, VA granted service-connection 

for 877,906 (51.4 percent) issues and denied service-connection for 828,644 (48.6 percent) issues. 

B. Please provide any relevant data on how many examinations per year would 

not be conducted if this change were enacted. 

Response 4B. For FY 2015, VA estimated that 113,080 original claims received 

a VA examination for an issue that was subsequently denied because the claimed 

condition was not incurred in nor caused by military service. Approximately 84,812 

exams (75 percent) were considered unnecessary as they do not result in a grant 

of service-connection and may be avoided each year if this legislation was enacted. 

C. Please provide any relevant data on how frequently disability claims are denied 

for lack of in-service incurrence after VA has provided an examination. 

Response 4C. The chart below shows the number of claimed issues where examinations were conducted but the issue was denied during FY 2015. As shown below, 

the rate at which VA denies service-connection because the condition was not incurred in nor caused by service (NINC) increases significantly for claims filed a 

number of years after separation from service. 

Proximity of Claim to Veteran’s Separation from Military Service 

Number of 

Denied 

Issues 

Number of 

Denied NINC 

Issues 

% of 

Denials 

that are 

NINC 

% of 

Denials 

Based on ‘‘No 

Diagnosis’’ 

<1 Year .................................................................................................. 322,257 127,995 40% 48% 

1–10 Years ............................................................................................. 152,328 87,809 58% 28% 

10–20 Years ........................................................................................... 60,801 37,905 62% 22% 

20–50 Years ........................................................................................... 248,252 156,305 63% 17% 

Over 50 Years ........................................................................................ 29,571 20,398 69% 17% 

D. Please provide any relevant information regarding the nature of the claims 

that are being denied for lack of in-service incurrence after an examination has been 

provided, including the types of injuries or diseases most frequently involved and 

the length of time that has elapsed since leaving the military. 

Response 4D. The chart below shows the top five disabilities for FY 2015 that 

were denied service-connection, after a VA examination was conducted, because the 

claimed condition was NINC. The disabilities are categorized by the number of 

years after discharge from military service and reflect conditions that were claimed 

as part of original claims for service connection. 

Proximity of Claim to Veteran’s Separation 

from Military Service 

Number of 

Denied NINC 

Issues 

% of Denials 

that are NINC Top 5 Disabilities Denied based on NINC 

<1 Year ........................................................ 127,995 40% 1. Low Back 

2. Knee, Loss of Motion (LOM) 

3. Ankle, LOM 

4. Shoulder, LOM 

5. Tinnitus 

1–10 Years ................................................... 87,809 58% 1. Low Back 

2. Knee, LOM 

3. Tinnitus 

4. Shoulder, LOM 

5. Knee, Instability 

48 

Proximity of Claim to Veteran’s Separation 

from Military Service 

Number of 

Denied NINC 

Issues 

% of Denials 

that are NINC Top 5 Disabilities Denied based on NINC 

10–20 Years ................................................. 37,905 62% 1. Low Back 

2. Knee, LOM 

3. Tinnitus 

4. Knee, Instability 

5. Shoulder, LOM 

20–50 Years ................................................. 156,305 63% 1. Hearing Loss 

2. Tinnitus 

3. Low Back 

4. Knee, LOM 

5. Hypertension 

Over 50 Years .............................................. 20,398 69% 1. Hearing Loss 

2. Tinnitus 

3. Low Back 

4. Knee, LOM 

5. Heart 

E. Please explain what impact this change would have on veterans seeking disability compensation based on toxic exposures during service. 

Response 4E. This legislative proposal would have little to no impact on Veterans 

seeking disability compensation based on toxic exposures during service. The purpose of this proposal is to reduce the number of examinations VA must provide 

when there is no objective evidence of an in-service injury, event, or disease. For 

Veterans seeking disability compensation based on toxic exposure during service, 

generally, VA does not order a disability compensation examination without evidence of in-service toxic exposure. In other words, when an examination is ordered 

for such claimants, the only remaining issue for consideration is typically whether 

there is a medical nexus between a current disease and the in-service exposure. 

Furthermore, in cases where VA has established a presumption based on exposure 

to certain toxins (i.e., herbicide agents, ionizing radiation, mustard gas), a disability 

compensation examination is often not necessary to establish service-connection because VA has already determined there is sufficient scientific evidence to establish 

a medical nexus between a particular disease and toxic exposure during service. 

RESPONSE TO POSTHEARING QUESTIONS SUBMITTED BY HON. MAZIE K. HIRONO TO

HON. SLOAN GIBSON, DEPUTY SECRETARY, U.S. DEPARTMENT OF VETERANS AFFAIRS

FEMALE VETERANS SUICIDE

Question 5. A. Deputy Secretary Gibson, I know that the VA, and all Members 

of the Committee, are extremely concerned with the rates that our veterans, particularly female veterans, are committing suicide which is why I support Sen. Boxer’s bill S. 2487 the Female Veteran Suicide Prevention Act. VA figures note for 

women ages 18 to 29, veterans kill themselves at nearly 12 times the rate of nonveterans. To what extent has the VA taken the actions as directed in S. 2487 to 

identify: (1) VA mental health care and suicide prevention programs that are most 

effective for women veterans, and (2) such programs with the highest satisfaction 

rates among women veterans? 

Response 5A. VA shares your concern for women Veterans and is leading national 

efforts to understand suicide risk factors, develop evidence-based intervention strategies, and proactively identify and care for Veterans—men and women—who are in 

crisis or at risk for suicide. We note that S. 2487 was enacted as Public Law 114– 

188 in June 2016. Accordingly, VA will include in its annual evaluation of VA mental health care and suicide prevention programs under 38 U.S.C. § 1709B, metrics 

applicable to specifically to women, and identify the programs that are most effective for women Veterans and such programs with the highest satisfaction rates 

among women Veterans. 

49 

VA MENTAL HEALTH CARE AND SUICIDE PREVENTION PROGRAMS FOR WOMEN VETERANS

More than 430,000 women Veterans are currently utilizing the VA health care 

system. Of these, over 42% use VHA mental health services. For women Veterans 

in need of mental health care, VA provides a full continuum of mental health services to women Veterans, including general outpatient, specialty, inpatient and residential rehabilitation treatment options. Some specialty care programs that target 

problems such as PTSD, substance use, depression, and homelessness include 

women-only services (e.g., women-only groups). Many facilities provide this care 

through specialized women-only outpatient treatment teams. With regard to specialty outpatient treatment options for Post Traumatic Stress Disorder (PTSD), evidence-based therapies for PTSD, including prolonged exposure and cognitive processing therapy, have been shown to decrease suicidal ideation. These treatments are 

available nationally at every VA medical center. 

For women Veterans in need of more intense treatment, VA has residential rehabilitation and inpatient programs that provide treatment to women only, or have 

separate tracks for men and women. These residential rehabilitation and inpatient 

programs are considered regional and/or national resources, not just a resource for 

the local VA facility. Mixed-gender options are also available. 

VA has enacted universal screening programs for some of the most common mental health conditions and related experiences, including those faced by women and 

associated with increased risk for suicide, such as depression, PTSD, alcohol use, 

and military sexual trauma (MST). These screening programs provide an opportunity to identify those individuals in need of mental health care and refer them 

to appropriate mental health services. Screening rates for depression, PTSD, and alcohol use are very high (96%–99%), exceed private sector rates, and do not significantly differ by gender. 

VA has numerous suicide prevention resources available, including a 24-hour per 

day crisis hotline (1–800–273–8255) and Veterans Crisis Online Chat (http:// 

www.veteranscrisisline.net/ChatTermsOfService.aspx). Veterans and their loved 

ones also may access resources through VA’s comprehensive suicide prevention 

website (http://www.mentalhealth.va.gov/suicide—prevention/). At least one full-time 

Suicide Prevention Coordinator (typically a nurse or social worker) is assigned to 

each VA medical center and large community-based outpatient clinic. This individual is responsible for tracking high-risk Veterans (all attempters, and patients 

with serious ideation or others clinically determined to be at high risk for suicide) 

and tracking appointments and coordinating enhanced care between Veterans and 

providers, among other duties. 

Finally, VHA has strong clinical training initiatives in place to ensure that mental 

health providers have the knowledge and skills to meet the unique treatment needs 

of the growing population of women Veterans accessing VA mental health services. 

These include didactic teleconferences, expert case consultation and a web-based 

training curriculum on women’s mental health needs across the reproductive lifespan (e.g., psychiatric disorders during and after pregnancy). In addition, the Women’s Mental Health Section of VA Mental Health Services recently held a national 

Women’s Mental Health Mini-Residency. This 3-day intensive training event was 

designed to provide VA mental health providers with the clinical knowledge and 

skills to provide gender-sensitive care to women Veterans. The 171 participants represented nearly every VA medical center nationally. These women’s mental health 

providers will serve as local women’s mental health champions. Each has developed 

an Action Plan to improve women’s mental health delivery at their local facility. 

WOMEN VETERANS’ SATISFACTION WITH VA MENTAL HEALTH CARE AND SUICIDE

PREVENTION PROGRAMS

Research findings indicate that women Veterans with mental health problems are 

very satisfied with VA health care. For example, one recent survey study of over 

55,000 male and female Veterans diagnosed with a mental health condition showed 

that nearly all (91%) rated their health care provider positively (Burnett-Zeigler et 

al., 2011). There were no between-gender differences in ratings. Nearly all Veterans 

surveyed indicated their health care provider listened to them (96%), inspired confidence and trust (95.4%), and that they participated in their own healthcare decisions (91.9%). 

Data from a national sample of 10,000 Veterans who received VA mental health 

services in fiscal year 2015 indicated that both male and female Veterans are very 

satisfied with their VA mental health care, and there were generally few differences 

between men and women on individual satisfaction questions. Areas of particularly 

high satisfaction, where national averages were at least 4 on a scale of 1 to 5, were 

Veterans reporting that their mental health care was helpful; that their clinicians 

50 

were accessible, engaged and responsive to their needs; that they had access to 

treatment when and how much they needed and wanted treatment; and that they 

were treated with respect and kindness. Composite measures reflecting access to 

care and patient-centered care also indicated high satisfaction, with women Veterans reporting slightly higher satisfaction with the patient centeredness of mental 

health care compared to male Veterans. 

Finally, although women Veterans satisfaction with suicide prevention programs 

has not yet been directly assessed, available research suggests that these programs 

are making an important difference. For instance, by partnering with U.S. states 

to gather information about Veteran suicides from death certificates, VA researchers 

recently calculated, for the first time, preliminary estimates of suicide rates in the 

overall U.S. Veteran population, including those who do and do not use VA health 

services. Results showed significantly lower rates of suicide among women Veterans 

who use VA health services as compared to those who do not use VA health care. 

This finding suggests that VA’s suicide prevention efforts are having a positive impact. In summer 2016, VA will release a Suicide Data Report that provides comprehensive information regarding suicide mortality among all Veterans, including 

women Veterans, for the years 2001–2014. This report will provide a deeper understanding of the problem of suicide among women Veterans and inform initiatives 

for preventing it. 

References 

Hoffmire, C.A., Kemp, J.E., Bossarte, R.M. (2015). Changes in suicide mortality for 

veterans and nonveterans by gender and history of VHA service use, 2000– 

2010. Psychiatric Services 66(9), 959–965. 

B. VA estimates S. 2487 would cost $2.2 million in fiscal year (FY) 2017 and $6.6 

million over 3 years. Could you break down that cost estimate? Are additional staff 

necessary? 

Response 5B. In order to ensure that the amount of data on women Veterans utilizing mental health services is sufficient for a robust analysis that would support 

the requirements of S. 2487 (enacted as Public Law 114–188), a significant over 

sampling of women Veterans is required. The costs required to accomplish this oversample include: the costs within VA for managing a contract and collaborating with 

the outside independent evaluator on the provision and interpretation of womenspecific data; incremental costs in order to increase the sample size; and the incremental costs for conducting the additional analyses required. 

Specifically, acquiring data for a subsample of women Veterans that would be sufficient to allow parallel analyses and comparisons with the data on male Veterans 

will require doubling the overall sample size for the Veterans Outcomes Assessment 

(VOA), at a cost of $1.8 million per year. The VOA data will be the primary source 

of outcomes data that the external contractor will utilize to evaluate VA mental 

health services. Additionally, internal costs to VA include 1.0 FTE Program Analyst 

and a 0.25 FTE Program Manager to manage the larger contract, oversee and conduct extra data pulls and analyses for the external independent evaluator, and serve 

as a liaison to the external evaluator on women-specific data issues. Finally, VA’s 

estimate includes the marginal costs for the additional analyses and reporting required of the external evaluator. 

Chairman ISAKSON. Let me welcome our second panel. We appreciate your patience in waiting through the first panel, and we will 

move straight to your testimony and then questions. We are grateful you came to comment on the legislation before us. 

We have Mr. Carlos Fuentes, Senior Legislative Advisor, Veterans of Foreign Wars; Lou Celli—welcome back, Lou—the National Director of Veterans Affairs and Rehabilitation, The American Legion; Adrian Atizado, Deputy National Legislative Director 

of Disabled American Veterans; Carl Blake, Associate Executive 

Director of Government Relations, Paralyzed Veterans of America; 

Diane Boyd Rauber, National Organization of Veterans’ Advocates; 

and Jerome Ensminger, U.S. Marine Corps, Retired, Master 

Sergeant. 

We welcome all of you. We will begin with Mr. Fuentes. 

51 

STATEMENT OF CARLOS FUENTES, SENIOR LEGISLATIVE ADVISOR, NATIONAL LEGISLATIVE SERVICE, VETERANS OF 

FOREIGN WARS OF THE UNITED STATES 

Mr. FUENTES. Chairman Isakson and Members of the Committee, 

on behalf of the men and women of the VFW and our Auxiliaries, 

I would like to thank you for the opportunity to present our views 

on legislation pending before the Committee. I would limit my remarks to bills for which we have concerns we urge the Committee 

to address. 

The VFW supports most aspects of the Care Veterans Deserve 

Act of 2016, but we have serious concerns with the bill’s significant 

expansion of the Choice program. The VFW agrees that the VA 

health care system must leverage its community care partners in 

order to fulfill its obligation to our Nation’s veterans. However, we 

firmly believe that community care must complement, not compete, 

with the high-quality veteran-centric and comprehensive care veterans receive from their VA health care system. 

For that and other reasons, the VFW believes Choice program 

eligibility must be based on a veteran’s inability to receive a VA 

appointment within a clinically indicated date or within the distance a veteran and his or her doctor agree is clinically necessary 

and reasonable. 

The VFW strongly supports Section 4, which would authorize 

certain doctors to practice telemedicine across State lines. This provision would considerably expand access to care for veterans who 

do not live in the same State as their VA health care facility and 

veterans who require home-based health care services. 

The VFW supports the intent of the Janey Ensminger Act of 

2016, which would require periodic literature reviews to determine 

whether health care conditions prevalent among veterans and family members exposed to contaminated water at Camp Lejeune are 

associated with such toxic exposures. To ensure literature reviews 

are aligned with the realities of medical research, we urge the 

Committee to require that the Agency of Toxic Substances and Disease Registry use the Institute of Medicine’s categories of association instead of attempting to meet the unattainable threshold of 

causation. 

The VFW also supports the intent of the Helping Veterans Exposed to Burn Pits Act. However, the VFW recommends Congress 

expand VA’s risk centers rather than establish a new Center of Excellence. I am glad to see that the VA in its written testimony indicated that it would expand its risk centers rather than establish a 

new center. 

With regards to appeals reform, the VFW agrees VA’s current 

appeals process takes too long. However, to say that the appeals 

process is broken is an overstatement. While the process takes too 

long, nearly one-third of all appellants are granted something they 

did not receive from a VA regional office. The process clearly works 

for them. 

At the request of Secretary McDonald, the VFW has actively participated in a series of meetings in an attempt to identify opportunities to improve the current appeals process, but participation 

does not imply consent or approval of any process. 

52 

The proposed outline in the legislation under consideration 

today, even if approved with the recommendations detailed in my 

written testimony, is only one-third of the solution. There are two 

elements missing in this proposal: a comprehensive plan by VA to 

effectively address the current backlog of more than 450,000 pending appeals, and properly staff the new process; and an allocation 

of sufficient resources by Congress to allow VA to execute this plan 

effectively. The VFW will not endorse any changes to the current 

appeals process until all three elements are in place. 

The VFW opposes the discussion draft to modify requirements 

under which VA is required to provide compensation and pension 

examinations to veterans seeking disability benefits which would 

relieve VA of its obligation to order medical exams for certain veterans. The VFW firmly believes that raising the standard for VA’s 

duty to assist would have a negative impact on veterans. Under 

this proposal, veterans who are unable to locate their service 

records or have a disability that cannot be observed by others, such 

as fatigue, pain, or tinnitus, may be denied the compensation and 

pension examinations needed to prove their injuries are a result of 

their military service. 

Mr. Chairman, this concludes my testimony. I am happy to answer any questions you or the Members of this Committee may 

have. 

[The prepared statement of Mr. Fuentes follows:] 

PREPARED STATEMENT OF CARLOS FUENTES, SENIOR LEGISLATIVE ASSOCIATE, NATIONAL LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED

STATES

Chairman Isakson, Ranking Member Blumenthal and Members of the Committee, 

On behalf of the men and women of the Veterans of Foreign Wars of the United 

States (VFW) and our Auxiliaries, I would like to thank you for the opportunity to 

testify on today’s pending legislation. 

S. 2896, CARE VETERANS DESERVE ACT OF 2016

This legislation would expand the Veterans Choice Program, authorize independent reviews of Department of Veterans Affairs (VA) medical facilities and expand access to VA health care. The VFW supports sections 3, 4, 5 and 6. The VFW 

has concerns with section 2. 

While the Veterans Choice Program has made significant progress since it was 

implemented in November 2014, it has yet to achieve what Congress envisioned 

when it passed the Veterans Access, Choice, and Accountability Act of 2014. The 

purpose for this landmark program was to address the national access crisis that 

has plagued the VA health care system, where veterans wait too long or travel too 

far for the care they need. The VFW has made a concerted effort to ensure the program works as intended by evaluating what aspects of the program are working and 

identifying common sense solutions to aspects that are not working as intended. We 

have done this because we agree that VA must leverage its community care partners in order to fulfil its obligation to our Nation’s veterans. However, we firmly 

believe that community care must complement, not supplant or compete with the 

high quality, comprehensive and veteran-centric care veterans receive from their 

health care system. 

Section 1 would make any veteran enrolled in VA health care eligible for the Veterans Choice Program. The VFW is seriously concerned that such a significant expansion of eligibility would result in veterans receiving disparate and uncoordinated 

care. Medical research has determined that integrated and managed health care 

systems provide better health care outcomes than fee for service systems. That is 

why the majority of high performing health care systems, including VA, have implemented the patient-centered medical home model of delivering health care, which 

ensures patients receive the care they need when they need it. 

53 

Additionally, the VFW has continued to receive complaints from veterans who 

face delays receiving care through the Veterans Choice Program and continue to receive erroneous bills for care that VA is required to provide. The VFW believes the 

current program must be fixed before considering whether to dramatically expand 

eligibility. The VFW urges the Committee to amend this legislation by ensuring veterans who are unable to receive a VA appointment by a clinically indicated date, 

or within a distance an enrolled veteran and such veteran’s health care provider 

agree is reasonable, are offered community care options. 

The VFW supports Section 3, which would require VA to provide veterans access 

to private sector urgent care clinics across the country. Urgent care is designed to 

meet the gap between emergency room care and ambulatory care. Urgent care has 

also been proven to reduce reliance on more costly emergency room care for nonlife threatening care and alleviate demand on primary care providers. The VFW is 

also glad to see this section would waive copayment requirements for veterans who 

seek care through community urgent care clinics. This would ensure veterans are 

not financially impacted for receiving the urgent care they need. However, the VFW 

urges the Committee to ensure VA has the resources and authority it needs to expand urgent care capacity at VA medical facilities. 

The VFW strongly supports section 4, which would authorize certain providers to 

practice telemedicine across state lines. This provision would go a long way toward 

helping veterans who do not live in the same state as the facility in which they are 

enrolled and for veterans who require home-based health care services. 

With geographic distance remaining a significant barrier to care for veterans, the 

use of telemedicine technology has emerged as a highly effective method of providing veterans timely and convenient care. Current law, however, restricts VA 

health professionals from practicing telemedicine across state lines unless both the 

provider and the veteran are located in federally owned facilities. Consequently, veterans are required to travel significant distances to Federal facilities just to access 

telehealth services. By allowing VA health care professionals to practice telemedicine across state borders, a veteran’s physical location would no longer be a limiting 

factor in his or her ability to receive telehealth services. 

Section 5 would extend operating hours for VA pharmacies and authorize VA to 

contract health care providers, including locum tenens to operate clinics on nights 

and weekends. The VFW fully supports extending operating hours for VA medical 

facilities. Veterans have continuously asked for VA medical facilities to increase operating hours. Doing so would ensure veterans who work during the day are not 

required to forgo wages to receive the health care they need. However, the VFW 

urges the Committee to amend this legislation to enable VA to use its health care 

providers during extended hours as well by removing the 80-hour biweekly restriction on VA employees. This would ensure veterans who receive care during extended 

hours can continue to receive their care from the VA medical professionals they 

know and trust. 

S. 2888, JANEY ENSMINGER ACT OF 2016

This legislation would require the Agency for Toxic Substances and Disease Registry (ATSDR) to conduct periodic literature reviews of the existing research regarding the relationship between exposure to toxic water at Camp Lejeune and adverse 

health conditions. The VFW supports the intent of this legislation, but has a serious 

concern with the threshold it sets for medical research, which we hope the Committee will address before advancing this legislation. 

The approximately 650,000 veterans and family members who served on Camp 

Lejeune between 1953 and 1987 deserve to know if their health care conditions are 

related to water they drank that was contaminated with trichloroethylene, tetrachloroethylene, vinyl chloride, and other toxins. That is why the VFW fully supports 

periodic literature reviews of the existing body of research on the relationship between contaminated water at Camp Lejeune and the health conditions prevalent 

among veterans and family members exposed to such toxic substances. 

However, this legislation would require the ATSDR to evaluate whether a health 

condition is caused by exposure to contaminated Camp Lejeune water, which is an 

unreasonably high bar for determining a relationship between adverse health conditions and toxic exposure. This legislation would require the ATSDR to categorize related health care conditions into three categories: sufficient with reasonable confidence that the exposure is a cause of the illness or condition; modest supporting 

causation; or no more than limited supporting causation. This would mean that the 

majority of the health conditions the ATSDR considers to be associated with exposure to trichloroethylene, tetrachloroethylene, vinyl chloride in drinking water 

would fail to meet this threshold. 

54 

Research regarding toxic exposures has traditionally used the Institute of Medicine’s (IOM) six categories of associations: sufficient evidence of a causal relationship; sufficient evidence of an association; limited/suggestive evidence of an association; insufficient evidence to determine whether an association exists; inadequate/ 

insufficient evidence; and limited/suggestive evidence of no association. These six 

categories are aligned with the nature of epidemiological research and can be used 

to guide future research. The VFW strongly urges the Committee to reduce the 

threshold from causation to IOM’s six categories of association. 

S. 2883, APPROPRIATE CARE FOR DISABLED VETERANS ACT OF 2016

The VFW supports this legislation, which would reinstate the requirement for VA 

to provide an annual report to Congress that details its capacity in selected specialized health care services. 

This capacity report would provide information on utilization rates, staffing, and 

facility bed censuses needed to ensure more accountability within VA and would 

help ensure VA is a good steward to finite taxpayer resources. The VFW believes 

this report would improve staffing levels at local VA medical facilities and overall 

access to VA’s specialized systems of care. 

S. 2679, HELPING VETERANS EXPOSED TO BURN PITS ACT

This legislation would create a center of excellence for veterans exposed to burn 

pits and other toxic substances. The VFW supports the intent of this legislation and 

has recommendations to improve it. 

The use of open air burn pits in combat zones has caused invisible, but grave 

health complications for many servicemembers, past and present. Particulate matter, polycyclic aromatic hydrocarbons, volatile organic compounds and dioxins—the 

destructive compound found in Agent Orange—and other harmful materials are all 

present in burn pits, creating clouds of hazardous chemical compounds that are unavoidable to those in close proximity. 

Unfortunately, the impact of exposure to such toxic substances on our Iraq and 

Afghanistan veterans is still not widely known or understood. What is clear, however, is that veterans exposed to burn pits continue to report debilitating pulmonary 

conditions which significantly affect their quality of life. That is why the VFW supports continued research on the impact of exposure to such burn pits on the health 

of Iraq and Afghanistan veterans. Furthermore, VA must ensure all its health care 

providers are aware of the symptoms experienced by exposed veterans and ensure 

these veterans receive appropriate medical treatments. 

However, the VFW believes it would be more beneficial for veterans if the Committee were to expand VA’s War Related Illness and Injury Study Centers (WRIISC) 

rather than establish a new center of excellence. The WRIISCs have been instrumental in conducting research on the health effects associated with exposure to 

burn pits, developing educational material for VA and community care providers, 

providing comprehensive exams for exposed veterans and providing high quality 

treatment specifically tailored to their needs. The VFW urges the Committee to increase funding for the WRIISCs and require VA to establish more centers throughout the country. 

S. 2520, NEWBORN CARE IMPROVEMENT ACT

The VFW supports this legislation, which would expand VA’s authority to provide 

health care to a newborn child, whose delivery is furnished by VA, from seven to 

14 days post-birth. 

According to the Centers for Disease Control and Prevention, newborn screenings 

are vital to diagnosing and preventing certain health conditions that can affect a 

child’s livelihood and long-term health. The VFW understands the importance of 

high quality newborn health care and its long term impact on the lives of veterans 

and their families. VA must ensure newborn children receive the proper post-natal 

health care they need. 

S. 2487, FEMALE VETERAN SUICIDE PREVENTION ACT

The VFW supports this legislation to improve VA mental health care and suicide 

prevention programs offered to women veterans. 

As the population of female veterans continues to increase, it is important for VA 

and Congress to expand the availability of women-specific care at VA medical facilities. In a survey of 1,922 women veterans conducted by the VFW, 40 percent of respondents said they are either currently using mental health care services or they 

55 

1 VFW testimony before the Veterans Affairs Subcommittee on Disability Assistance and Memorial Affairs, January 22, 2015, http://www.vfw.org/VFW-in-DC/Congressional-Testimony/ 

Veterans%E2%80%99-Dilemma---Navigating-the-Appeals-System-for-Veterans-Claims/ 

have in the past. This indicates that female veterans are high users of VA mental 

health care services. 

With medical research consistently pointing to gender differences in effective 

treatment of mental health and prevention of suicide, it is vital for VA to ensure 

it provides the high quality and gender-specific care our female veterans deserve. 

Given the increase in the number of suicides across the country, the VFW strongly 

believes this legislation would help prevent female veteran suicide. 

S. 2049, A BILL TO ESTABLISH IN THE DEPARTMENT OF VETERANS AFFAIRS A CONTINUING MEDICAL EDUCATION PROGRAM FOR NON-DEPARTMENT MEDICAL PROFESSIONALS WHO TREAT VETERANS AND FAMILY MEMBERS OF VETERANS TO INCREASE

KNOWLEDGE AND RECOGNITION OF MEDICAL CONDITIONS COMMON TO VETERANS AND

FAMILY MEMBERS OF VETERANS. 

The VFW supports this legislation, which would ensure community care providers 

who care for veterans and their families understand how to provide veteran-centric 

care. As the largest integrated health care system in the country and a worldwide 

leader in medical research, VA plays a significant role in training health care professionals. In fact, more than two thirds of all doctors in the country have received 

training in the VA health care system. This bill would rightfully ensure VA is able 

to train our current and future health care workforce. 

Discussion draft to reform the rights and processes relating to appeals of decisions 

regarding claims for benefits under the laws administered by the Secretary of Veterans Affairs. 

On January 22, 2015, the VFW testified before the Subcommittee on Disability 

Assistance and Memorial Affairs on the subject of the ever-growing appeals backlog 1. We explored at length and in detail the reasons why the appeals backlog is 

the size it is today. We discussed the decades-long failure to request and receive appropriate levels of full time equivalent to deal with appeals. We pointed to deliberate choices made to ignore the growing problem by the Veterans Benefit Administration (VBA) managers at the local level as well as leaders in the Department of 

Veterans Affairs (VA) Central Office. Finally, we highlighted the fact that VBA leaders, with full knowledge of the consequences of their choices, decided to process disability claims, not for days, weeks or months, but for years, allowing appeals to 

wait. 

Today, there are more than 450,000 appeals awaiting the years-long process to 

a final decision by the Board of Veterans’ Appeals (BVA). Much of this backlog is 

due to the fact that eliminating the disability claims backlog was the focus of both 

VA and Congress. By focusing on disability claims, VA stopped relatively simple appeals tasks. If VBA directed some resources to the Notice of Disagreement (NOD) 

certification process, nearly half of all appeals would be removed. How? History 

shows that once an NOD is filed, only half of all veterans continue their appeals 

after they receive their Statement of the Case (SOC). 

Now VA, feeling the pressure of another growing backlog, has begun describing 

the current appeals process as too complicated and confusing to veterans in a bid 

to get Congress to create a new process it describes with the adjectives ‘‘simple’’ and 

‘‘fast.’’ What is being overlooked is that, despite the fact that the current appeals 

process is long, it works in providing veterans relief. Under the current system, 

BVA granted benefits to veterans in 29.2 percent of the cases it finally decided. 

With such a high appeals grant rate, the VFW insists any reforms to the process 

must protect the rights veterans enjoy in the current appeals process. Simple and 

fast is not better for veterans if it means veterans lose rights and VA rushes to deny 

appeals. 

Let us be clear, we are not advocates of the status quo. We are not the old guard 

standing in the way of improvements to a process that does not serve veterans in 

a timely manner. However, we are advocates for veterans, and we will not support 

any change simply for the sake of change, nor changes that make the process easier 

for VA at the expense of veterans. 

In short, we will not support a new appeals process which reduces the rights and 

protections found in existing law and regulations. 

At the request of Secretary McDonald, the VFW has actively participated in a series of meetings with other Veteran Service Organization (VSO) representatives and 

officials of VA in an attempt to identify opportunities for improvement to the current appeals process. However, participation does not imply consent or approval of 

56 

2 Under VA’s proposal, the Decision Review Officer (DRO) position is eliminated. In its place, 

VA proposes to designate VBA employees to conduct Difference of Opinion reviews as an adjunct 

duty. The VFW opposes eliminating the highly skilled and experienced cadre of DRO’s. It is our 

belief that the elimination of DRO’s will result in a diminution of grants using the Difference 

of Opinion review authority. 3http://www.thewire.com/global/2012/01/us-cant-fight-two-wars-same-time-anymore/46892/ 

the any new process. We have worked with others to craft an alternative process 

which might provide speedier decisions without reducing rights and protections currently enjoyed by veterans. 

The proposal outlined in the legislation under consideration today is, even if approved with the amendments we suggest, only one third of the solution. There are 

two elements missing from this proposal: 

• A comprehensive plan by VA to competently and efficiently address the current 

backlog of pending appeals; and, • An allocation of sufficient resources by Congress to allow VA to execute its plan. 

The VFW will not endorse any change in the current appeals process until all 

three elements are in place. 

CONCERN WITH THE PROPOSAL

While the VA’s proposal is the combined work of a dozen VSO’s and VA spanning 

hundreds of man hours of labor, much of it simply shifts work from an appeals lane, 

leaving it in a new center lane, labeling it a claim and not an appeal. 

The proposal envisions several changes to current claims and appeals processing. 

Under the current claims process, a veteran submits a claim to a VA regional office. 

The claim goes through a stage of development and preparation for a decision. VA 

eventually decides the claim and notifies the claimant. 

Under the current process, the claimant has the following options: 

• Do nothing • Submit new evidence within a year of the decision and ask for reconsideration • Appeal 

Under this proposal, the claimant has the following choices: 

• Do nothing • Submit new evidence (or new and relevant evidence) and receive a new decision • Ask for a Difference of Opinion review and receive a new decision • Appeal 

As you can see, the proposed change to the appeals process shifts all of the regional office appeals processing, including the Decision Review Office (DRO) review, 

out of the current appeals lane and simply leaves it as another option available at 

the regional office,2 never calling it an appeal. 

All appeals functions currently within the purview of the regional office are taken 

out of the appeals process and are renamed. With only a few exceptions, this process 

is not fundamentally different from the current process. The only possible advantage 

to the claimant is that these issues no longer linger in the shadows of the appeals 

process and must be worked as a claim by VBA. 

Once this fundamental fact is recognized, it is easier to see what the new process 

is and what it might do for claims and appeals processing. 

STAFFING

The other fundamental fact which must be acknowledged is that despite substantial increases in VA staffing over the past decade, VA remains unable to adequately 

process all its work. 

Allow us to explain by way of an illustration: 

We are all familiar with the state of the Armed Forces. During the Cold War, it 

was a basic tenant of force structure that our military was large enough to deal with 

two major enemies at the same time. After the Cold War ended, Congress began 

reducing the size of the Armed Forces. In 2012, then Defense Secretary Leon Panetta acknowledged that the United States could no longer fight two sustained 

ground wars simultaneously.3 If Congress wanted the Armed Forces to have the 

ability to fight two ground wars at the same time it would have to approve additional personnel and equipment to do so. 

So too it is with VA. VA has received funding to perform only some of the functions assigned to it. If Congress expects VA to fulfill all of its tasks in a timely manner, it must provide the personnel to do so. Without appropriate levels of staffing, 

VA will continue to fail and veterans will continue to wait for decisions on their 

claims. 

57 

Today, VA has sufficient personnel to process claims to completion in a reasonable 

time. It has sufficient staff to process appeals expeditiously. However, it does not 

have sufficient staff to do both functions simultaneously. 

The resolution of this backlog requires Congress to adequately staff both VBA and 

BVA to process the work it has before it. Unfortunately, without a comprehensive 

plan from VA, Congress can only guess at the number of personnel required to 

maintain disability claims processing at current levels while processing and resolving the current appeals backlog. 

VA must develop a comprehensive plan for maintaining its current claims workload while attacking the appeals backlog. This plan must include recommendations 

to Congress on what legislative changes are required and how many additional personnel are needed to eliminate the current appeals backlog in a reasonable period 

of time. 

EXAMINING VA’S PROPOSAL

Different lanes 

The proposed change to the claims and appeals process creates what VA refers 

to as three lanes: 

1. Center (claims) lane (The starting point for all claims) 

Under this lane all claims are processed much as they are today. A claimant 

submits a claim. VA develops the claim to completion and refers it for decision. 

VBA makes a decision and notifies the claimant. 

2. Difference of Opinion review lane 

Once a decision is made, a claimant may elect to receive a higher level review 

from VBA. Under VA’s proposal, this is not done by a Decision Review Officer 

but by someone who is at least one grade higher than the previous decisionmaker. VA apparently envisions this assignment as an adjunct duty and not a 

primary responsibility. 

3. Appeals lane 

A claimant may elect to appeal once they receive a decision by VBA (either 

a center lane decision or a difference of opinion decision). Under this proposal, 

a claimant must then make a choice: submit no new evidence and receive an 

expedited decision (promised within 1 year of the appeal), or choose to submit 

new evidence and/or request a hearing. Under this scenario, a Veteran Law 

Judge will conduct a hearing at some undefined point in time and make a decision. 

If the veteran elects the expedited lane, the BVA would conduct a de novo 

review of the evidence in the record at the time VBA made its original decision. 

If a hearing is held or new evidence is submitted, the BVA will make a decision 

based on the evidence in the record at the time the VBA decision was made and 

whatever new evidence is submitted during the appeal. 

However, under this proposal remands are severely limited and are only allowed if it is determined that VBA did not fulfill its duty to assist a claimant 

as required by law prior to the VBA decision under appeal. What is not addressed is what action is required if evidence submitted during the appeal, either prior to the hearing or at a hearing, would trigger VA’s duty to assist if 

it were submitted as a center lane claim. It appears that VA will not require 

the remand of the appeal for duty to assist development. This penalizes veterans who seek appellate review but later discover evidence. The only way they 

can obtain the assistance of VA is by withdrawing their appeal and submitting 

a supplemental claim in the center lane. This causes them to lose their place 

in the appeal process. Further, it may not even be a viable alternative since the 

one year period for submitting a supplemental claim may have lapsed while 

awaiting a hearing at the BVA. 

Once the BVA makes a decision, the claimant may appeal to the Court of Appeals for Veterans Claims (CAVC) or may submit additional evidence within 1 

year to have the issue reconsidered by VBA. 

The premise of these changes is to provide virtually unlimited opportunity for the 

claimant to prove his/her claim by going through the center or claims lane. The 

other premise is that VBA will be able to adjudicate, or readjudicate, these claims 

in an expeditious manner (there is vague talk of the 125 day standard). 

The BVA becomes the winner in this process. With remands limited to duty to 

assist errors, remands should be significantly reduced. While this is helpful to the 

BVA and appeals processing, it becomes problematic for veterans who have their appeals remanded for other reasons today. 

58 

This proposal is designed to address the frustration of claimants by reducing the 

length of time it takes them to obtain a decision from VA. However, what they lose 

is the ability to submit evidence critical to the favorable resolution of their claims. 

Further, we are certain that the percent of claims granted by the BVA will fall because of these changes. 

Concerns 

A number of areas of concern are not adequately addressed in this proposal. Leaving many of these issues to VA to refine by regulation creates an opportunity to do 

mischief. 

Duty to Assist 

The duty to assist claimants is well established by both regulation and case law. 

If a claimant at any point in the process identifies new evidence which is not of 

record, VA is obligated to assist the claimant in obtaining it. While we all want to 

see all the evidence submitted at the start of a claim, we understand that is not 

always possible. Newly discovered service or medical records may point to other evidence which must be obtained. New medical evidence may point to the need for an 

additional examination. 

We have two concerns about limiting the duty to assist at the BVA. First, it is 

unclear what, if any, action is required if a claimant submits new evidence during 

the appeal process, either in documentary form or during a hearing. It is likely that 

additional development may be required. However, this proposal does not address 

how that is to be accomplished. Should the BVA remand the appeal to the VBA for 

development? Should the appeal be dismissed so the evidence can be developed? Or 

will the BVA make a decision based on the evidence in front of it, assuming that 

if the appeal is denied the newly submitted evidence will revert to VBA for additional development and decision? This last alternative suggests a legal problem: if 

the BVA receives evidence which in the center lane would trigger the duty to assist, 

and if the BVA makes a decision on that evidence without ordering additional development, would the veteran be precluded from bringing the claim back to the center 

lane for development because the issue was decided on that evidence? 

Second, we are concerned that with a limited duty to assist requirement at the 

BVA, appeals may not be remanded because the BVA decides that the failures are 

‘‘harmless error’’ and would not affect the outcome of the appeal. While we agree 

that there is danger in overdeveloping a record, there is also truth in the old adage, 

‘‘you don’t know what you don’t know.’’ 

Docket Flexibility 

Currently the BVA is limited to only one docket. Under this proposal, BVA would 

have to maintain at least two dockets in order to have the flexibility to more efficiently work its cases. At the very least, the BVA would need a separate docket for 

the fast, no hearing/evidence lane so that those appeals are decided as rapidly as 

possible. In addition, BVA would need at least a second docket for those appeals requiring hearings. Finally, to achieve the greatest efficiencies, the BVA should have 

a separate docket for appeals wherein the claimant submitted additional evidence 

but did not request a hearing. 

Therefore, we suggest a total of five dockets during transition. We believe the 

BVA needs the flexibility to use two dockets during the resolution of its current 

backlog: one docket for those wherein hearings are requested and a second docket 

for those appeals without hearings. It needs three additional dockets under this proposal: one docket for the fast appeals lane; one docket for the hearing lane and one 

docket where evidence is submitted but no hearing is requested. 

Independent Medical Opinion/Independent Medical Expert 

Under this proposal, VA would eliminate the ability of the BVA to ask for an 

Independent Medical Opinion (IMO). It argues that IMOs are available through the 

claims lane, so this authority is not necessary. 

There are several reasons why the Independent Medical Opinion (IMO) authority 

should remain with the BVA. Under the current claims process, requesting and obtaining an IMO is difficult. While VA policy allows a veteran’s representative to ask 

for an IMO, it must be approved by the regional office Veteran Service Center Manager (VSCM) before submission to the VA Compensation Service. Then it must be 

approved by the Compensation Service before the opinion is requested. This cumbersome procedure requires the approval of two individuals who may, or may not, 

have sufficient training and experience to understand the need for the IMO. 

The BVA currently orders about 100 IMO’s per year. A veteran’s representative 

need only convince a Veterans Law Judge (VLJ) that an opinion is necessary. VLJ’s 

59 

have the training and experience necessary to make these decisions——training and 

experience which may be lacking in VSCM’s and Compensation Service personnel. 

New Evidence 

Under current law, a claimant must submit new and material evidence in order 

to reopen a claim after a final disallowance. We have long believed that this creates 

an unnecessary burden on both VA and veterans. In practical terms, VA is required 

to make a decision as to whether evidence is both new and material. A VLJ recently 

estimated that between 10–20 percent of the appeals he reviews each year are on 

the issue of whether evidence is new and material. 

It is our belief that eliminating the new and material standard would reduce nonsubstantive appeals by allowing regional office staff to make a merits decision on 

the evidence of record. With merits decisions, veterans have a better understanding 

of why the evidence they submitted was not adequate, and any appeal is on the substance of the decision, not on whether the evidence was new or material. 

During our discussions with VA on an improved appeals process, we have argued 

that while a new and relevant evidence standard is potentially lower than the current new and material evidence requirement, it still imposes a bar to merits decisions, creating unnecessary work for regional office staff and unnecessary appeals 

to the BVA. 

The VFW proposes that the only requirement to obtain reconsideration of a claim 

should be the submission of new evidence. 

Higher Level Review 

Under 38 CFR 3.2600, claimants may elect a review by a Decision Review Officer. 

This individual has the authority to conduct a de novo review of the evidence, order 

additional development as needed, and make a decision. No deference is given to 

the prior decision. 

Under this proposal, a difference of opinion review is provided. The reviewer need 

not be a DRO but can be anyone of a higher grade detailed to make the review. 

It is likely that this reviewer will not receive separate training and will have this 

assignment as an adjunct duty. 

The VFW believes that while retention of a difference of opinion review is potentially beneficial to claimants, this change in authority will ensure that less well 

qualified individuals will conduct these reviews, decreasing quality and increasing 

the number of claimants denied. 

Further, VA intends to make these reviews based solely on the evidence of record 

and preclude the authority to order additional development except for duty to assist 

errors. This presents the same problems for a claimant at a difference of opinion 

review as it does for evidence submitted at a BVA hearing described above. Any evidence submitted during a difference of opinion hearing would not be subject to the 

duty to assist. Once a decision is made, how might a claimant receive assistance 

by VA as required by the current duty to assist provisions of the law? This problem 

is not resolved by the language of this proposal. The VFW believes that the difference of opinion reviewers should be able to remand a claim for additional development based on evidence received during the difference of opinion review. 

Claims in Different Lanes at the Same Time 

One of the unresolved issues is whether claimants may have the same issue in 

more than one lane simultaneously. Under the proposed appeals process, it appears 

that the following scenario is not possible: 

A veteran files an appeal in the BVA fast lane (no evidence, no hearing). Several 

months later, and before the BVA issues a decision, the veteran obtains new evidence which is pertinent to the claim. Since the veteran is precluded from submitting it to the BVA, he/she must submit it to the claims lane for consideration and 

adjudication. Depending on the nature of the evidence and the relative efficiency of 

the regional office staff, it is possible that the veteran could receive a favorable decision at the regional office prior to the issuance of the BVA decision. 

It is for this reason that we urge Congress to address the permissibility of submitting evidence during the pendency of an appeal and to which entity it should be submitted. The VFW suggests that if the BVA cannot order a remand to properly develop evidence submitted during an appeal, than claimants should have the right 

to submit that evidence to the center lane while an appeal pends at the BVA. 

REPORTS

The only way to know whether a process is working is by collecting and studying 

the data generated by it. Noticeably absent from the proposed legislation is any requirement that VA collect data, analyze it and report to Congress and the public. 

60 

At a minimum, Congress and the veteran community might want to know the following on a regular recurring basis: 

• Current backlog 

– The total number of appeals pending 

– The subtotals of pending appeals at each stage of processing 

– The average days pending at each processing stage 

– What actions were taken during the reporting period to process and resolve 

pending appeals in each processing stage 

– The oldest pending appeals at each stage and what action VA has taken 

to process them. 

• Similar questions could be asked of VA concerning the new claims and appeal 

process 

– How many claims are pending in each lane 

– Average timeliness for processing claims and supplemental claims, by regional office 

– Average timeliness for processing claims in the difference of opinion lane, 

by regional office 

– Average days pending of appeals in the fast lane at the BVA 

– Average days pending of appeals in the hearing lane at the BVA 

– Average days pending of appeals in the evidence only lane at the BVA 

– Total number of IMO requests made by the BVA 

– Total number of IMO requests approved by the Compensation Service 

• And, of course, 

– Appeals granted, remanded and denied under the current appeals process 

– Appeals granted, remanded and denied under the proposed appeals process. 

PLAN TO REDUCE CURRENT BACKLOG

VA must have a plan in place to process to completion the 440,000 pending appeals. It must be part of the proposed legislation for two reasons: 

VA will need additional latitude to process its current backlog of appeals. 

Changes to claims and appeals processing which VA may wish to consider include: 

a. Allow the BVA greater flexibility in managing its workload. Specifically, 

the BVA should be able to maintain a second docket to allow faster processing 

of non-hearing appeals. 

b. There are many cases pending BVA review which have additional evidence 

submitted while the issue was on appeal but not considered by VBA. In order 

to facilitate efficiencies, VA should be allowed to screen and assign those appeals to regional office staff for the purpose of determining whether the benefit 

may be granted. We suggest that with the greater number of Rating Veterans 

Service Representatives available to review those appeals, many could be granted without further appellate review. In the case where a full grant of benefits 

is not possible, the case can be returned to the BVA for further consideration 

without loss of place in the docket. 

c. In the alternative, VA could create a cadre of DRO’s who are tasked with 

pre-screening and deciding cases on appeal. They would have the authority to 

grant any benefit allowed under the law. They could also identify deficiencies 

in the record and order a remand. This alternative would free up VLJ’s and 

their staff attorneys to more efficiently process other appeals pending before the 

BVA. 

COURT OF APPEALS FOR VETERANS CLAIMS

Veterans could be adversely effected by these changes because they will be discouraged from seeking review by the Court of Appeals for Veterans Claims (CAVC). 

As this proposal is currently written, the only finality to the process occurs when 

one of three things happens: 

1. The veteran becomes satisfied with a decision and stops seeking additional 

benefits; 

2. The veteran fails to submit new (or new and relevant) evidence within the one 

year period following a VA decision; or 

3. The veteran seeks review by the CAVC and is denied. 

Under this proposal, the only possible time a veteran might seek review by the 

CAVC of a decision is when he/she has completely exhausted every possible piece 

of new evidence and has absolutely nothing left to submit to VA. One could argue 

that this is good for veterans and the BVA since it ensures that only those claimVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
61 

ants who have no more evidence to submit go to the CAVC. Fewer appeals mean 

fewer remands. 

It also means fewer precedent decisions instructing VA that their practices do not 

conform to regulations and their regulations do not conform to the law. The CAVC 

has provided a significant and useful function throughout its nearly 30 years of existence——it has told VA when it was doing things wrong. 

This bill is intended to create a new claims and appeals process. VA must write 

regulations which fill in the gaps and provide additional guidance to both VA employees and veterans. Without judicial review, there exists no entity which can review VA’s actions and determine whether they follow the law. 

This proposal is designed to significantly reduce the impact of the CAVC on 

claims processing with VA by discouraging veterans from appealing to the Court. 

To ensure that veterans are not discouraged from appealing to the CAVC, we urge 

Congress to amend this proposal to allow claimants to submit new evidence within 

one year of a CAVC decision. 

RECOMMENDATIONS: 

Our recommendations for amending this proposal are summarized below: 

1. Require VA to devise a detailed and comprehensive plan for processing its 

current work while also processing its current appeals workload. This plan 

should include an estimate of total staffing required and a projected completion date based on receipt of that additional staff. 

2. Congress should provide the additional staffing as required. Failure to do so 

will ensure that appeals will continue to increase. 

3. Congress should provide BVA with the flexibility to establish an additional 

docket to process its current workload. 

4. Once a new claims and appeal process becomes effective, provide the BVA 

with the flexibility to establish up to three additional dockets to handle appeals. 

5. Congress should allow VA twelve months or longer to publish and finalize 

regulations necessary to implement this proposal. If this proposal is passed 

in 2016, we suggest that the effective date of the changes be January 1, 2018. 

6. Congress must resolve the issues surrounding the duty to assist. We believe 

that those conducting the difference of opinion review and the BVA should be 

required to remand to the center lane for additional development any evidence submitted during the difference of opinion or appeal process which triggers the duty to assist. 

7. If Congress limits the duty to assist as shown in the current version of this 

bill, it should allow the submission of new evidence in the center claims lane 

while cases are pending in either the difference of opinion or appeals lane. 

8. Congress should retain the BVA’s current authority to request Independent 

Medical Expert Opinions under 38 U.S.C. 7109. 

9. The DRO position should be retained. 

10. Congress should eliminate the new and material evidence requirement found 

in 38 U.S.C. 5108 and require only new evidence in order to reopen a claim. 

11. Evidence required to file a supplemental claim should be new evidence and 

not new and relevant evidence. 

12. Congress should require VA to provide the reports outlined earlier in this testimony and any other reports it deems appropriate. 

13. Considering the critical role of the CAVC in the oversight of VA’s rules making and claims processing, we encourage Congress to provide claimants with 

the opportunity to submit new evidence within one year of a CAVC decision. 

DISCUSSION DRAFT REGARDING VETERANS AFFAIRS CONSTRUCTION REFORM

This draft legislation provides four provisions to improve the construction process 

and provide greater transparency related to costs and funding. While the VFW continues to call on Congress to provide VA greater authority to enter into public-private partnerships, sharing agreements and leases, VA will continue to need to build 

medical facilities. 

The VFW fully supports the provision that mandates a forensic audit on any medical facility project that is projected to cost more than 25 percent of the appropriated 

amount. These audits will shine a light on what causes cost overruns, and provide 

both VA and Congress the information they need to correct inefficient construction 

practices. 

Currently, the Secretary must report to Congress where bid savings come from 

and where they are going to be used. However, the Secretary is not compelled to 

report in detail the amounts that have already been obligated, how much of the 

62 

project has already been completed and how bid savings has already been provided 

to that project. This provision will provide Congress with a clearer picture of construction projects that are susceptible to cost overruns. The VFW fully supports this 

provision. 

The legislation also calls for quarterly reports on the budgetary and scheduling 

status of each project, as well as a comparison between the planned and actual costs 

and scheduling status. This provision will provide Congress updates throughout the 

project life cycle, allowing it to detect cost overruns and construction delays early 

so corrective actions can be taken. The VFW fully supports this provision. 

Last, this legislation calls on VA to use industry standards when constructing 

medical facilities. While the VFW agrees that VA should adopt private sector best 

practices, there are no clear industry standards to follow. That is why the VFW suggests codifying and putting in regulation many of the best practices, some of which 

VA has recently adopted, that will build in efficiencies and reduce cost overruns and 

building scheduling delays. The VFW believes that VA must always include a medical equipment planner as part of the architectural and engineering team; improve 

communications through a project management plan; subject all projects plans to 

peer review; develop change-order processes that increase the timeliness of the 

changes; and when practical, use a design-build process to reduce the number of 

change orders. 

DRAFT BILL TO EXPAND ELIGIBILITY AND MEDICAL SERVICES UNDER SECTION 101 OF

THE VETERANS ACCESS, CHOICE, AND ACCOUNTABILITY ACT OF 2014. 

This legislation would expand eligibility for the Veterans Choice Program to include veterans who have received care through the Project Access Receive Closer to 

Home (ARCH). The VFW supports this legislation and has a recommendation to improve it. 

Project ARCH has been a very successful community care program that ensures 

veterans are not required to travel too far for the care they need. Veterans who receive care through Project ARCH inform the VFW that they want to continue to see 

their doctors. Given that Project ARCH is set to expire soon, the VFW has urged 

VA to ensure Project ARCH veterans are able to continue to receive the care they 

need without having to transfer to new providers or have their process for receiving 

such care changed. This legislation would rightfully expand community care eligibly 

to these veterans to ensure that occurs. 

However, this legislation would make any veteran who has used Project ARCH 

eligible for the Veterans Choice Program, even if such veteran is no longer eligible 

for Project ARCH. That is why the VFW urges the Committee to amend this legislation to expand eligibility only to veterans who would otherwise continue to be eligible for Project ARCH. 

STATE OUTREACH FOR LOCAL VETERANS EMPLOYMENT (SOLVE) ACT OF 2016

The VFW supports this legislation, which would provide states with greater flexibility in how they use funds provided under the Jobs for Veterans State Grants 

(JVSG) provided by the Department of Labor’s Veterans Employment and Training 

Services (DOL-VETS). 

This bill would prohibit DOL-VETS from rejecting a state’s JVSG proposal based 

solely on which state agency would execute the plan. It would further prohibit DOLVETS from rejecting a state’s plan in its entirety because a portion of the plan is 

unacceptable, without providing an explanation of why that portion was not approved. The VFW does not believe that DOL-VETS does either of these things now, 

so these provisions would simply codify current practice. We note that DOL-VETS 

would maintain full authority to reject all or part of a state’s plan based upon its 

merits, and believe states should continue to be held to a high standard to ensure 

JVSG funds are being administered in a way that maximizes employment outcomes 

for veterans. 

This bill would also allow states to identify additional significant barriers to employment (SBE) that would make veterans eligible for intensive services from Disabled Veterans Outreach Program (DVOP) specialists. Currently, only veterans with 

compensable disabilities are defined as having SBE. Under this legislation, states 

may include other veterans as SBE, such as homeless veterans, or those experiencing long term unemployment. While the VFW believes that DVOPs should provide services to disabled veterans first, they may have the ability to assist others 

as well. We believe states should be encouraged to develop innovative solutions to 

meet the unique needs of their unemployed and underemployed veterans. 

63 

DISCUSSION DRAFT OF VA’S PROPOSAL TO MODIFY REQUIREMENTS UNDER WHICH THE

DEPARTMENT IS REQUIRED TO PROVIDE COMPENSATION AND PENSION EXAMINATIONS

TO VETERANS SEEKING DISABILITY BENEFITS. 

The VFW opposes this legislation, which would relieve VA of its obligation to 

order medical exams for certain veterans who file claims for disability compensation 

by requiring ‘‘objective evidence’’ that the disability was incurred or aggravated in 

service; became manifest during a presumptive period; or the event in service was 

capable of causing the injury. The language of the bill leaves it up to VA to define 

‘‘objective evidence’’ by regulation. This would raise the standard for duty to assist, 

which currently states that VA ‘‘will provide’’ an examination or opinion if necessary 

to decide the claim. 

If this bill were to become law, it would have an indisputably negative impact on 

certain veterans. One category would be veterans who have disabilities that cannot 

be observed by others, such as fatigue, pain, or tinnitus. Another would be those 

whose service records may have been destroyed, damaged, or missing, including in 

the 1973 fire at the National Personnel Records Center. 

To take one example, if a veteran’s service records were not available, and attempts to locate them were unsuccessful, VA could just deny the claim. In certain 

circumstances, just receiving an exam will enable the veteran to show that the type 

of injury claimed would have onset during military service, given the severity and 

length of time between the injury and the exam. 

Additionally, the word ‘‘objective’’ is not defined. It is unclear whether certified 

buddy statements, affidavits, and credible lay testimony would be considered ‘‘objective evidence’’ if the veteran did not fall into one of the ‘‘presumptions’’ where VA 

allows this evidence to be considered. VA currently accepts credible lay testimony 

from veterans in certain cases to prove an in-service event, even if it is a circumstance not controlled by 38 U.S.C. 501(a). Given these concerns, the VFW must 

oppose this bill. 

DISCUSSION DRAFT, VETERANS MOBILITY SAFETY ACT OF 2016

The VFW supports this legislation, which would establish minimum safety standards for the Automobile Adaptive Equipment Program. 

The Automobile Adaptive Equipment Program was established to enable severely 

disabled veterans to drive without the assistance of others by making modifications 

to their exiting vehicles or purchasing a new vehicle with the specific accommodations they need. Because the VA automobile grant is a one-time benefit, it is important that modifications made to vehicles are safe and function properly the first 

time. 

Currently, VA prosthetic representatives are required to assist veterans in locating an approved vendor and inspecting the workmanship of vehicle modification. VA 

encourages veterans to verify that a vendor is registered with the National Highway 

Traffic Safety Administration (NHTSA), who is responsible for developing motor vehicle safety standards. However, NHTSA does not conduct thorough compliance 

evaluations to ensure registered adaptive equipment installers comply with the established standards. The VFW supports establishing a comprehensive policy regarding quality standards for providers. However, VA must also ensure that requiring 

certification of providers does not delay a veteran’s ability to have his or her vehicle 

modified. 

Mr. Chairman, this concludes my testimony. I will be happy to answer any questions you or the Committee Members may have. 

Chairman ISAKSON. Thank you very much. 

Lou Celli of The American Legion. Welcome back, Lou. 

STATEMENT OF LOUIS J. CELLI, JR., DIRECTOR, NATIONAL 

VETERANS AFFAIRS AND REHABILITATION DIVISION, THE 

AMERICAN LEGION 

Mr. CELLI. Thank you very much. 

Additional medical training for non-VA providers, VA coverage 

for newborns and their mothers, suicide prevention measures for 

our women veterans, ensuring veterans are properly treated and 

compensated for adverse exposure to burn pits, ensuring we understand VA’s capacity to treat our severely injured veterans, construction management assistance, addressing the poisoning of our 

64 

Camp Lejeune military community, and while we are at it, we 

should probably address Fort McClellan, too, ensuring States are 

able to make the best possible use of the Federal funding they receive to help veterans reintegrate and find gainful employment, 

and finally, appeals modernization. All great legislative initiatives. 

Chairman Isakson, Ranking Member Blumenthal, and Members 

of this Committee, on behalf of National Commander Dale Barnett 

and the over two million members that make up The American Legion, we welcome this opportunity to comment on bills that discuss 

these important issues as well as the future of VA health care. 

The American Legion is proud to have worked on a number of 

these important issues with this Committee and would like to 

thank the Committee and your dedicated professional staff for all 

the work they did on the SOLVE Act. And while our position on 

all of these bills can be found in our submitted written testimony, 

I would like to spend the balance of my time today to talk about 

two measures before this Committee, appeals modernization and 

access to non-VA health care. 

Dollar for dollar, VA provides the most access and best health 

care in the United States when care is provided onsite at a VA 

campus. They consistently score several points above their civilian 

counterparts in satisfaction surveys and have won awards from 

J.D. Power and Associates year after year. 

When The American Legion worked with this Committee several 

years back to draft the legislation that would ultimately become 

the Choice Act, we did so as an emergency measure to ensure that 

veterans hidden away on secret wait lists were immediately provided the care that they had earned. We stated at the time and 

state here again today that we never supported Choice becoming 

a permanent program. The reason is because we know that VA already has every authority granted to it without Choice when it 

comes to providing contracted care to our Nation’s veterans. 

Current community contract authority, Project ARCH, and other 

contracting vehicles already in statute allow VA to send a veteran 

into the local community whether the veteran lives across the 

street from the nearest VA facility or is 20, 40, or even a hundred 

miles away. Further, once VA has established a provider relationship with area offices, agreements are put in place to ensure that 

VA gets the medical records back from these doctors and clinics so 

that they can incorporate them into the veteran’s history. 

This is an issue that The American Legion was very concerned 

about and the reason that the provision was in the original Act to 

require Choice contracted doctors to turn over the medical records 

before getting paid. But we all know how that worked out and we 

were back here a couple of months ago to repeal that provision because doctors simply refused to send the medical records to VA, resulting in VA being accused of slow paying and causing doctors to 

wrongly bill veterans and ultimately refusing to see any more VA 

patients until they got paid. Since it was more important to ensure 

veterans had the access to health care that they needed, and in an 

attempt to protect their credit, we all acquiesced and agreed to let 

the doctors get paid whether they have turned the records over or 

not. 

65 

This is not the system we support. Best as we can tell, the only 

positive thing to come out of Choice was the emergency funding 

that came with it. 

The other major reform bills we are here to talk about today is 

the Appeals Modernization Act. VA came to Congress and said, we 

have a problem. The appeals process needs to be updated so that 

veterans will be served better. Congress said to VA, go make it so. 

VA gathered all of the stakeholders who work with veterans and 

do this work every day and said, how do we redesign the mouse 

trap? 

So, for the past several months, VA, The American Legion, my 

colleagues here at this witness table today, and several of our partner stakeholders worked together to produce a process that preserves the rights of veterans, gives claimants more options, helps 

VA organize and track appeals more effectively, and improves the 

quality of the decisions and notifications that claimants receive. 

This new proposed process requires Congressional approval and 

will ultimately save money. We have done our part and now it is 

your turn. 

I thank you and I look forward to any questions that this Committee may have. 

[The prepared statement of Mr. Celli follows:] 

PREPARED STATEMENT OF LOUIS J. CELLI, JR., DIRECTOR, NATIONAL VETERANS

AFFAIRS AND REHABILITATION DIVISION, THE AMERICAN LEGION

Chairman Isakson, Ranking Member Blumenthal, and distinguished Members of 

the Committee, on behalf of National Commander Dale Barnett and The American 

Legion; the country’s largest patriotic wartime service organization for veterans, 

comprising over 2 million members and serving every man and woman who has 

worn the uniform for this country; we thank you for the opportunity to testify regarding The American Legion’s position on the pending and draft legislation. 

S. 2049: 

To establish in the Department of Veterans Affairs a continuing medical education 

program for non-Department medical professionals who treat veterans and 

family members of veterans to increase knowledge and recognition of medical 

conditions common to veterans and family members of veterans, and for other 

purposes. 

S. 2049, would require the Secretary to establish in the Department of Veterans 

Affairs (VA) a Continuing Medical Education (CME) program for non-Department 

medical professionals who treat veterans and family members of veterans to increase knowledge and recognition of medical conditions common to veterans and 

family members of veterans, and for other purposes. This bill also will ensure effective treatment for veterans who seek their health care outside the VA health care 

system. 

This bill defines the term ‘‘non-Department medical professional’’ to mean any of 

the following individuals, a doctor; a nurse; a physician assistant; a psychologist; a 

psychiatrist; or such other individuals as the Secretary considers appropriate. They 

must be licensed by an appropriate medical authority in the United States and in 

good standing and is not an employee of the Department of Veterans Affairs that 

provides care to veterans or family members of veterans under the laws administered by the Secretary of Veterans Affairs. 

This bill would provide education training for Non-VA medical professionals by 

giving them specialized training and resources to better serve veterans and their 

families. The program would also enhance Non-VA medical professional’s knowledge 

of the medical, mental and physical conditions veterans experience based on their 

military service, which can represent a unique spectrum when compared to nonveterans. 

The American Legion urges Congress and VA to enact legislation and programs 

within the VA that will enhance, promote, restore or preserve benefits for veterans 

and their dependents, including, but not limited to, the following: timely access to 

66 

1 American Legion resolution No. 23 (May 2016): Support for Veterans Quality of Life 2 VA Women’s Health Care FAQ 

3The American Legion System Worth Saving Report: Women Veterans Health Care–2013 4 American Legion Resolution No. 45: (Oct 2012): Women Veterans 

quality VA health care; timely decisions on claims and receipt of earned benefits; 

and final resting places in national shrines and with lasting tributes that commemorates their service.1

The American Legion supports S. 2049. 

S. 2520: NEWBORN CARE IMPROVEMENT ACT

To improve the care provided by the Secretary of Veterans Affairs to newborn 

children 

Currently, VA covers newborn care for the first seven days after birth in a nondepartment facility for eligible women veterans who are receiving VA maternity 

care. Newborn care includes routine post-delivery care and all other medically necessary services according to generally accepted standards of medical practice. VA 

does not provide child delivery care in VA health care facilities, but rather refers 

women veterans outside the VA through contracted care. Under current law, VA 

only provides care for the first 7 days after birth, even if birth complications require 

continued care beyond that period.2 Beyond 7 days, the cost of care is the responsibility of the veteran and not VA. If this bill is enacted into law, it would extend 

the timeframe VA would be responsible to 14 days. 

In 2011, The American Legion conducted a Women Veterans Survey with 3,012 

women veterans in order to better understand their healthcare needs through VA. 

The survey found while there were improvements in the delivery of VA healthcare 

to women veterans, challenges still existed, including access to appropriate care at 

VA facilities. 

In 2012–2013, The American Legion’s System Worth Saving Task Force report focused on women veterans’ health care. The objectives of the report were to: 

• Understand what perceptions and barriers prevent women veterans from enrolling in VA, 

• Determine what quality-of-care challenges women veterans face with their VA 

health care, and to 

• Provide recommendations and steps VA can take to improve these access barriers and quality-of-care challenges. 

While maternity and newborn care is primarily purchased outside VA, the Task 

Force found several medical centers had challenges finding hospitals in the area 

that would accept fee-basis for maternity care services due to VA’s required use of 

the Medicare reimbursement rate. At other medical centers, fee-basis expenditures 

on women veterans’ gender-specific services were not even available. There must be 

better information on what is needed if VA is to improve services. 

The American Legion recommends that the Business Office managers be required 

to track women veterans’ gender-specific fee-basis expenditures.3 Furthermore, 

these expenditures should be rolled up by VA Central Office (VACO) and disseminated to stakeholders and for future needs within VA. All stakeholders must be able 

to assess weak spots in order to improve services. 

Currently, there is at least anecdotal evidence of problems meeting the full spectrum of neonatal care. If women veterans are to receive care during and following 

their pregnancies, it needs to be a full spectrum of care, and they should not be 

short changed in terms of necessary services. 

With this legislation, the amount of care female veterans can receive post-pregnancy would be improved and this is a needed fix. 

The American Legion is committed to working with VA in order to ensure that 

the needs of the current and future women veterans’ population are met and the 

VA should provide full comprehensive health services for women veterans department wide.4

The American Legion supports S. 2520. 

S. 2487: FEMALE VETERAN SUICIDE PREVENTION ACT

To direct the Secretary of Veterans Affairs to identify mental health care and suicide 

prevention programs and metrics that are effective in treating women veterans 

as part of the evaluation of such programs by the Secretary 

This bill would improve female veteran suicide prevention programs within VA by 

amending Title 38 of the United States Code to direct the Secretary of Veterans AfVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
67 

5 Changes in Suicide Mortality for Veterans and Non-Veterans by Gender and History of VHA 

Service Use, 2000–2010, Psychiatric Services May 1, 2015 6 American Legion Resolution No. 196: (Aug 2014): Suicide Prevention for American Veterans 7 American Legion Resolution No. 125: (Aug 2014): Environmental Exposures 

fairs to identify mental health care and suicide prevention programs and metrics 

that are effective in treating women veterans. 

This bill also strives to improve suicide prevention programs for female veterans 

enrolled in the VA healthcare system. According to figures in a 2015 study, suicide 

rates among women veterans rose 40 percent during the decade from 2000–2010, 

compared to a more modest increase of 13 percent among the equivalent civilian cohort of women. 5 Women veterans are nearly 6 times more likely than civilian 

women to commit suicide. This legislation seeks to address this imbalance. 

The American Legion continues to urge the President and Congress to expand and 

improve the care provided to veterans and servicemembers who have mental health 

issues or are at risk of suicide.6 This legislation to help women veterans who struggle with suicide is critical, as is in all legislation designed to help veterans struggling with mental health issues and suicide, be they male or female. 

The American Legion supports S. 2487. 

S. 2679: HELPING VETERANS EXPOSED TO BURN PITS ACT

To amend title 38, United States Code, to direct the Secretary of Veterans Affairs to 

establish within the Department of Veterans Affairs a center of excellence in the 

prevention, diagnosis, mitigation, treatment, and rehabilitation of health conditions relating to exposure to burn pits. 

Military personnel currently serving and those who have served in Iraq and Afghanistan have been exposed to a variety of potentially harmful and hazardous substances to include smoke from the burning waste on military installations. Items 

such as plastics, aerosols, electronic equipment, human waste, metal containers, 

tires, batteries are thrown into open pits doused with jet fuel and set ablaze resulting in hazardous smoke drifting into bases and living quarters. As a result, The 

American Legion has long been at the forefront of advocacy for veterans who have 

been exposed to environmental hazards as a result of their service to their country. 

The Helping Veterans Exposed to Burn Pits Act would create a Department of 

Veterans Affairs (VA) center for excellence for the prevention, diagnosis, mitigation, 

treatment, and rehabilitation of veteran’s health-related conditions that have been 

associated with burn pits and environmental exposures. 

The American Legion supports legislation requiring VA to establish a national 

center for the research on the diagnosis and treatment of health conditions of the 

descendants of individuals exposed to toxic substances during service in the Armed 

Forces and establish an advisory board, responsible for advising the national center, 

determining health conditions that result from toxic exposure and to study and 

evaluate cases of exposure.7

The American Legion supports S. 2679. 

S. 2883: APPROPRIATE CARE FOR DISABLED VETERANS ACT OF 2016

To amend title 38, United States Code, to extend the requirement of the Secretary 

of Veterans Affairs to submit a report on the capacity of the Department of Veterans Affairs to provide for the specialized treatment and rehabilitative needs of 

disabled veterans. 

This bill would ensure that severely disabled veterans receive quality health care 

from the VA. From 1996 through 2008, VA was required to report on the number 

of beds and employees who were treating severely injured veterans at VA healthcare 

facilities nationwide. The Appropriate Care for Disabled Veterans Act of 2016, 

would amend Title 38, United States Code (U.S.C.) 38 § 1706—Management of 

health care: other requirements by reinstating the reporting requirement. This would 

provide Congressional oversight that is needed to ensure VA has the resources needed to meet the demand. S. 2883 would preserve benefits and ensure veterans with 

specialized needs to include spinal cord injuries or disorders, blindness, amputations, and mental disorders receive inpatient care at a Department of Veterans Affairs Health Care facility. 

The American Legion urges Congress and the Department of Veterans Affairs 

(VA) to enact legislation and programs within the VA that will enhance, promote, 

restore or preserve benefits for veterans and their dependents, including, but not 

limited to, the following: timely access to quality VA health care, timely decisions 

68 

8 American Legion Resolution No. 23: (May 2016): Support for Veteran Quality of Life 9 American Legion Resolution No. 125: (Aug 2014): Environmental Exposures 

on claims and receipt of earned benefits, and final resting places in national shrines 

and with lasting tributes that commemorates their service.8

The American Legion supports S. 2883. 

S. 2888: JANEY ENSMINGER ACT OF 2016

To amend the Public Health Service Act with respect to the Agency for Toxic 

Substances and Disease Registry’s review and publication of illness and conditions relating to veterans stationed at Camp Lejeune, North Carolina, and their 

families. 

The American Legion has long been at the forefront of advocacy for veterans exposed to environmental hazards. In the last several years new concerns have been 

raised regarding contamination of stateside and international military installations 

such as groundwater contamination at Camp Lejeune, North Carolina. Toxic 

Groundwater at Camp Lejeune existed for decades, and veterans who served at that 

site from 1953 through 1987 were found to be a higher risk for 15 medical conditions. 

In 2012, President Obama signed into the law The Honoring America’s Veterans 

and Caring for Camp Lejeune Families Act of 2012, which requires VA to provide 

health care to veterans and families who have certain illnesses as a result of exposure to well water contaminated by human carcinogens. The Janey Ensminger Act 

of 2016, requires the VA to provide medical care for all diseases that can be scientifically associated to exposure to toxic chemicals found at Camp Lejeune. The bill also 

requires that the Agency for Toxic Substances and Disease Registry (ATSDR), an 

agency within the Centers for Disease Control and Prevention, review all significant 

scientific literature every three years to determine if links have been found between 

toxic exposures found at Camp Lejeune and added diseases and conditions. 

The American Legion supports legislation requiring VA to establish a national 

center for the research on the diagnosis and treatment of health conditions of the 

descendants of individuals exposed to toxic substances during service in the Armed 

Forces and establish an advisory board, responsible for advising the national center, 

determining health conditions that result from toxic exposure and to study and 

evaluate cases of exposure.9

The American Legion supports S. 2888. 

S. 2896: CARE VETERANS DESERVE ACT OF 2016

To eliminate the sunset date for the Veterans Choice Program of the Department of 

Veterans Affairs, to expand eligibility for such program, and to extend certain 

operating hours for pharmacies and medical facilities of the Department. 

The American Legion appreciates Senator McCain’s efforts to improve the provision of health care for America’s veterans. However, one of the central, core elements of the bill expands care in the community in a way that is concerning. While 

The American Legion appreciates certain provisions of the bill such as: 

• Providing enrolled veterans in the VA healthcare system access to walk-in-clinics either inside the VA or outside the VA through contracted health care clinics; • Expanding VA operating hours to nights, weekends, and holidays to accommodate veterans schedules; • Opening VA hospitals to community providers who volunteer their time for the 

purpose of treating veterans; 

• Implementing best-practice peer-reviews by encouraging VA to partner with 

some of the best hospital networks in the Nation such as the Cleveland Clinic and 

the Mayo Clinic by having VA prioritize a review of VA hospitals with the worst 

wait-times or health outcomes and; 

• Expand telemedicine services at the VA by allowing VA health care professionals that are licensed, registered or certified in a state to use telemedicine to provide health care treatments and therapies to veterans residing in other states. 

The concerns with the unrestricted expansion of the Choice program remains a 

critical concern. 

While many veterans initially clamored for ‘‘more Choice’’ as a solution to scheduling problems within the VA healthcare system, once this program was implemented, most have not found it to be a solution, indeed, they have found it to create 

as many problems as it solves. The American Legion operates the System Worth 

Saving Task Force, which has annually traveled the country examining up close the 

delivery of healthcare to veterans for over a decade. What we have found, interVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00072 Fmt 6633 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
69 

10 NPR—May 17, 2016 

acting with veterans, is that many of the problems veterans encountered with 

scheduling appointments in VA are mirrored in the civilian community outside VA. 

The solutions in many areas may not be out in the private sector, and opening unfettered access to that civilian healthcare system may create more problems than 

it solves. Recent reporting, such as the National Public Radio story last week noted 

‘‘thousands of veterans referred to the Choice program are returning to VA for 

care—sometimes because the program couldn’t find a doctor for them’’ or ‘‘because 

the private doctor they were told to see was too far away.’’ 10

The American Legion strongly believes in a robust VA healthcare system that 

treats the unique needs of veterans who have served their country. Veterans should 

be provided with the option of receiving care in the community as a supplement to 

VA health care and not to supplant VA care. The American Legion supported the 

Choice program, and continues to support the ability to supplement VA care with 

care in the community where necessary as a means to augment the VA care, but 

wholesale opening of the program to include use of Choice without restriction means 

pursuing a ‘‘solution’’ we have already seen is not addressing the problems accessing 

care. As predicted by The American Legion, sending patients off VA campuses to community providers absent well-crafted contracts such as those used for Project ARCH 

and PC3 has led to inadequate compliance by local physicians to return treatment 

records to VA following care provided by Choice. 

When the Choice legislation was being developed, The American Legion insisted 

that any doctor treating a referred veteran have access to the veterans medical 

records so that doctors would have a complete history of the veteran’s medical history and be able to provide a diagnosis based on a holistic understanding of the patients medical profile. This is important for a litany of reasons, not the least of 

which includes the risk of harmful drug interaction, possible overmedication, and a 

better understanding of the patients previous military history—all important factors 

in wellness. 

Also, The American Legion was adamant that any treating physician contracted 

through Choice had a responsibility to return treatment records to be included in 

the patients VA medical file so that VA could maintain a complete and up-to-date 

medical record on their patients. We believed that safeguarding of the veterans 

medical records was so important, that we helped craft a provision be included in 

the language that prevented VA from paying physicians until they turned over the 

treatment records to VA. Sadly, a few months back, The American Legion was 

forced to acquiesce our position in favor of paying doctors whether they turned over 

the medical records or not, because doctors just weren’t sending the records—it just 

wasn’t that important to them, and when VA refused to pay, they pointed the finger 

at VA and blamed VA for not paying them, ultimately billing the veterans and refusing to see any more VA-referred patients until they got paid. Since it was more 

important that veterans had access to sufficient medical care and not have their 

credit damaged, The American Legion supported repealing the current provision. 

This, among other reasons including unsustainable cost, is why Choice is not the 

answer. The equation is simple; a dramatic increase in cost is guaranteed to result 

in an increased financial burden to veterans using VA care which will include higher co-pays, premiums, deductions, and other out-of-pocket expenses currently suffered by non-VA healthcare programs. 

The American Legion opposes S. 2896. 

S. 2919: STATE OUTREACH FOR LOCAL VETERANS EMPLOYMENT (SOLVE) ACT OF 2016

To provide greater deference to States in carrying out the Disabled Veterans’ Outreach Program and employing local veterans’ employment representatives. 

This legislation would empower states with additional flexibility and autonomy to 

better utilize existing Federal Department of Labor (DOL) veteran’s employment 

grants. While every state will have to continue to submit their Jobs for Veterans 

State Grants (JVSG) plans to DOL for review and approval, this legislation would 

ease the plan approval process for states while allowing each respective Governor 

to decide which state agency or department should administer the grants. The idea 

is to allow the Governors to place the JVSG funds in their state veteran’s commission, which is typically led by veterans who are more likely to care about veterans 

and certainly understand the struggles and issues facing our Nation’s heroes and 

their families. 

Further, it allows Governors to tailor and individualize what constitutes a ‘‘significant barrier to employment’’ (SBE) within their state. Understanding that SBE’s are 

70 

11 American Legion Resolution No. 336: (Aug 2014): Support the Restoration of the Duties and 

Responsibilities of the DVOP and LVER 

sometimes geographic, allowing or affording each Governor the ability to recognize 

and authorize an SBE for their respective state goes a long way to assist veterans 

seeking employment in a unique job market. Knowing how to effectively work in the 

fishing industry may be a very important skill set to possess in Alaska, Hawaii or 

Louisiana but not necessarily important to the job market in Montana, Ohio or Nevada; making sense to give states the ability and authority to create or add an additional SBE solely for their unique and specific job market. 

This legislation is encouraging states to coordinate and co-locate with other state 

programs to efficiently use Federal and state veteran’s resources together to benefit 

our servicemen and women. The SOLVE Act is a no-cost, common sense bill which 

encourages efficiency and good governance in the pursuit of increased employment 

for our Nation’s veterans. 

The American Legion supports the Department of Labor’s Assistant Secretary for 

Veterans’ Employment and Training Service being required to review all Department of Labor employment and training programs in order to ensure that all programs provide priority services to veterans.11

The American Legion supports S. 2919. 

DISCUSSION DRAFT: 

To reform the rights and processes relating to appeals of decisions regarding claims 

for benefits under the laws administered by the Secretary of Veterans Affairs. 

More than 1.4 million claims for veterans’ disability were processed last year, and 

the Veterans Benefits Administration (VBA) is on track to surpass even that number this year. At a ten to twelve percentage rate of appeal, the workload at the 

Board of Veterans Appeals (BVA) will likely never disappear. 

With an appeals inventory at roughly half a million pending claims, the VA asked 

stakeholders to gather in several high intensity day-long working meetings to help 

come up with a system that would recommend solutions to help VBA and the Court 

of Appeals for Veterans Claims (CAVC) better process and manage this existing 

workload. 

The American Legion currently holds power of attorney on about three quarters 

of a million veteran claimants. We spend more than two million dollars a year on 

veteran claims and appeals processing and assistance. Our success rate at the BVA 

hovers at around 80 percent, either outright grants of benefits or remands to properly process a claim that VA had failed to properly process at the lower level of the 

Regional Office. 

When VA invited stakeholders to the table to discuss appeals modernization, The 

American Legion knew that appeals modernization was not about appeals alone, 

that the recommendations required to streamline appeals needed to take place much 

earlier in the process, at the point of the initial adjudication. With that, one of the 

first things the group looked at was the VBA decision notice. Refining the initial 

decision notice is not as easy as it sounds and several of the Veterans Service Organizations (VSOs) worked with VA for months in 2014 to try and improve these letters, with frustrations over lack of clarity still remaining. Getting VBA to agree to 

improve the quality of the letter was a landmark accomplishment that got the process off to a good start. 

After the initial VA commitment to improve the decision letter, the stakeholders 

listened to what they perceived as barriers to improved appeals processing, which 

supported another of the primary American Legion concerns, the lack of a centralized training process. The BVA has complained that the appeal case file that is finally presented to a veterans law judge looks nothing like the claim that was adjudicated at the Regional Office (RO) level in almost all cases, due to the allowance 

of additional evidence during the appeals process. Therefore VBA claims they have 

no way to determine how, or if ROs are misinterpreting the law or making 

mistakes. 

BVA further argued that if there were a process within the appeals system that 

allowed law judges to review disputed decisions that were adjudicated at the regional offices, based only on the same information that the regional office had at 

the time the claim was originally decided, then BVA would be able to provide a 

‘‘feedback loop’’ they could use to help train and educate ROs, and additionally help 

identify regional offices where the decisions uniformly fail to address specific legal 

issues. 

It was with these two foundational underpinnings that the big six VSOs, in addition to state and county service officers, veteran advocate attorneys, and other interVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00074 Fmt 6633 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
71 

ested groups worked with senior VA officials from VBA and BVA to design the 

framework of the legislation being discussed here today. 

The guiding principle leading all of our discussion was ensuring that we preserved 

all of the veteran’s due process rights while ensuring that they did not lose any of 

the claim’s effective date, which we were able to do successfully. 

When we started the design process, we had to suspend dealing with the current 

caseload of appeals while we designed the new model and treated the two sets of 

cases as independent of each other. Now that we have designed a more streamlined 

and effective model for future claims, all stakeholders will still need to determine 

how to deal with the existing inventory of appealed claims. 

The design of the proposed appeals process allows for multiple options for claimants, as well as options for additional claim development, the option to have the decision reviewed by another adjudicator (difference of opinion) and the chance to take 

your case straight to the board to have a law judge review the decision and make 

a ruling on your claim. 

The proposed bill provides veterans additional options while maintaining the effective dates of original claims. Veterans can elect to have an original decision reviewed at the ROs through a Difference of Opinion Review (DOOR) which is similar 

to the function of what the Decision Review Officers (DROs) do now. A DOOR provides an opportunity for a claimant to discuss concerns regarding the original adjudication of a particular issue, or the entire claim, prior to appealing to BVA. Additionally, the administrative actions remove the need for a Notice of Disagreement 

(NOD), a process that currently takes 403.6 days, according to the April 25, 2016, 

Monday Morning Workload Report. 

Beyond improvements in administrative functions, the proposed bill will enable 

claimants to select a process other than the standard multi-year backlog if they 

want to have an appeal addressed more expediently, and if they believe they have 

already provided all relevant and supporting evidence. Similar to the Fully Developed Claims (FDC) program, veterans will be able to elect to have their appeals reviewed more expeditiously by attesting that all information is included within the 

claim, VA records, or submitted with VA Form 9 indicating the intent to have their 

claims immediately forwarded to BVA for review. 

Veterans indicating that they may need additional evidence or time, could elect 

to have their claim reviewed in the current BVA format allowing additional evidence 

to be entered into the record. For veterans requiring additional evidence, such as 

lay statements from friends and families or a private medical examination rebutting 

VA medical examinations, this is a viable alternative to allow the time and opportunity to provide further development necessary to substantiate the claim for benefits. 

Throughout this entire process, veterans will be able to maintain their effective 

date of the original claim. Recognizing that an increased burden is being placed 

upon veterans, VA will permit veterans to maintain their effective dates, even if 

BVA denies the claim. If an appeal is denied by BVA, the veteran can submit new 

and minimally relevant evidence to reopen the claim at the RO while holding that 

effective date that may have been established long before the second filing for 

benefit. 

Just as we did when we worked in partnership with VA to roll out the Fully Developed Claims process, The American Legion is willing to put in the necessary 

work to ensure this program is successful. We recognize the increased burden it can 

place on veterans; we also recognize that our approximately 3,000 accredited representatives have the tools to ensure success for the veterans and claimants we represent. Throughout the year, we will continue to work with our representatives, our 

members, and most importantly, our veterans to understand the changes in law, 

and how they will be able to succeed with these changes. 

Reforming a process as complex as the disability claims system is not simple, and 

not every aspect of appeals reform is able to be legislated, some parts are more 

nuanced and require the attention of all stakeholders. The American Legion is committed to providing constant feedback as we move forward with appeals modernization. We believe that the architects of this proposal have acted in good faith, and 

we support their efforts to modernize the appeals process for the good of veterans. 

The American Legion supports the discussion draft. 

DISCUSSION DRAFT: CONSTRUCTION REFORM ACT OF 2016

To make certain improvements in the administration of Department medical facility 

construction projects. 

The Construction Reform Act of 2016 proposes a new subsection to 38 U.S.C. 

§ 8103 by requiring the Secretary to enter into an agreement with an appropriate 

72 

12 American Legion Resolution No. 24: (May 2015): Department of Veterans Affairs Construction Programs 13 American Legion Resolution No. 18: (Aug 2014): Department of Veterans Affairs Disability 

Compensation 

non-Department entity for the purpose of providing full project management services for any super construction project. Super construction projects are defined as 

‘‘a project for the construction, alteration, or acquisition of a medical facility involving a total expenditure of more than $100 million.’’ Under the provisions of this section, the Secretary may not obligate or expend funds for advance planning or design 

for any super construction project, until the date that is 60 days after the date on 

which the Secretary submits to the Committees on Veterans’ Affairs and the Committees on Appropriations of the Senate and House of Representatives notice of such 

obligation or expenditure. 

The American Legion is a strong supporter of legislation and oversight to improve 

future VA construction programs. The American Legion also urges VA to consider 

all available options, both within the agency and externally, including options such 

as the Army Corps of Engineers, to ensure major construction programs are completed on time and within budget.12

The American Legion supports the discussion draft. 

DISCUSSION DRAFT: 

To modify requirements under which the Department is required to provide compensation and pension examinations to veterans seeking disability benefits. 

The current disability compensation program has proven to be a fair and equitable manner in which to indemnify veterans suffering disabilities that have been 

incurred or aggravated from their military service. The American Legion is totally 

supportive of every benefit that is currently provided to veterans for their contributions to their country. 

This proposal seeks to amend 38 U.S.C. § 5103A(d) to clarify the evidentiary 

threshold for which VA, under its duty to assist obligation, is required to request 

a medical examination for compensation claims. This amendment would clarify section 5103A(d)(2) to require, prior to providing a medical examination, the existence 

of objective evidence establishing that the veteran experienced an event, injury, or 

disease during military service. VA would still consider lay evidence as sufficient to 

show a current disability or persistent symptoms of a disability. However, except in 

special circumstances, objective evidence such as medical records, service records, 

accident reports, could also be of record to trigger a medical examination. The American Legion believes a veteran should be afforded a compensation and pension 

(C&P) examination whenever new evidence is submitted. 

This discussion draft will result in making it more difficult for a claimant to receive a VA examination. The American Legion opposes any administrative or legislative proposal to dilute or eliminate any provision of the disability compensation 

program.13

The American Legion opposes the discussion draft. 

DISCUSSION DRAFT: VETERANS MOBILITY SAFETY ACT OF 2016: 

A bill to amend title 38, United States Code, to make certain improvements in the 

provision of automobiles and adaptive equipment by the Department of Veterans 

Affairs. 

This discussion draft requires a vendor of automotive adaptive equipment to be 

certified by a qualified organization or the manufacturer of the adaptive equipment. 

Through the VA Automotive Adaptive Equipment (AAE) program, VA provides 

physically challenged persons the necessary equipment to safely operate their vehicle on the country’s roadways. Through the Department of Rehabilitation and Prosthetic Services VA provides the necessary equipment such as: platform wheelchair 

lifts, under vehicle lifts; power door openers; lowered floors/raised roofs; raised 

doors; hand controls; left foot gas pedals; reduced effort and zero effort steering and 

braking; and digital driving systems. 

Based on our research, The American Legion has not found any issues with veterans obtaining automobile adaptive equipment or automobile grants and does not 

feel that there is a need at this time for additional policy. The American Legion is 

continuing to research this issue and should information change would consider 

working to develop a resolution with our membership to provide specific policy guidance if there was need for improvement. 

The American Legion does not have a position on the discussion draft at 

this time. 

73 

14 American Legion Resolution No. 23: (May 2016): Support for Veteran Quality of Life 

DISCUSSION DRAFT

To expand eligibility for hospital care and medical services under section 101 of the 

Veterans Access, Choice, and Accountability Act of 2014 to include veterans in 

receipt of health services under the pilot program of the Department of Veterans 

Affairs for rural veterans. 

One in every three veterans treated by the VA lives in rural communities. Rural 

and highly rural veterans have been underserved due to a lack of access to health 

care which can be attributed to several factors to include lack of health care insurance, little awareness of VA benefits and services, greater travel distances, and an 

inadequate number of primary and specialty health care providers that work in 

rural communities. 

This discussion draft would grandfather eligible veterans into the Project Access 

Received Closer to Home (Project ARCH) program by setting up special provider 

agreements with current Project ARCH providers to guarantee continuity of care for 

veterans who live in rural communities. 

The American Legion agrees that veterans should be grandfathered into the 

Project ARCH Program however, the bill as written, would not only grandfather current and past users of Project ARCH, but also includes veterans who have relocated 

out of the Project ARCH pilot program catchment area and into regions of the country that are not rural or highly rural. In order to cure the unintended consequences 

of the bill as written. The American Legion asks that the language of Section 

1(a)(3)(E) be amended to read ‘‘has received health services under the pilot program 

under section 403 of the Veterans’ Mental Health and Other Care Improvements 

Act of 2008 (Public Law 110–387; 38 U.S.C. 1703 note) and resides in a location described in section (b)(2) of such section. 

The American Legion urges Congress and the VA to enact legislation and programs within VA that will enhance, promote, restore, or preserve benefits for veterans and their dependents, to include timely access to quality VA health care.14

The American Legion would support this discussion draft if amended according to our remarks above. 

CONCLUSION

As always, The American Legion thanks this Committee for the opportunity to explain the position of the over 2 million veteran members of this organization. For 

additional information regarding this testimony, please contact Mr. Warren J. Goldstein at The American Legion’s Legislative Division. 

Chairman ISAKSON. Thank you, Mr. Celli. 

Mr. Atizado. 

STATEMENT OF ADRIAN M. ATIZADO, DEPUTY NATIONAL 

LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS 

Mr. ATIZADO. Chairman Isakson, Ranking Member Blumenthal, 

Members of the Committee, I want to thank you for inviting DAV 

to testify at this hearing to present our views on behalf of our 1.3 

million wartime service-disabled veterans. 

You know, DAV supports many of the bills on today’s agenda, 

which follow our organization’s single purpose, which is to empower 

veterans to lead high-quality lives with respect and dignity. So, for 

example, DAV supports S. 2520, the Newborn Care Improvement 

Act, and S. 2487, the Female Veteran Suicide Prevention Act. Both 

these bills address key recommendations in DAV’s 2014 report on 

women veterans called ‘‘The Long Journey Home.’’ 

Gender-specific care is an issue that will remain at the forefront 

of DAV in our advocacy work, and we applaud Senators Klobuchar, 

Tillis, Boxer, Blumenthal, as well as this Committee and other supporters of these bills for their strong commitment to hard work to 

meet the needs of women veterans. 

74 

DAV also supports S. 2888, a bill that would expand the list of 

conditions for which veterans may be suffering from due to their 

exposure to contaminated waters at Camp Lejeune. We do issue a 

concern on this bill, Mr. Chairman. Our concern is that the burden 

of care for affected non-veterans rests with VA, the family members. The costs of care in other cases of significant environmental 

exposures are the assigned responsibility of the Administrator of 

the Agency of Toxic Substances and Disease Registry under the 

Comprehensive Environment Response and Compensation Liability 

Act of 1980, also known as the Superfund Act. We do ask this Committee consider supplementing VA’s appropriations and funding for 

this program by requiring the Administrator and possibly the Navy 

or the Marine Corps to reimburse VA for medical services funds expended for this program. 

DAV also supports Sections 4, 5, and 6 of S. 2896, the Care Veterans Deserve Act of 2016. Section 4 would expand veterans’ access 

to care while preserving the quality of such care through telemedicine, which we believe is currently and unnecessarily constrained 

for VA. 

Section 5 would expand the operating hours of VA pharmacies. 

We believe it should be commensurate with extended operating 

hours of outpatient clinics. 

Section 6 would reduce the variability of the available best practices across the VA health care system. I know this is near and 

dear to Deputy Gibson’s heart as well as Secretary McDonald and 

Under Secretary Shulkin. 

DAV is, however, unable to support Section 2, which would make 

permanent the authority underlying the Choice program. As this 

Committee is aware and as my colleagues have spoken about, there 

are numerous issues regarding the Choice program that is inextricably intertwined with existing policy that this measure would 

not address. 

Regarding Section 3, we urge the Committee to clarify the term 

‘‘walk-in clinics,’’ as there are considerable cost and quality of care 

implications at play. 

I would like to now turn to the VA Appeals Modernization Act 

of 2016. Mr. Chairman, the draft appeals modernization legislation 

before the Committee is the result of a truly collaborative relationship among the Veterans Benefits Administration, or VBA, the 

Board of Veterans Appeals, and 11 major stakeholder organizations, including DAV. Under the proposed new appeals framework, 

veterans who disagree with their claims decision would have a new 

set of options at VBA and the Board to seek more favorable outcomes. If they remain unsatisfied with the outcomes from one option, they could continue to pursue one of the other options while 

still preserving their earliest effective date for benefits. 

Overall, we support the draft bill, which could improve the appeals process while protecting due process rights of veterans, although there are still some important issues to be addressed. For 

example, clarity is needed on how the Board will handle new evidence introduced outside the limited opportunities under this bill. 

Will the Board consider such evidence? Will they ignore it? Or will 

they remand it back to VBA for readjudication? 

75 

We are also concerned about how the Board and VBA will address the current appeals backlog and whether adequate resources 

will be requested and provided to meet new staffing, infrastructure, 

and IT requirements to make the new system effective. 

Finally, Mr. Chairman, on the topic of claims process, DAV 

strongly opposes the draft bill that would raise the evidentiary 

threshold for VA to provide compensation and pension examinations. The policy espoused in this draft runs counter to the uniquely pro-claimant nature of VA’s adjudicatory system exemplified by 

VA’s statutory duty to assist. 

This concludes my statement, Mr. Chairman. I would be happy 

to work with you, with this Committee, on those legislation that we 

support and to resolve any issues that we have raised in our testimony. Thank you. 

[The prepared statement of Mr. Atizado follows:] 

PREPARED STATEMENT OF ADRIAN M. ATIZADO, DEPUTY NATIONAL

LEGISLATIVE DIRECTOR, DAV 

Chairman Isakson, Ranking Member Blumenthal, and Members of the Committee: Thank you for inviting DAV (Disabled American Veterans) to testify at this 

legislative hearing, and to present our views on the bills under consideration. As 

you know, DAV is a non-profit veterans service organization comprised of 1.3 million 

wartime service-disabled veterans that is dedicated to a single purpose: empowering 

veterans to lead high-quality lives with respect and dignity. 

S. 2049—TO ESTABLISH IN THE DEPARTMENT OF VETERANS AFFAIRS A CONTINUING MEDICAL EDUCATION PROGRAM FOR NON-DEPARTMENT MEDICAL PROFESSIONALS WHO

TREAT VETERANS AND FAMILY MEMBERS OF VETERANS TO INCREASE KNOWLEDGE

AND RECOGNITION OF MEDICAL CONDITIONS COMMON TO VETERANS AND FAMILY

MEMBERS OF VETERANS

This bill if enacted would establish a web-based Department of Veterans Affairs 

(VA) Continuing Medical Education Program for non-VA medical professionals. This 

program would be intended to provide certain private sector medical professionals 

who treat veterans continuing education credits to learn about and recognize conditions common in veterans and their family members, and would improve outreach 

to veterans and families. 

Under the bill, training would consist of identifying and treating common mental 

and physical conditions of veterans and their family members. As determined by the 

VA Secretary, it would also convey educational information about programs and 

benefits and other matters considered appropriate, available to veterans through 

VA, the Department of Labor, and other Federal and non-Federal agencies. If enacted, the program would be authorized for five years, and would be effective on enactment. 

The bill would require the Secretary to accredit the program in as many state licensing authorities as possible, and from such medical credentialing organizations 

as the Secretary considered appropriate. The curriculum and number of hours of 

credit would be determined by the Secretary. The program would be made available 

at no cost for those participating. 

Under current law, the Committee should be aware that VA does not provide continuing education credits for its own professional workforce, but places the burden 

on the individuals involved to maintain their qualifications and licensure to practice 

in VA by obtaining their own continuing education requirements. Current law provides a discretionary authority for VA to reimburse VA physicians not more than 

$1,000 per year for obtaining continuing education credits, but does not do so for 

other professional disciplines, including those listed in this bill. VA professionals 

would be barred from participating in this program, which raises an equity and fairness question in policy. Also, if thousands or even tens of thousands of private practitioners decided to use the program proposed by this act, it could become the source 

of a significant shift in funding from the direct care provided to veterans within the 

VA, while placing substantial new pressure on VA’s already overburdened information technology system. Finally, setting up this national program could be administratively burdensome and costly for VA, diverting human resources and academic 

76 

activities away from where they are needed now. We ask the Committee to address 

these issues with respect to this bill. 

S. 2487, THE FEMALE VETERANS SUICIDE PREVENTION ACT

If enacted, this measure would amend currently required VA evaluations of its 

mental health and suicide prevention programs by adding a specific focus to include 

the needs of women veterans. Also, the bill would require an independent contractor 

to VA to include in its annual reports to VA the mental health and suicide prevention programs that are most effective and have the highest satisfaction rates among 

women veterans. This bill is in agreement with DAV Resolutions 039 and 040, 

which support program improvements and enhanced resources for VA mental health 

programs, and improvements in medical services for women veterans. The bill is 

also consistent with recommendations from DAV’s 2014 Report, Women Veterans: 

The Long Journey Home. For these reasons DAV is pleased to support enactment 

of this bill. 

S. 2520, THE NEWBORN CARE IMPROVEMENT ACT

This measure would authorize the Secretary to extend from 7 to 14 days of postdelivery care services, covering all care and services that a newborn child of an enrolled veteran would require. The bill also would require a report on the health 

services provided to newborns during the preceding fiscal year, including the number of newborns cared for during the period. DAV has received Resolution No. 104 

from our membership, which calls for support of enhanced medical services and benefits for women veterans. Consequently DAV supports enactment of this measure. 

As a technical matter, the bill’s requirement of VA’s submission to Congress of 

a new annual report about the care of newborns not later than 31 days after the 

end of each fiscal year would likely be administratively daunting; therefore, DAV 

recommends the Committee consider an amendment to the bill allowing for a more 

reasonable period to permit orderly data collection and internal review by VA. 

S. 2679, THE HELPING VETERANS EXPOSED TO BURN PITS ACT

This bill would mandate VA to establish a center of excellence focused on diagnosis, prevention, treatment, rehabilitation, and research of health conditions related to veterans’ prior exposures to burn pits and other environmental exposures 

while they served in Iraq and Afghanistan. The bill would provide criteria and 

standards for selection of this new center, and would specify a number of required 

qualifications, abilities, accomplishments and relationships of the VA facility selected to be so designated. The bill would authorize an appropriation of $30 million 

annually for the initial five years of operation of this center. 

DAV members have approved Resolution No. 112, calling for improvements in 

care and benefits for veterans exposed to environmental hazards in deployment, and 

DAV Resolution 222, calling for Congressional support of a robust VA Medical and 

Prosthetic Research Program. Therefore, DAV supports the intent of this bill. Nevertheless, we recommend the Committee carefully consider the funding level proposed 

in light of the statutory limitations applied to startup funding of other Congressionally mandated VA specialized centers of excellence, such as its Geriatric Research, 

Education and Clinical Centers, and Mental Illness Research, Education and Clinical Centers. DAV would be deeply troubled should funds for this new center be 

taken from the Medical and Prosthetic Research appropriation. Finally, DAV recommends the Committee consider an amendment to the bill to provide a Congressional reporting requirement to evaluate the center’s operations and effectiveness, 

given the level of funding this bill would make available to the center, and considering the importance of its mission to veterans who have experienced health consequences from exposure to environmental hazards while serving. 

S. 2883, THE APPROPRIATE CARE FOR DISABLED VETERANS ACT OF 2016

This bipartisan measure would be intended to ensure VA maintains adequate capacity to deliver the best, comprehensive specialty care services to the most vulnerable veteran populations served by VA. It would reinstate a reporting requirement 

that expired in 2008 for the VA to report on its capacity to provide specialized services in areas such as blindness, burns, amputation, Traumatic Brain Injury, spinal 

cord injury and dysfunction, mental illness, and long-term services and supports. 

Since 2008, there have been continuous reports of bed closures, staffing shortages, 

and delayed and denied access to these specialized care units. This bill would ensure 

that VA is held accountable for its mandated responsibility to care for veterans with 

the most severe disabilities, including catastrophic injuries and diseases. 

77 

DAV supports this legislation based on Resolution No. 126, which calls for the 

preservation of VA’s mission and role as a provider of specialized services to veterans ill and injured due to military service. 

S. 2888, THE JANEY ENSMINGER ACT OF 2016

This bill if enacted would require the Secretary, acting through the Administrator 

of the Agency for Toxic Substances and Disease Registry, under the Public Health 

Service, to periodically review the scientific literature relevant to the relationship 

between employment or residence of individuals at Camp Lejeune, North Carolina, 

for no fewer than 30 days during the period beginning on August 1, 1953 and ending 

on December 21, 1987, and to list the specific illnesses or conditions incurred by 

these individuals. 

The bill would require the Administrator to determine each illness or condition 

for which evidence exists that exposure could be the cause of that illness or condition. If found, the Administrator would be required to categorize the connection of 

exposure to specific illness or condition as ‘‘sufficient,’’ ‘‘modest,’’ ‘‘limited,’’ or ‘‘no 

more than limited.’’ When completed, a listing of all such illnesses and conditions 

would be published in the Federal Register, accompanied by bibliographic citations, 

and posted on the Department of Health and Human Services’ website. The bill 

would require the listing to be periodically updated as new conditions or illnesses 

were shown to be connected to exposure. 

For individuals whose illness or condition was determined to be ‘‘sufficient or 

modest’’ in its connection to prior exposure to a toxic substance as documented by 

the listing mandated by this bill, VA would be required to provide the individual 

hospital care and medical services to treat the illness or condition. 

The bill would also authorize continuation of care by VA to any veteran or other 

person under VA care at the time of enactment who lived, worked, or served at 

Camp Lejeune during the prescribed period, notwithstanding the absence of evidence the illness or condition being treated was connected to exposure under criteria 

otherwise required by this bill. 

The bill would require a transfer of $4 million over a period of two fiscal years 

from VA’s Medical Support and Compliance appropriation to the VA’s Chief Business Office and Financial Services Center for the purpose of continuing their information technology work associated with the Camp Lejeune Family Member 

Program. 

The delegates to our most recent National Convention adopted two resolutions related to this bill. Resolution No. 112 urges congressional oversight and Federal vigilance to provide for research, health care and improved surveillance of disabling 

conditions in veterans resulting from military toxic and environmental hazards exposure. Also, Resolution No. 114 calls for eliminating VA health care out-of-pocket 

costs for service-connected disabled veterans. Accordingly, we support the provision 

in this measure that expands the list of conditions for which veterans may be suffering from due to their exposure to contaminated waters at Camp Lejeune and that 

these veterans will not be charged a copayment for treatment associated. 

However, we remain concerned that the burden of care for affected non-veterans 

rests with VA through its Chief Business Office Purchased Care as an expanded responsibility in contravention of the requirement that in other cases of significant environmental toxic exposures, the costs of care are the assigned responsibility of the 

Administrator of the Agency for Toxic Substances and Disease Registry, under the 

Comprehensive Environment Response, Compensation, and Liability Act of 1980, 

also known as the ‘‘Superfund Act.’’ As the Committee considers this bill, we ask 

that it also consider requiring the Administrator, the Navy or the Marine Corps to 

reimburse VA’s Medical Services appropriation the cost to carry out the bill’s purposes in treating those who were harmed by this environmental exposure at Camp 

Lejeune. 

S. 2896, THE CARE VETERANS DESERVE ACT OF 2016

Section 2 of this measure would make permanent the Veterans Choice Program, 

established by Section 101 of the Veterans Access, Choice, and Accountability Act 

of 2014 (VACAA), Public Law 113–146, and would make all veterans enrolled for 

VA health care eligible for the Veterans Choice Program. 

When the Senate passed VACAA, DAV commended this Committee for quickly 

passing bipartisan legislation in response to the crisis in accessing VA health care. 

DAV committed itself to continue working with the Senate, House and VA to help 

fine tune, strengthen and coalesce around effective administrative, regulatory and 

legislative changes needed to address VA’s capacity and access problems. 

78 

1 ‘‘Retail Clinic Visits For Low-Acuity Conditions Increase Utilization And Spending,’’ 

Ashwood, Gaynor, et al. March 24, 2016, Accessible at: http://content.healthaffairs.org/content/ 

35/3/449 2http://www.aafp.org/about/policies/all/retail-clinics.html 

3http://pediatrics.aappublications.org/content/133/3/e794 

4https://www.acponline.org/acp-newsroom/retail-clinics-best-used-as-backup-to-a-patients-primary-care-physician 5https://www.ama-assn.org/ssl3/ecomm/PolicyFinderForm.pl?site=www.ama-assn.org&uri=/resources/html/PolicyFinder/policyfiles/DIR/D-160.986.HTM 

We believed then as we do now in strong care coordination provisions to ensure 

the best health outcomes for all veterans receiving care paid for by VA, regardless 

of the provider of that care. Equally important then as now, when expanding VA’s 

mandate to provide care through non-VA providers, Congress must ensure that it 

appropriates all the additional funding needed without taking away funding from 

VA’s medical centers and clinics that are already at or over capacity. 

Our shared goal must be to ensure that VA programs that purchase care in the 

community function as seamlessly and efficiently together with a robust, safe, efficient, high-quality VA health system that provides the best health outcomes. To accomplish this goal, Congress must address the misalignment among resources, demand and authorities that allow VA to provide hospital care and medical services. 

Because Section 2 only addresses demand by expanding it into the private sector, 

we are unable to offer our support. 

DAV Resolution No. 105 opposes any legislative proposal that would have the effect of privatizing VA health care and diminishing the VA health care system. In 

addition, DAV Resolution No. 107 calls on Congress to provide necessary authorities, sufficient resources and staff to reduce waiting times so ill and injured veterans 

can realize timely access to all medically necessary services from the VA health care 

system. 

Section 3 would require VA to contract with a national chain of walk-in clinics 

to provide hospital care and medical services to veterans enrolled in VA health care. 

Information on the care and services provided would be automatically transmitted 

to VA by such clinics, and no copayment or prior authorization would be required 

for care veterans would receive. 

Notably, the measure does not define a walk-in clinic. If a walk-in clinic were simply a health care provider that allows a patient without an appointment to be seen 

by a provider, this could be further defined as a retail clinic (such as MinuteClinics), 

an urgent care clinic, or even a freestanding or hospital emergency department 

(ED). When considering this measure, we recommend the Committee clarify the 

term due to considerable cost implications to taxpayers and quality of care implications for veterans who would seek these services. 

A March 2016 study published in Health Affairs examined insurance claims data 

for three million patients from 2010 to 2012 who were treated for certain simple, 

acute medical problems. Despite the lower per-visit cost of a retail clinic instead of 

an ED or physician’s office, the researchers found that overall spending for the retail clinic cohort increased.1 The increased spending from higher use of services outweighed the savings that resulted when patients went to less expensive retail clinics 

instead of a physician’s office or an ED. 

Moreover, the RAND Corporation found in 2010 that retail clinics were less likely 

to be located in medically underserved areas, but were mostly quite urban. We recommend the Committee consider the appropriateness of the provision prohibiting 

VA from requiring the expansion of walk-in clinic locations, which would limit veterans’ access to care. 

In reviewing the merits of this bill, in addition to its cost, we urge the Committee 

consider the formal positions taken on retail clinics of the American Academy of 

Family Physicians,2 American Academy of Pediatrics,3 American College of Physicians, American Academy of Family Practitioners,4 and the American Medical Association. 5 Three general concerns emerge: (1) quality and safety of care, (2) impact 

on coordination and continuity of care; and (3) scope, oversight, and interaction with 

traditional primary care providers. 

However, if the walk-in clinics referred to by this measure are urgent care clinics, 

DAV supports the intent of the provision and urges the Committee make urgent 

care part of VA’s medical benefits package. Urgent care fills the gap between emergency care and regular appointment-based outpatient care, by enabling immediate 

access. Developing a nationwide system of urgent care at existing VA clinics and 

affording veterans the opportunity to receive urgent care from smaller urgent care 

clinics around the country would alleviate much of the pressure on outpatient 

clinics. 

79 

As mentioned above, we recommend the Committee consider the appropriateness 

of the provision explicitly prohibiting VA from requiring the expansion of urgent 

clinic locations, which would limit veterans’ access to care. VA should be afforded 

the opportunity to tailor access to this type of care that best meets veterans’ needs 

and enhancing the VA health care system. 

DAV Resolution No. 114 calls for legislation to eliminate or reduce VA health care 

out-of-pocket costs for service-connected disabled veterans; thus we support the provision that would not require veterans to pay a copayment for services received 

under Section 3. However, DAV’s primary concern with Section 3 is the proposed 

policy itself, which could ultimately lead to fragmentation of veterans’ health care 

unless it is coordinated with VA primary care providers. Similar to our position on 

section 2 above, DAV cannot support this proposal. 

Section 4 would enable a health care professional of the VA, including a contract 

provider, who is authorized to provide health care by or through VA, and who is 

licensed, registered, or certified in a state to practice his or her profession at any 

location in any state, regardless of where the professional or veteran is located, to 

treat a veteran through telemedicine. If enacted the bill would permit telemedicine 

treatment regardless of whether the professional or the patient were physically located in a federally owned facility. 

This section would also require VA to report to Congress one year following its 

implementation on a variety of aspects of VA’s telemedicine program, including patient and provider satisfaction, access, productivity, waiting times and other information related to appointments made and completed through telemedicine. 

Delegates to our most recent DAV National Convention approved Resolution No. 

126. Among other priorities, this resolution calls on VA and Congress to establish 

and sustain effective telemedicine programs as an aid to veterans’ access to VA 

health care, particularly in the case of rural and remote populations. Our delegates 

also approved Resolution No. 226, fully supporting the right of rural veterans to be 

served by VA. Section 4 of this measure is consistent with these resolutions and 

DAV policy; therefore, DAV strongly supports this section and appreciates the sponsor’s intention to promote the use of telemedicine in the care and treatment of 

veterans. 

S. 2919, THE STATE OUTREACH FOR LOCAL VETERANS EMPLOYMENT (SOLVE) ACT OF 2016

This measure seeks to boost proficiency and controls in the pursuit of increasing 

appropriate and sustainable employment opportunities for our Nation’s veterans. 

The bill would increase individual states’ influence and flexibility to maximize existing Federal Department of Labor (DOL) veterans’ employment grants to support the 

work of Disabled Veterans’ Outreach Program Specialists (DVOPS) and Local Veterans’ Employment Representatives (LVERS) to provide greater assistance to veterans seeking employment services. 

Specifically, section 3 of the bill would allow state Governors to select the particular state agency, such as a state veterans’ affairs agency, rather than a state’s 

department of labor exclusively, to administer these programs. It encourages states 

to co-locate DVOPS and LVERS at one or more of the existing American Job Centers for efficient synchronization. 

The bill encourages each state to tailor their annual plan to meet the employment 

and training needs of veterans in their state. As part of a State Governors annual 

plan, they would submit proposals for additional individual barriers to employment 

they view as significant enough for DVOP and LVER access. This would allow additional categories of veterans to receive services. For example, an individual barrier 

could be proposed in the case of veterans suffering from PTSD who have difficulty 

negotiating numerous bridges around their locality to obtain employment services, 

VA health care and job interviews. Administering employment and VA health care 

services to the increased number of geriatric veterans in Connecticut is a challenge. 

The measure also directs DOL to only disapprove certain parts of state plans, 

rather than rejecting plans in their entirety. In the case where certain sections of 

a plan receive DOL approval, it directs DOL to submit an explanation to the state 

for the rejected section. 

DAV has no resolution and no position on the specific issue this measure seeks 

to address. However, DAV Resolution No. 134 expresses a continuing concern our 

organization has regarding the diversion of DVOPS/LVERs from their prime mission 

to assist veterans with their employment and training needs. We are pleased the 

sponsor is working with us to ensure this measure would avoid or otherwise protect 

against such occurrences. 

Moreover, we are aware DOL is executing a number of initiatives that may be 

adversely impacted by enactment of the bill as currently written. We urge the sponVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00083 Fmt 6633 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
80 

sor, this Committee and DOL to work together to ensure the final outcome will enhance state programs to better assist veterans with their employment and training 

needs. 

Ensuring that our Nation’s ill and injured wartime veterans receive proficient opportunities for substantial gainful employment is DAV’s concern. Wartime veterans 

who have sacrificed as a result of their military service need competent guidance 

and services at all levels to achieve maximum employability 

DRAFT BILL, TO REFORM THE RIGHTS AND PROCESSES RELATING TO APPEALS OF DECISIONS REGARDING CLAIMS FOR BENEFITS UNDER THE LAWS ADMINISTERED BY THE

SECRETARY OF VETERANS AFFAIRS

Mr. Chairman, this draft bill comes as a result of a collaborative effort among 

VBA, the Board and 11 major stakeholder organizations—including DAV—that assist veterans with their appeals. For the past three months, this workgroup has 

been meeting intensively with the goal of developing a new structure and system 

for appealing claims decisions. However, this recent effort actually builds on that 

of a very similar workgroup involving VSOs, VBA, and the Board that began meeting over two years ago. That workgroup spent over six months examining the cause 

of and possible solutions to the rising backlog of appeals. At that time, the claims 

backlog was finally beginning to drop after years of transformation efforts. 

The signature achievement of that first VSO-VA workgroup was the development 

of and widespread support for the ‘‘fully developed appeals’’ (FDA) proposal. Under 

the FDA proposal, veterans could have their appeals routed directly to the Board 

by agreeing to eliminate several processing steps at the regional office level, forego 

hearings, and take greater responsibility for developing evidence necessary to properly consider their appeals. The FDA was modeled on a similar claims initiative— 

the ‘‘fully developed claims’’ (FDC) program—which has contributed to dramatic improvement in claims processing times at VBA. 

As a result of that VSO-VA collaboration, legislation was drafted and introduced 

in both the House and Senate. Earlier this year, the House approved a broad benefits bill (H.R. 677) which included the FDA program. The Senate legislation introduced by Senators Sullivan, Casey, Heller and Tester (S. 2473) was approved by this 

Committee earlier this month as part of the Veterans First Act omnibus bill. We 

want to thank everyone involved for your efforts in advancing FDA legislation. 

As you are aware, the FDA’s premise of eliminating certain appeals processing 

steps at VBA while providing a quicker route for appeals to the Board has essentially been incorporated into this comprehensive appeals reform bill. Though not as 

far-reaching as this proposed legislation, the FDA pilot program could reduce the 

time some veterans wait for their appeals decisions by up to 1,000 days, while lowering the workload on both VBA and the Board. 

Building on the work of the earlier VSO-VA workgroup, and particularly its FDA 

proposal, VA convened the latest workgroup in March of this year to examine 

whether agreement could be reached on more comprehensive and systemic change. 

Over a very compressed but intensive couple of months, that included a number of 

closed-door, all-day sessions, the workgroup was able to reach general consensus on 

principles, provisions and ultimately the draft legislation before us. DAV and most 

of the other stakeholders support moving forward with this draft appeals reform legislation, notwithstanding some remaining issues yet to be addressed. 

We believe that if all stakeholders continue working together—in a good faith 

partnership with full transparency—we have a good chance of resolving the remaining issues and achieving an historic reform this year. However, as we have long 

said, the most important principle for reforming the claims process was getting the 

decision right the first time; we must also ensure that this appeals reform legislation is done right the first time. Further changes to any part of this draft legislation 

could affect our ultimate support for the bill; therefore, we urge this Committee and 

VA to continue working with DAV and other stakeholders in a transparent and collaborative manner. 

With that in mind, while the latest workgroup was initially focused on ways to 

improve the Board’s ability and capacity to process appeals, from the outset we realized that appeal reforms could not be fully successful unless we simultaneously 

looked at improving the front end of the process, beginning with claims’ decisions. 

One of the issues that development of the FDA proposal exposed was the importance 

of strengthening decision notification letters provided by VBA in order to improve 

decisions about appeals options. A clear and complete explanation of why a claim 

was denied is key to veterans making sound choices about if and how to appeal an 

adverse decision. Therefore, a fundamental feature of the new appeals process must 

81 

also ensure that claims’ decision notification letters are adequate to properly inform 

the veteran. 

The workgroup agreed that decision notification letters must be clear, easy to understand and easy to navigate. The notice letter must convey not only VA’s rationale 

for reaching its determination, but also the options available to claimants after receipt of the decision. The draft legislation would require that in addition to an explanation for how the veteran can have the decision reviewed or appealed, all decision notification letters must contain the following information to help them in determining whether, when, where and how to appeal an adverse decision: 

(1) A list of the issues adjudicated; 

(2) A summary of the evidence considered; 

(3) A summary of applicable laws and regulations; 

(4) Identification of findings favorable to the claimant; 

(5) Identification of elements that were not satisfied leading to the denial; 

(6) An explanation of how to obtain or access evidence used in making the decision; and 

(7) If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation for the benefit sought. 

DAV recommends that in order to better inform veterans about this new notification provision and the redesigned claims and appeals process being proposed, the 

legislation should include a requirement that VA create an online tutorial and utilize other web or social media tools to enhance veterans’ understanding of how 

claims decisions are made and how to choose the best options available in the redesigned appeals system. 

THE CURRENT APPEALS SYSTEM

In order to evaluate the new appeals framework in the draft legislation, it must 

be compared to the existing system. Currently, if a veteran is not satisfied with 

their claims decision, they may appeal the decision by completing a Notice of Disagreement (NOD) form which provides them two options: a de novo review or a traditional appeal to the Board of Veterans Appeals. The de novo option takes place 

locally within the VARO, and is performed by a Decision Review Officer. The de 

novo process allows the introduction of new evidence and a hearing, requires VBA 

to fulfill its ‘‘duty to assist’’ throughout the process, and provides a full de novo review of the claim. If benefits are granted in the de novo process, the effective date 

for the award would be the date of the claim, if the facts found support entitlement 

from that effective date. 

The second NOD option is to formally appeal to the Board. When a veteran chooses this option, the VARO must prepare a Statement of Case (SOC) for the veteran 

and then the veteran must complete the VA Form 9 specifying the issues they are 

appealing and the reasons supporting their appeal. If new evidence is submitted 

after the NOD requiring development, a Supplemental Statement of Case (SSOC) 

may also be issued. A veteran who elected a de novo review but who was not awarded the full benefits sought may also continue their appeal to the Board as described 

above. As part of the Board process, appellants have the opportunity to request a 

hearing and introduce new evidence at any time. Throughout its consideration of an 

appeal, the Board is required to comply with VA’s ‘‘duty to assist’’ and performs a 

de novo review of all the evidence submitted, before and after the date of the NOD 

filing. 

If the Board does not grant the full benefit sought, the veteran’s primary recourse 

would then be to appeal to the Court of Appeals for Veterans Claims (‘‘Court’’), 

which can take many more years before final disposition. Alternatively, the veteran 

at any time could file a new claim with new evidence, which could be processed 

under the FDC program in less than 125 days, however the effective date for this 

claim would be the new filing date, potentially requiring the veteran to forfeit 

months or years of entitlement to earned benefits. 

In many cases the Board will remand the claim back to VBA for either procedural 

errors (i.e. ‘‘duty to assist’’ errors) or for the development of new or existing evidence 

needed to make a final determination. More than half of all pending appeals will 

be remanded at least once under the current system, lengthening the time veterans 

wait for final resolution of their appeals and contributing to the growing backlog of 

pending appeals. 

The current system allows veterans unlimited opportunities to submit new evidence to support their appeals, requires that VA fulfill its ‘‘duty to assist’’ to veterans by securing and developing all potential evidence but requires that the formal 

appeal be maintained in order to protect the effective date of the original claim. 

While these features help ensure that veterans rights are protected, they have 

82 

evolved into a system that incentivizes many veterans to file and maintain formal 

appeals because there is no other option available to protect their earliest effective 

dates, which could affect thousands of dollars in earned benefits. 

A NEW FRAMEWORK FOR VETERANS’ CLAIMS AND APPEALS

Understanding the benefits and weaknesses of the current system, the workgroup 

developed a new framework that could protect the due process rights of veterans 

while creating multiple options to receive favorable decisions more quickly. A critical 

factor was developing a system that would allow veterans to protect their earliest 

effective dates while allowing them opportunities to introduce new evidence, without 

having to be locked into the long and arduous formal appeals process at the Board. 

In general, the framework embodied in the draft legislation would have three 

main options for veterans who disagree with their claims decision and want to challenge VBA’s determination. Veterans must elect one of these three options within 

one year of the claims decision. 

First, there will be an option for readjudication and supplemental claims when 

there is new evidence submitted or a hearing requested. Second, there will be an 

option for a local, higher-level review of the original claims decision based on the 

same evidence at the time of the decision. Third, there will be an option to pursue 

a formal appeal to the Board—with or without new evidence or a hearing. 

The central dynamic of this new system is that a veteran who receives an unfavorable decision from one of these three main options may then pursue one of the 

other two appeals options. As long as the veteran continuously pursues a new appeals option within one year of the last decision, they would be able to preserve 

their earliest effective date, if the facts so warrant. Each of these options, or ‘‘lanes’’ 

as some call them, have different advantages that allow veterans to elect what they 

and their representatives believe will provide the quickest and most accurate decision on their appeal. 

For the first option—readjudication and supplemental claims—veterans would be 

able to request a hearing and submit new evidence that would be considered in the 

first instance at the VARO. VA’s full ‘‘duty to assist’’ would apply during readjudication, to include development of both public and private evidence. The readjudication 

would be a de novo review of all the evidence submitted both prior to and subsequent to the claims decisions until the readjudication decision was issued. If the veteran was not satisfied with the new decision, they could then elect one of the other 

two options to continue pursuing their appeal. 

For the second option—the higher-level review—the veteran could choose to have 

the review done at the same local VARO that made the claim decision, or at another 

VARO, which would be facilitated by VBA’s electronic claims files and the National 

Work Queue’s ability to instantly distribute work to any VARO. The veteran would 

not have the option to introduce any new evidence nor have a hearing with the 

higher-level reviewer, although VBA has indicated it will allow veterans’ representatives to have informal conferences with the reviewer in order for them to point out 

errors of fact or law. The review and decision would be de novo and a simple difference of opinion by the higher-level reviewer would be enough to overturn the 

original decision. If the veteran was not satisfied with the new decision, they could 

then elect one of the other two options to pursue resolution of their issue. 

For this higher-level review, the duty to assist would not apply since it is limited 

to the evidence of record used to make the original claims decision. If a duty to assist error is discovered that occurred prior to the original decision, unless the claim 

can be granted in full, the claim would be sent back to the VARO to correct any 

errors and readjudicate the claim. If the veteran was not satisfied with that new 

decision, they would still have all three options to resolve their issue. 

Mr. Chairman, one additional change that we have suggested and VA has agreed 

to include, but that is not in this Senate discussion draft, would be to add a new 

section to section 5104B, title 38, United States Code, to clarify that all higher-level 

reviews would be done as de novo reviews, without the veteran having to affirmatively elect a de novo review option. We would like to highlight for the Committee 

the companion bill introduced in the House, H.R. 5083, contains this revision and 

we strongly recommend this provision be maintained in any legislation moving 

forward. 

These first two options take place inside VAROs and cover much of the work that 

is done in the current de novo process, although it would be separated into two different lanes: one with and one without new evidence and hearings. VA has also proposed eliminating the position of Decision Review Officers and reassigning these 

personnel to functions that are appropriate to their level of experience and expertise, such as higher-level reviewers. 

83 

For the third option—Board review—there would be two separate dockets for veterans to choose from: an ‘‘expedited review’’ that allows no hearings and no new evidence to be introduced; and a more traditional appeal that allows both new evidence 

and hearings. Both of these Board lanes would have no duty to assist obligation to 

develop any evidence submitted. For both of these dockets, the appeal would be 

routed directly to the Board and there would no longer be SOCs, SSOCs or Form 

9s completed by VBA or the veteran. 

The workgroup established a goal of having ‘‘expedited review’’ appeals resolved 

within one year, but there was no similar goal for the more traditional appeals docket. While eliminating introduction of evidence and hearings would naturally make 

the Board’s review quicker, it is important that sufficient resources be allocated to 

the traditional appeal lane at the Board to ensure a sense of equity between the 

two dockets. We would recommend that language be added to this bill to ensure the 

Board does not inequitably allocate resources to the ‘‘expedited review’’ lane. 

For the traditional Board appeal lane, veterans could choose either a video conference hearing or an in-person hearing at the Board’s Washington, DC offices; 

there would no longer be travel hearing options offered to veterans. New evidence 

would be allowed but limited to specific timeframes: if a hearing is elected, new evidence could be submitted at the hearing or for 90 days following the hearing; if no 

hearing is elected, new evidence could be submitted with the filing of the NOD or 

for 90 days thereafter. If the veteran was not satisfied with the Board’s decision, 

they could elect one of the other two VBA lane options, and if filed within one year 

of the Board’s decision, they would continue to preserve their earliest effective date. 

The new framework would impose no limits on the number of times a veteran could 

choose one of these three options, and as long as they properly elected a new one 

within a year of the prior decision, they would continue to protect their earliest effective date. 

If the Board discovers that a ‘‘duty to assist’’ error was made prior to the original 

claim decision, unless the claim can be granted in full, the Board would remand the 

case back to VBA for them to correct the errors and readjudicate the claim. Again, 

if the veteran was not satisfied with the new VBA claim decision, they could choose 

from one of the three options available to them, and as long as they properly make 

the election within one year of the decision, they would continue to preserve their 

earliest effective date. 

One additional option becomes available after a Board decision: the appellant 

would also have the opportunity to file a Notice of Appeal to the Court of Appeals 

for Veterans Claims (‘‘Court’’) within 120 days of the Board’s decision, which is the 

current practice today. Decisions of the Court would be final. 

The draft legislation would also amend existing statute to change the ‘‘new and 

material evidence’’ standard to a ‘‘new and relevant evidence’’ standard, as it relates 

to readjudication and supplemental claims. Under current law, a claim can only be 

reopened if ‘‘new’’ and ‘‘material’’ evidence is presented, which was designed to prevent unnecessary work reviewing immaterial evidence that would not affect the outcome of a claim. However, in practice this standard has often had the opposite effect, requiring VBA to make a ‘‘new and material’’ determination, which can then 

be appealed to the Board, often requiring a hearing, and adding years of delay before getting to the core issue of whether the evidence would actually change the 

claim decision. 

The draft bill would replace the term ‘‘material’’ with the term ‘‘relevant,’’ and add 

a definition of ‘‘relevant evidence’’ as ‘‘evidence that tends to prove or disprove a 

matter in issue.’’ While we understand the intention of VBA in trying to deter submission of unrelated evidence, we believe that this revised standard would not be 

any more effective in preventing submission of truly unrelated and irrelevant evidence. Instead, creating a new and untested standard could result in additional appeals on procedure before the substance was adjudicated, and then it, too, could be 

appealed. 

For this reason, DAV and others involved in the first appeals workgroup had discussed revising this standard by amending section 5108 of title 38, United States 

Code, to require VBA to review all evidence submitted in order to directly address 

the substance of the issue rather than be required to first clear a procedural hurdle. 

The workgroup considered changing section 5108 to read as follows: 

§ 5108 Evidence presented for disallowed claims 

If evidence is presented with respect to a claim which has been disallowed that adds to or changes the facts as previously found by the Secretary, the Secretary shall develop or adjudicate the claim as appropriate. 

For truly unrelated evidence, the determination that such evidence does not ‘‘add 

to or change the facts’’ underlying the claim decision should not require any more 

84 

time than a determination of whether such evidence is new or material. Thus, we 

recommend the Committee consider incorporating this alternative approach as an 

amendment to this bill. 

The draft bill also includes an amendment to section 5104A to require that any 

finding made during the claims or appeals process that is favorable to the claimant 

would be binding on all subsequent adjudicators within the Department, unless 

clear and convincing evidence is shown to the contrary to rebut such favorable finding. In the new structure in which appeals can move back and forth from the Board 

to VBA, veterans must be reassured that favorable findings cannot be easily overturned by a different adjudicator or reviewer during this process. Thus, we strongly 

support this section. 

Overall the new framework embodied in the draft legislation could provide veterans with multiple options and paths to resolve their issues more quickly, while 

preserving their earliest effective dates to receive their full entitlement to benefits. 

The structure would allow veterans quicker ‘‘closed record’’ reviews at both VBA and 

the Board, but if they become aware that additional evidence was needed to satisfy 

their claim, they would retain the right to next seek introduction of new evidence 

or a hearing at either VBA or the Board. If implemented and administered as envisioned by the workgroup, this new appeals system could be more flexible and responsive to the unique circumstances of each veteran’s claim and appeal, leading to 

better outcomes for many veterans. 

REMAINING ISSUES AND QUESTIONS RELATED TO THE DRAFT APPEALS

REFORM LEGISLATION

Over the past several weeks, DAV and other VSO stakeholders have continued 

to work with the Board and VBA to resolve and clarify a number of issues, further 

improving the proposed new appeals structure. While we believe the current draft 

bill should be moved forward in the legislative process, there are still some critical 

issues that need to be further explored to ensure that there are no unintended negative consequences for veterans. 

One of the most critical questions is how the introduction of new evidence will 

be treated by VBA and the Board, and how ‘‘duty to assist’’ requirements will apply. 

For the higher-level review, no new evidence is allowed; however, there is an informal opportunity for the veteran’s representative to conference with the reviewer to 

point out errors. If during this conference, the representative identifies evidence not 

yet submitted as part of their discussion, how will the higher-level reviewer acknowledge or treat this information? Will they refer the claim back to the readjudication option as a supplemental claim, indicating there is evidence that needs to be 

developed? Will they inform the representative or the veteran directly that if there 

is new evidence that may affect the decision, the veteran should file a supplemental 

claim for readjudication to present that evidence directly or through a hearing? 

Similarly, there are questions that need to be answered about how the Board will 

handle new evidence introduced outside the limited opportunities allowed at and 90 

days after the filing of an NOD or a Board hearing. What happens if a veteran 

elects the Board option with a hearing and submits new evidence to the Board prior 

to the hearing date: will the Board hold the evidence until the hearing and then 

consider it, or will the Board return or ignore the evidence? 

In addition, since there is no ‘‘duty to assist’’ requirement after the NOD filing, 

what if evidence properly submitted indicates that additional evidence exists which 

could affect the decision: will the Board ignore that evidence or inform the veteran 

that there was additional evidence that could have changed the decision but that 

it was not sought nor considered? Will or should the Board remand the appeal back 

to the VBA for readjudication to allow for full development of all evidence? In order 

to protect the veteran’s due process rights, we would recommend that these uncertainties be resolved before final legislation is enacted into law, preferably through 

clear and unambiguous statutory language. 

There are also two critical operational concerns that will effect whether the new 

appeals structure can be properly implemented as envisioned. First, the Board and 

VBA must develop and implement a realistic plan to address the almost 450,000 appeals currently pending, most of which are still within VBA’s jurisdiction. Until 

these pending appeals are properly resolved, no new appeals structure or system 

can expect to be successful. While we have been in discussion with VBA and the 

Board about how best to address these legacy appeals, we have yet to agree on formal plans to deal with its current backlog of appeals. We need Congress to perform 

aggressive oversight of this process to ensure a proper outcome. 

Furthermore, since appeals that are filed today can take years to be completed, 

some will last more than a decade, how will VBA and the Board operate two difVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00088 Fmt 6633 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
85 

ferent appeals systems simultaneously, each with separate rules for treating evidence and the ‘‘duty to assist?’’ How will new employees be trained under both the 

old and new systems so that there is efficient administration of these two parallel 

appeals systems? How will the Court view the existence of two different standards 

for critical matters such as the ‘‘duty to assist’’ veterans? We would recommend that 

these questions be thoroughly considered by the Committee and discussed with 

VSOs to avoid future problems. 

Finally, as mentioned above, the most critical factor in the rise of the current 

backlog of pending appeals was the lack of sufficient resources to meet the workload. Similarly, unless VBA and the Board request and are provided adequate resources to meet staffing, infrastructure and IT requirements, no new appeals reform 

will be successful in the long run. As VBA’s productivity continues to increase, the 

volume of processed claims will also continue to rise, which has historically been 

steady at a rate of 10–11 percent of claims decisions. In addition, the new claims 

and appeals framework will likely increase the number of supplemental claims filed 

significantly. We are encouraged that VA has indicated a need for greater resources 

for both VBA and the Board in order to make this new appeals system successful; 

however, too often in the past funding for new initiatives has waned over time. We 

would urge the Committee to seriously consider proper funding levels are appropriated as this legislation moves forward. 

Mr. Chairman, the draft legislation being considered today represents a true collaboration between VA, VSOs and other key stakeholders in the appeals process. 

Building on the work first begun two years ago, tremendous progress has been made 

this year culminating in this draft appeals legislation. There are still a number of 

improvements and clarifications that must be made to the draft legislation but we 

remain committed to working with Congress, VA and other stakeholders to resolve 

them as soon as feasible. Working together, we are hopeful that the Senate and 

House will enact comprehensive appeals reform legislation before the end of this 

year to provide veterans with quicker favorable outcomes, while fully protecting 

their due process rights. 

DRAFT BILL, THE VETERANS MOBILITY SAFETY ACT OF 2016

The Veterans Mobility Safety Act of 2016 would enhance the VA program providing automobiles and adaptive equipment assistance for service-disabled veterans. 

Under current law, Congress authorizes financial grants for certain ill and injured 

veterans and active duty servicemembers to purchase a new or used automobile or 

other conveyances. This grant may also be paid if disabilities are a result of medical 

treatment, examination, vocational rehabilitation or compensated work therapy provided by VA. In addition to financial assistance toward the purchase of an automobile or other conveyance, financial assistance is provided for modifications that 

may be necessary to accommodate these covered service-connected disabilities resulting from an injury or disease incurred or aggravated during active military 

service. 

Currently, grants are paid directly to the seller of the automobile for the total 

price up to $20,114.34. A veteran or servicemember may only receive the automobile 

grant once in his or her lifetime. Repairs and modifications to a vehicle may also 

be authorized throughout the veteran’s lifetime, subject to predetermined limits. 

This legislation would require the Secretary of VA to develop comprehensive quality standards for providers of vehicle modification services under the automobile 

adaptive equipment program. This new policy would be developed and overseen in 

consultation with veterans service organizations, the National Highway Transportation Administration, industry representatives, manufacturers of automobile adaptive equipment and other entities with expertise in installing, repairing, replacing, 

or manufacturing mobility equipment or developing mobility accreditation standards 

for automobile adaptive equipment. 

Although DAV has no resolution from our members concerning this issue, we support the intent of this legislation to help injured and ill veterans lead high quality 

lives. The legislation would provide an added measure of quality assurance to protect these seriously ill and injured veterans from substandard craftsmanship that 

could potentially jeopardize their safety, the safety of their families and the general 

public. 

We recommend the stakeholders identified within this proposal be involved 

throughout this entire process, to include rule and policy development and implementation. Furthermore, we recommend that all efforts be made to ensure that any 

policy that is created does not adversely impact a veteran’s ability to receive vehicle 

modifications. If standards are not implemented carefully, some manufactures or installers may be unable, or unwilling, to comply with the new requirements. In this 

86 

scenario, a veteran’s options could become increasingly limited when they seek out 

installation and repairs of their automobile adaptive equipment. 

DRAFT BILL, TO EXPAND ELIGIBILITY FOR HOSPITAL CARE AND MEDICAL SERVICES

UNDER SECTION 101 OF THE VETERANS ACCESS, CHOICE, AND ACCOUNTABILITY ACT

OF 2014 TO INCLUDE VETERANS IN RECEIPT OF HEALTH SERVICES UNDER THE PILOT

PROGRAM OF THE DEPARTMENT OF VETERANS AFFAIRS FOR RURAL VETERANS

Section 1 of this bill would make veterans who have received care under the Access Received Closer to Home (Project ARCH) pilot program eligible to participate 

in the Veterans Choice Program. Section 403 of the Veterans’ Mental Health and 

Other Care Improvements Act of 2008 (Public Law 110–387; 38 U.S.C. 1703 note), 

provided VA with authority to conduct this pilot in five sites in Kansas, Montana, 

Virginia, Arizona and Maine. 

Project ARCH sites became operational on August 29, 2011, and the three-year 

pilot program, which was set to expire on August 29, 2014, was extended to August 7, 2016 by section 104 of the Veterans Access, Choice, and Accountability Act 

of 2014 (VACAA), Public Law 113–146. Moreover, the VA is required to ensure that 

medical appointments for those veterans eligible to participate in Project ARCH be 

scheduled not later than five days after the date on which the appointment is requested and occur no later than 30 days after such date. 

DAV has supported the extension of Project ARCH beyond its initial authorization. This pilot project has shown promising results in achieving a more patient-centered, coordinated, cost-effective delivery model for fee-basis care. We believe this 

is primarily due to the dedicated VA Care Coordinator at each participating site 

who works closely with veterans and community providers to ensure continuity of 

care and that veterans no longer need to travel hundreds of miles to receive acute 

or tertiary care. 

DAV has previously testified in support of provisions making veterans enrolled in 

Project ARCH eligible to receive care in the community as part of the overall effort 

to fix the misalignment of resources, demand and, in particular, existing authorities 

that hamper VA’s ability to purchase or directly provide health care to ill and injured veterans. 

While we welcome the intent of the bill to extend eligibility to participate in the 

Veterans Choice Program to veterans who have received care under Project ARCH, 

we are concerned veterans who are current participants in Project ARCH will experience disruptions in care as this transition occurs. We have already heard from VA 

Care Coordinators who have expressed concern for the veterans they care for under 

Project ARCH who experienced unwarranted disruptions in their care due to parallel VA programs that purchase care in local communities. 

DISCUSSION DRAFT, INCLUDING PROVISIONS FROM THE CONSTRUCTION REFORM ACT OF

2016, A BILL TO MAKE CERTAIN IMPROVEMENTS IN THE ADMINISTRATION OF DEPARTMENT MEDICAL FACILITY CONSTRUCTION PROJECTS

This bill would build on a prior statutory reform of the management of VA major 

medical facility construction projects (including ‘‘super construction projects’’) by establishing a new, mandatory requirement that VA follow industry standards, standard designs, and best practices in constructing VA facilities. The bill also would require forensic audits by a qualified outside Federal auditor in cases in which the 

final cost of a major medical facility construction project exceeded its statutory appropriation by more than 25 percent. 

This bill would amend VA’s notice requirements to Congress with regard to accounting for bid savings on major projects, with specifications. 

Finally, this bill would require a quarterly report to Congress on super construction projects, including progress being made, planning variances and budgetary 

matters. 

Delegates to our most recent National Convention approved Resolution No. 100, 

urging the Administration and Congress to properly support VA’s construction and 

infrastructure needs. This bill is consistent with the intent of our resolution; therefore, DAV supports this bill and urges its enactment. 

DISCUSSION DRAFT, INCLUDING VA PROPOSAL TO MODIFY REQUIREMENTS UNDER WHICH

THE DEPARTMENT IS REQUIRED TO PROVIDE COMPENSATION AND PENSION EXAMINATIONS TO VETERANS SEEKING DISABILITY BENEFITS

The proposed discussion draft bill would change the standards for determining 

when VA is required to provide a disability compensation examination or obtain 

medical opinions. 

87 

Currently, VA’s ‘‘duty to assist’’ veterans with disability compensation claims includes requirements for providing disability compensation examinations or medical 

opinions in order for VA to reach a fully informed and proper entitlement determination. VA is required to provide these examinations or medical opinions when 

a veteran’s record does not contain sufficient medical evidence for VA to make a decision and there is competent evidence of a current disability, or persistent or recurrent symptoms of a disability; or when the record suggests that a disability, or 

symptoms, may be associated with active military service. 

The discussion draft bill adds a new requirement that the veteran’s claim record 

contain ‘‘objective evidence’’ that an injury or disease was incurred, or aggravated 

while performing active military service; or that the injury, or disease became manifest during the applicable presumptive periods; or that the veteran experienced an 

event in service, capable of causing a particular injury or disease. The effect of this 

draft proposal would raise the evidentiary threshold for when VA would be required 

to provide a VA examination or medical opinion. 

Enactment of such legislation would make it more difficult for veterans seeking 

to establish entitlement to benefits derived from injuries or illnesses acquired as a 

result of their active military service. Disability compensation examinations play a 

vital role in helping to develop the evidence necessary to support a veteran’s claim. 

Creating more stringent requirements before VA has an obligation to order an examination or opinion would impose a significant new barrier for many veterans to 

overcome as they attempt to prove the validity of their claims. 

Further, as VA denies more veterans the ability to have an examination or receive 

a medical opinion, there would likely be an increase in the number of appeals, forcing many veterans to endure a lengthy appeals process in order to have their claims 

properly developed. 

DAV strongly opposes this draft legislation consistent with DAV Resolution No. 

008, which opposes any proposals that would reduce, add limitations on, or eliminate benefits for service-connected disabled veterans or their families. Because the 

changes contemplated within this draft bill would make it more difficult for veterans to prove meritorious claims, we oppose the legislation. 

Mr. Chairman, DAV appreciates the opportunity to provide testimony. I would be 

pleased to address any questions you, or Members of the Committee may have on 

the topics covered in this statement. 

Chairman ISAKSON. Thank you very much for your testimony. 

Mr. Blake. 

STATEMENT OF CARL BLAKE, ASSOCIATE EXECUTIVE DIRECTOR OF GOVERNMENT RELATIONS, PARALYZED VETERANS 

OF AMERICA 

Mr. BLAKE. Chairman Isakson, Members of the Committee, on 

behalf of Paralyzed Veterans of America, I would like to thank you 

for the opportunity to testify today. 

It has been our historical experience and that of our members 

who have extensive interaction with the VA health care system 

that veterans around the country prefer to receive their care from 

the VA health care system. This point as affirmed from a recent 

survey of our members gauging their experiences with VA health 

care. 

As we consider legislation designed to reform the VA health care 

system, it is important to recognize that the VA’s specialized services, particularly spinal cord injury and disease care, cannot be 

adequately duplicated in the private sector. Many advocates for 

greater access to care in the community often minimize or even ignore altogether this point without recognizing the potentially devastating impact that pushing more veterans into the community 

might actually have on the larger VA health care system and particularly specialized health services that rest on the bedrock of that 

system. 

88 

While we appreciate the intent of S. 2896, we believe it is based 

on the flawed assumption that the Choice program as currently implemented is the best way forward for VA health care. I would 

point out that the VA just last fall released its community care consolidation plan and we believe that sets a better benchmark for the 

path forward. 

During the House Committee on Veterans’ Affairs where this 

plan was first considered just last fall, that plan was roundly 

lauded by members on both sides of that committee, including all 

of the doctors in both parties. Yet, selective amnesia seems to have 

caused us to forget that that was actually praised by both parties 

on that committee when it was unveiled. 

Additionally, PVA, along with our partners in the Independent 

Budget, the VFW and the DAV, presented to this Committee a 

framework for VA health care reform that builds on the VA’s own 

plan. It includes a comprehensive set of policy ideas that will make 

an immediate impact on the delivery of health care while laying 

out a long-term vision for sustainable high-quality and veteran-centric care. 

Mr. Chairman, as the Committee considers moving forward with 

VA health care reform, I think we have to change our focus simply 

from Choice, Choice, Choice, to what is the right program to benefit 

veterans in the right way. I think Dr. Yehia has done an outstanding job trying to shepherd this process through. Sometimes I 

wonder if we are paying enough attention to what he is really 

doing, other than individual instances where he has made an impact on individual Senators’ and Members of Congress’ district. 

PVA strongly supports the draft bill, the Veterans Mobility Safety Act of 2016. Adaptive automobile equipment is one of the most 

important issues for PVA members. We support the effort to ensure 

veterans with mobility impairment receive adaptive equipment and 

adaptations that meet industry standards and specifications and 

that are properly installed for use. Strangely, current law does not 

require VA to actually certify that those businesses installing 

adaptive equipment on vehicles for disabled veterans are qualified 

to do so. 

We appreciate Senator Moran introducing this bill. It is a companion to H.R. 3471. We particularly appreciate the fact that before 

the Committee, they were willing to entertain the language 

changes that had been worked out as the House Committee on Veterans’ Affairs moved that bill, and we look forward to seeing that 

bill pushed through until final passage. 

Last, Mr. Chairman, I think there has been a lot of discussion 

about the appeals reform process. PVA was pleased to work with 

our colleagues here on this panel, with VBA, and with the representatives of the Board of Veterans Appeals to come up with a 

real solution to the appeals process. I think the numbers have been 

mentioned a number of times already here. More than 450,000 in 

the appeals backlog, potentially two million in the backlog if 

changes are not made within the next decade, claims or appeals 

that may end up dragging out for 6 to 10 years if those same reforms are not made. Those are clearly all unacceptable statistics. 

We are encouraged by VA’s ambitious efforts to achieve reform. 

VA has recognized that VSOs have specific concerns and they have 

89 

worked with us to find solutions to move us forward without diluting veterans’ rights in the process. We appreciate the fact that they 

continue to work with us even today as this bill is being considered. 

We support the general framework of the legislation as it has 

been proposed, but at a minimum, we would point you to our written statement for some additional considerations as the bill is 

moved forward for final passage. 

I would also have to just—I would be remiss if I did not mention 

that as we move forward with appeals reform, we cannot forget, I 

think Mr. Chairman or one of the Senators mentioned about the 

existing backlog and how that gets addressed in the context of this 

appeals process, because it will do no good to stand up a new process with the weight of that still pressing down on the VA appeals 

system. 

With that, Mr. Chairman, I would like to thank you for the opportunity to testify. I would be happy to answer any questions you 

or the members may have. 

[The prepared statement of Mr. Blake follows:] 

PREPARED STATEMENT OF CARL BLAKE, ASSOCIATE EXECUTIVE DIRECTOR, GOVERNMENT RELATIONS, PARALYZED VETERANS OF AMERICA

Chairman Isakson, Ranking Member Blumenthal, and Members of the Committee: Paralyzed Veterans of America (PVA) would like to thank you for the opportunity to submit our views on legislation pending before the Committee. The magnitude of the impact that veterans’ health care reform will have on present and future generations of veterans cannot be overstated, and we are proud to be part of 

this important discussion. 

THE ‘‘SOLVE ACT’’ 

The Department of Labor (DOL) administers the Veterans Employment and 

Training Services Program which is responsible for distributing Jobs for Veterans 

State Grants (JVSG). Through these grants, states fund two types of positions that 

can be found in most American Job Centers. Disabled Veterans’ Outreach Program 

(DVOP) specialists provide intensive services to veterans and eligible spouses, designed to facilitate participants’ transition into meaningful civilian employment. 

Local Veterans’ Employment Representatives (LVER) perform outreach to local 

businesses and employers to advocate for the hiring of veterans. 

Currently, DOL reviews state applications for JVSG’s, but when a provision within the state’s proposal is rejected, the entire plan is rejected without explanation. 

This bill would allow DOL to approve or disapprove certain aspects of a state plan 

rather than a blanket rejection. It would also ensure that States receive a full explanation as to why the proposal was rejected. This legislation would also provide Governors more flexibility in deciding how best to utilize the grants. It recognizes that 

states are in a better position to determine what circumstances constitute significant barriers to employment for their local veterans instead of having DOL establish 

a few criteria meant to capture all barriers throughout the entire U.S. The bill also 

encourages states to better coordinate and co-locate with job centers ensuring that 

DVOPs and LVERs continue to focus on their core mission. 

S. 2896, THE ‘‘CARE VETERANS DESERVE ACT OF 2016’’ 

PVA’s historical experience and extensive interaction with veterans around the 

country leads us to confidently conclude that veterans prefer to receive their care 

from the Department of Veterans Affairs (VA). We recognize, however, that while 

for most enrolled veterans VA remains the best and preferred option, VA cannot 

provide all services in all locations at all times. Care in the community must remain 

a viable option. 

As we consider legislation designed to reform VA health care, it is important to 

recognize that VA’s specialized services, particularly spinal cord injury care, cannot 

be adequately duplicated in the private sector. Many advocates for greater access 

to care in the community also minimize, or ignore altogether, the devastating impact that pushing more veterans into the community would have on the larger VA 

90 

health care system, and by extension the specialized health services that rely upon 

the larger system. Broad expansion of community care could lead to a significant 

decline in the critical mass of patients needed to keep all services viable. We cannot 

emphasize enough that all tertiary care services are critical to the broader specialized care programs provided to veterans. If these services decline, then specialized 

care is also diminished. The bottom line is that the SCI system of care, and the 

other specialized services in VA, do not operate in a vacuum. Veterans with catastrophic disabilities rely almost exclusively upon the VA’s specialized services, as 

well as the wide array of tertiary care services provided at VA medical centers. Specialized services, such as spinal cord injury care, are part of the core mission and 

responsibility of the VA. As the VA continues the trend toward greater utilization 

of community care, Congress and the Administration must be cognizant of the impact those decisions will have on veterans who need the VA the most. 

PVA, along with our Independent Budget (IB) partners, Disabled American Veterans (DAV) and Veterans of Foreign Wars (VFW), developed and previously presented to this Committee a framework for VA health care reform. It includes a comprehensive set of policy ideas that will make an immediate impact on the delivery 

of care, while laying out a long-term vision for a sustainable, high-quality, veterancentered health care system. Our framework stands on four pillars: 1) restructuring 

the veterans health care system; 2) redesigning the systems and procedures that facilitate access to health care; 3) realigning the provision and allocation of VA’s resources to reflect the mission; and 4) reforming VA’s culture with workforce innovations and real accountability. We believe the proposal included in this legislation to 

make all veterans eligible for the Choice program is not the best avenue to accomplish the goals and principles laid out above, and we cannot offer our support. 

While PVA cannot support the proposal to expand and make permanent the current Choice program, there are productive aspects of this legislation. As technology 

advances and opens access to health care for veterans using telemedicine, the legal 

parameters of that care need to expand alongside the technology. Permitting a licensed health care professional to treat veterans on behalf of the U.S. Government 

in any location benefits veterans in the form of greater access and the VA by increasing its pool of employees. This is already in practice with attorneys working 

for or on behalf of the U.S. Government. 

PVA also supports the expansion of operating hours for pharmacies and VA medical facilities to hours comparable to those in the retail industry, and we are glad 

to see that in this legislation. In a recent survey of PVA members about their experiences with VA health care, one of the most common themes was the lack of access 

to pharmacy services, particularly beyond normally expected business hours. This 

provision would alleviate some of those concerns. 

S. 2888, THE ‘‘JANEY ENSMINGER ACT OF 2016’’ 

PVA understands and supports the intent of S. 2888, the ‘‘Janey Ensminger Act 

of 2016.’’ This legislation would amend the Public Health Service Act with respect 

to the Agency for Toxic Substances and Disease Registry’s (ATSDR) review and publication of illness and conditions relating to veterans stationed at Camp Lejeune, 

North Carolina, and their families. The bill would require the ATSDR Administrator 

to review the scientific data pertaining to the relationship between individuals at 

Camp Lejeune and the suspected resulting illness or condition. The ATSDR Administrator would be required to determine each condition that may be caused by toxic 

exposure, categorize the level of evidence for these conditions into three categories; 

sufficient with reasonable confidence that the exposure is a cause of the illness or 

condition, modest supporting causation, or no more than limited supporting causation. This information would then be published and continually updated on HHS’ 

website. If these evidentiary categorizations are different from previous categorizations those veterans and their families currently receiving care under them would 

continue to receive that care. Newly registered veterans and family members would 

receive care based on the list provided by the ATSDR Administrator. Research regarding toxic exposures and the subsequent credibility of presumptive conditions 

has traditionally been the charge of the Institute of Medicine (IOM). The bill does 

not discuss the processes should the ATSDR conflict with the findings of the IOM. 

S. 2883, THE ‘‘DISABLED VETERANS CARE ACT’’ 

PVA strongly supports S. 2883, the ‘‘Disabled Veterans Care Act.’’ This legislation 

would reinstate the requirement for the Department of Veterans Affairs (VA) to provide an annual report to Congress that details its capacity in selected specialized 

health care services, particularly spinal cord injury and disease (SCI/D). The report 

includes information such as utilization rates, staffing, and facility bed censuses. 

91 

Requiring VA to compile such data into the form of a report to share with Congress 

annually will lead to more accountability within VA, help ensure more efficient allocation of VA resources, particularly in the area of staffing, and improve veterans’ 

access in VA’s specialized systems of care. 

Within VA’s Spinal Cord Injury and Disease system of care, access to timely care 

is critical to the health and well-being of this population of veterans. Many of the 

VA’s specialized services and rehabilitative programs have established policies on 

the staffing requirements and number of beds that must be available to maintain 

capacity and provide high quality care. The fact is VA has not maintained its capacity to provide for the unique health care needs of severely disabled veterans. Reductions in both inpatient beds and staff in VA’s acute and extended care settings have 

been continuously reported throughout the system of care, particularly since the capacity reporting requirement expired in 2008. 

When VA facilities do not adhere to these staffing policies and requirements, veterans suffer with prolonged wait times for medical appointments, or in the case of 

PVA members, have to limit their care to an SCI/D clinic, despite the need for more 

comprehensive care. There have been instances within VA’s SCI/D system of care 

when staffing positions have gone vacant for long periods of time, and as a result, 

the facility’s bed capacity is diminished, thus decreasing access. An annual capacity 

report, to be audited by the VA Office of Inspector General, will allow VA leadership 

and Congress to have an accurate depiction of VA’s ability to provide quality care 

in its specialized systems of care. 

This critically important legislation has been a top priority for PVA for years. We 

applaud Senators Brown, Toomey, Murray, Sanders, Casey and Coons for working 

to ensure VA is able to provide for the unique health care needs of catastrophically 

disabled veterans. While we certainly appreciate the fact that this issue is included 

in the recently passed ‘‘Military Construction and Veterans Affairs Appropriations 

Act for FY 2017,’’ we believe this bill must be pursued until this issue is pushed 

through to final passage. 

S. 2679, THE ‘‘HELPING VETERANS EXPOSED TO BURN PITS ACT’’ 

PVA supports S. 2679, the ‘‘Helping Veterans Exposed to Burn Pits Act.’’ This proposed legislation would establish within the Department of Veterans Affairs (VA) 

a center of excellence in the prevention, diagnosis, mitigation, treatment, and rehabilitation of health conditions relating to exposure to burn pits. The site selected 

would be equipped to study, diagnose, and treat the health conditions related to 

burn pits. Additional responsibilities would task VA to determine the best practices 

for treatment, and to provide guidance for the health systems of VA and DOD in 

determining the personnel required to enact those best practices. This bill would 

allow the center to access and use the data accumulated in the burn pit registry. 

Across Iraq and Afghanistan, military sites commonly used burn pits for waste 

disposal. The materials burned were varied but can range from batteries to human 

waste. With limited means for disposing of trash, the burning of waste and the subsequent inhalation of those fumes are an unavoidable certainty. Not unlike the experience of veterans exposed to Agent Orange following the Vietnam War, veterans 

with conditions likely attributable to burn pits face difficulties proving exposure as 

well. The scientific linkages have yet to be made conclusive enough. As a result, veterans’ access to health care and benefits is compromised. VA maintains that research thus far has failed to provide the link between exposure and long-term disease. Until such research is conducted, affected veterans continue to wait for answers, validation, and treatment. For veterans exposed to Agent Orange this wait 

lasted decades. This country has a responsibility to determine the cause of and treat 

the conditions that result from one’s service. 

S. 2520, THE ‘‘NEWBORN CARE IMPROVEMENT ACT’’ 

PVA supports S. 2520, the ‘‘Newborn Care Improvement Act,’’ a bill to amend Section 1786 of title 38, United States Code, to authorize hospital stays of up to 14 days 

for newborns under VA care. The current provision allows for a maximum stay of 

seven days. As the average hospital stay for a healthy newborn is two days, S. 2520 

would provide enormous relief for families facing complications immediately after 

birth or severe infant illness. 

S. 2487, THE ‘‘FEMALE VETERAN SUICIDE PREVENTION ACT’’ 

PVA strongly supports S. 2487, the ‘‘Female Veteran Suicide Prevention Act.’’ 

This bill would direct the Secretary of Veterans Affairs to identify mental health 

care and suicide prevention programs and metrics that are effective in treating 

women veterans. Newly published data by VA determined that female military vetVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00095 Fmt 6633 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
92 

erans commit suicide at nearly six times the rate of other women. For young 

women, ages 18–29, the suicides are twelve times as high. The rate among women 

veterans nearly reaches the rate of male veterans. Of the annual suicide deaths per 

100,000 people, male veterans comprised 32.1, and non-veteran men 20.9. Among 

women veterans they comprised 28.7 compared to just 5.2 among non-veteran 

women. This is a particularly concerning statistic since men, on average, are far 

more likely than women to commit suicide. VA is woefully ill-equipped to address 

women veterans’ mental health needs, particularly as relates to risk for suicide. 

S. 2487 would make a first and giant step in addressing these inadequacies. 

S. 2049, to establish in the Department of Veterans Affairs a continuing medical 

education program for non-Department medical professionals who treat veterans 

and family members of veterans 

PVA supports S. 2049, to establish in the Department of Veterans Affairs a continuing medical education program for non-Department medical professionals who 

treat veterans and family members of veterans. Veterans suffer from a wide range 

of medical issues that are not experienced by the majority of the American population. Continuing medical education that focuses on veterans’ issues will better prepare these medical professionals to provide care for veterans. 

DISCUSSION DRAFT—REVISION OF EVIDENTIARY THRESHOLD FOR MEDICAL

EXAMINATIONS AND OPINIONS

PVA is opposed to the draft bill ‘‘Revision of Evidentiary Threshold for Medical 

Examinations and Opinions.’’ This bill attempts to increase the burden on the claimant, specifically those who have not deployed in combat, to demonstrate evidence of 

service connection. ‘‘Objective’’ evidence is a high standard, and requiring a veteran 

to meet it undermines the very purpose of VA’s statutory duty to assist. In fact, 38 

U.S.C. 5103(a)(2) makes clear that the Secretary’s duty to assist is not required only 

in circumstances where there is no ‘‘reasonable possibility’’ that such assistance 

would aid in substantiating the claim. If there is a reasonable possibility that an 

exam would aid a veteran in adequately presenting his or her claim, this provision 

would block that assistance unless the veteran first clears this new substantial hurdle of showing objectively that service-connection exists. 

It is exceedingly rare for a claimant to have to argue the need for an exam under 

the current provisions in § 5103(d). This will certainly provoke numerous appeals, 

right at a time when the VA and VSO community are trying to tackle the appeals 

backlog. This provision is also somewhat redundant, if not confusing, if one attempts 

to reconcile it with subsection (2)(c). Veterans should have access to the tools necessary to adequately present their claims. This bill instead appears to be reminiscent of a time when veterans were required to submit ‘‘well-grounded’’ claims. 

DISCUSSION DRAFT—VETERANS MOBILITY SAFETY ACT OF 2016

PVA strongly supports the draft bill ‘‘Veterans Mobility Safety Act of 2016’’ submitted for discussion by Senator Moran. The adaptive automobile equipment grant 

is an important issue for PVA members, as they are the highest users of this particular benefit. Those veterans with catastrophic disabilities have a critical need for 

mobility to help maintain a high quality of life and allow them to continue to be 

active members of their community despite their disability. PVA supports the effort 

to ensure veterans with mobility impairment receive adaptive equipment and adaptations that meet industry standards and specifications. As technology advances, 

new automotive adaptive devices continue to open the door to more drivers with disabilities. Each person with a mobility issue is unique and has individual requirements and specific features that will allow them to feel confident and comfortable 

while they drive. 

The law as it is currently written requires that before providing an automobile 

under this section, the Secretary determine that the eligible person is able to operate the vehicle safely. In response to this provision, Veterans currently receive training from the VA Driver’s Rehabilitation Program on how to safely operate their new 

vehicle or equipment before embarking out onto public roadways. VA also has a requirement to monitor the quality of the equipment being installed. But VA is not 

required to ensure that those installing adaptive equipment on vehicles for disabled 

veterans are qualified to do so. The bulk of the training and monitoring the quality 

of equipment being issued is rendered meaningless if the adaptive equipment itself 

fails. Requiring that vendors offering such services be certified is simply a matter 

of due diligence in line with the previously mentioned requirements. One can easily 

recognize the gravity of harm that can ensue upon not only the veteran, but other 

motorists, passengers and pedestrians when this type of equipment fails due to 

faulty installation or repairs. 

93 

It is also important that VA remain good stewards of tax payer dollars. When a 

veteran hires an unqualified installer, and the vehicle fails, either the veteran is 

stuck trying to mend the situation or the VA is stuck with an avoidable secondary 

bill. 

The companion bill currently being considered by the House Committee on Veterans Affairs, H.R. 3471, originally produced inadvertent consequences, particularly 

with regard to promoting or creating certain conflicts of interest. The text in front 

of us today mirrors the substantial improvements reflected in the recently amended 

version of H.R. 3471 that PVA pushed for in the House to ensure that veterans remain the focus of this legislation, not private industry. It brings together industry 

stakeholders and the veteran community that stands to be directly impacted to construct a policy which establishes standards without inhibiting industry growth and 

technological advancement. It also ensures that choice/access remain viable for rural 

veterans without compromising safety. 

Section (3)(e) is unnecessary and, at worst, might contradict the provision in Section (3)(b)(4), which permits the Secretary to designate organizations who meet or 

exceed the standards developed under this Section to certify providers. The importance of (3)(b)(4) is paramount, as it ensures that providers who already adhere to 

high quality standards are not penalized by this bill and forced to undergo another 

round of certification unnecessarily. It also facilitates the implementation of this 

legislation by having providers available and not awaiting certification. Ultimately 

the conflicts that arose in the original text in H.R. 3471 were addressed by changing 

the structure of the bill and removing the construction of standards from the grasp 

of private industry. 

DISCUSSION DRAFT—TO EXPAND ELIGIBILITY FOR RURAL VETERANS

With the imminent sunset of Project ARCH in August 2016, this bill would expand eligibility under the current Choice program to any veteran who has at one 

time or another received health services under Project ARCH. There should be a caveat to this provision which contemplates the possibility of a veteran having moved 

or will move his or her residence in the future to a location where access to care 

in the community is unnecessary. As authorities are shifted in statute, the bill 

should also ensure the resources and ability to preserve existing contracts with the 

providers who currently serve veterans enrolled in ARCH are also addressed so that 

services are not disrupted. 

DISCUSSION DRAFT—PROVISIONS FROM THE CONSTRUCTION REFORM ACT OF 2016

PVA supports the discussion draft including provisions from the Construction Reform Act of 2016, a bill to make certain improvements in the administration of Department medical facility construction projects. In light of the egregious construction 

management failures in places like Denver, Colorado, Orlando, Florida, and New 

Orleans, Louisiana, a serious discussion about VA’s responsibility in the construction business has taken place. This bill serves to support steps that have already 

been taken to improve construction management at VA. We appreciate the Committee focusing on this important issue. 

APPEALS REFORM

PVA has a highly trained force of over 70 service officers who spend two years 

in specialized training under supervision to develop veterans’ claims for both our 

member and non-member clients. PVA maintains a national Appeals Office staffed 

by attorneys and legal interns who represent clients at the Board of Veterans’ Appeals. We also have attorneys who practice before the Board and before the Court 

of Appeals for Veterans Claims which enables continuity of representation throughout subsequent appellate court review. 

In March 2016, the Veterans Benefits Administration (VBA), the Board and major 

veterans service organizations (VSO’s) partnered to form a working group with the 

goal of reforming the appeals process. The number of pending appeals has surpassed 

440,000. If the process goes unaddressed, VA projects that the appeals inventory 

will climb to over two million over the course of the next decade. Experienced Veteran Law Judges (VLJ) who adjudicate appeals are a commodity and form a critical 

component of the system. This attribute limits VA’s ability to scale its resources to 

the extent necessary to deal with such an inventory. Ten years from now, if the system remains unchanged, veterans will expect to wait six years for a decision. We 

believe reform is necessary, and we support this legislation moving forward. 

PVA is encouraged by VA’s ambitious efforts to achieve reform. The haste with 

which it desires to move, though, invites caution from those who recognize that 

overhauling such a complex process will produce unintended consequences. While 

94 

we have a responsibility to serve the veteran community and tackle problems, we 

also have the responsibility to ensure that in doing so we do not leave veterans 

worse off. VA has recognized that VSO’s have specific concerns and has worked with 

us to find solutions that move us forward without diluting veterans’ rights in the 

process. 

It is important that as we approach this major issue that we do not lose sight 

of the fact that veterans have earned these benefits through the highest service to 

their country and have every right to pursue these earned benefits to the fullest. 

As we promote and seek public support for change, it is easy to use statements such 

as, ‘‘there are veterans who are currently rated at 100% who are still pursuing appeals,’’ to illustrate the problems that pervade the system. PVA will be the first to 

point out, though, that a veteran rated at 100% under 38 U.S.C. § 1114(j) might also 

be incapacitated to the point that he or she requires 24 hour caregiver assistance. 

A 100% service-connected disability rating does not contemplate the cost of this 

care, and veterans may seek special monthly compensation (SMC) to the tune of 

thousands of dollars needed to address their individual needs. Few people would disagree that pursuing these added disability benefits are vital to a veteran’s ability 

to survive and maintain some level of quality of life. Without clarification, such 

statements lead people to believe that veterans are the problem. 

This is why PVA believes it is so important to ensure that VSO’s remain as involved in the follow-on development process and implementation as they are now 

if this plan is to succeed. This is a procedural overhaul, and VSO’s are the bulwark 

that prevents procedural change from diluting the substantive rights of veterans. 

Notwithstanding the strong collaboration between VA and the various stakeholders 

over the last few months, many important questions remain unanswered at this 

stage in the development process. 

THE FRAMEWORK

There is no shortage of news articles and academic pieces that attempt to illustrate for readers the level of complexity and redundancy in the current appeals process. It is a unique system that has added layer after layer of substantive and procedural rights for veterans over the years. The most notable aspect differentiating it 

from other U.S. court systems is the ability for a claimant to inject new evidence 

at almost any phase. While this non-adversarial process offers veterans the unique 

ability to continuously supplement their claim with new evidence and seek a new 

decision, it prevents VA from accurately identifying faulty links in the process, 

whether it be individual raters or certain aspects of the process itself. 

As the working group came together and began considering ways to address the 

appeals inventory, it became clear that a long-term fix would require looking beyond 

appeals and taking a holistic view of the entire claims process. The work product 

in front of us today proposes a system with three distinct lanes that a claimant may 

enter following an initial claims decision—the local higher-level review lane, the 

new evidence lane, and the Board review lane. The work horse in this system is 

the new evidence lane. The other two serve distinct purposes focused on correcting 

errors. 

When a claimant receives a decision and determines that an obvious error or oversight has occurred, the local higher-level review lane, also known as the difference 

of opinion lane, offers a fast-track ability to have a more experienced rater review 

the alleged mistake. Review within this lane is limited to the evidence in the record 

at the time of the original decision. It is designed for speed and to allow veterans 

with simple resolutions to avoid languishing on appeal. 

If a claimant learns that a specific piece of evidence is obtainable and would help 

him or her succeed on their claim, the new evidence lane offers the option to resubmit the claim with new evidence for consideration. VA indicates that its goal is a 

125-day turn around on decisions within this lane. Another important aspect is that 

the statutory duty to assist applies only to activity within this lane. 

The third lane offers an appeal to the Board. Within this lane there are two 

tracks with separate dockets. One track permits the addition of new evidence and 

option for a Board hearing. The other track permits a faster resolution by the Board 

for those not seeking to supplement the record. A claimant within this track will 

not be permitted to submit new evidence, but they will have an opportunity to provide a written argument to accompany the appeal. 

If the claimant receives an unfavorable opinion at the Board, he or she may either 

revert to the new evidence lane within one year or file a notice of appeal with the 

Court of Appeals for Veterans Claims within 120 days. Unfavorable decisions at the 

Court would be final, and the claimant would no longer have the benefit of the original effective date associated with that claim. 

95 

One of the most beneficial aspects of this new plan is the protection of the effective date. Choosing one lane over the other does not limit the ability to later choose 

a different lane. The decision to enter any of the lanes must be made within one 

year of receiving the previous decision. Doing so preserves the effective date relating 

back to the date of the original claim. Another major issue with the claims process 

that is addressed in this plan is improved decision notices. A thorough understanding of why a claimant received an adverse decision leads to educated decisions 

with regard to subsequent lane choices or discontinuing the claim altogether. 

PVA’S CONCERNS

PVA is concerned with the dissolution of the Board’s authority to procure an independent medical examination or opinion (IME) under 38 U.S.C. § 7109. VA originally proposed to dissolve this authority in order to maintain consistent application 

of the concept of having all development of evidence take place at the Agency of 

Original Jurisdiction (AOJ) level in the New or Supplemental Evidence Lane. 

Throughout extended discussions and negotiations on this topic, PVA has worked 

with the Board to find an alternative authority supported by certain administrative 

commitments which would collectively preserve the function of § 7109. While we believe the outright removal of § 7109 is a choice of form over substance which disproportionately affects our members, we think if certain provisions are added to this 

bill they might preserve the core attributes of § 7109 to an acceptable level. 

An IME is a tool used by the Board on a case-by-case basis when it ‘‘is warranted 

by the medical complexity or controversy involved in an appeal case.’’ § 7109(a). The 

veteran may petition the Board to request an IME, but the decision to do so remains 

in the discretion of the Board. The Board sua sponte may also request an IME. VA’s 

standard for granting such a request is quite stringent. 38 CFR 3.328(c) states, ‘‘approval shall be granted only upon a determination . . . that the issue under consideration poses a medical problem of such obscurity or complexity, or has generated 

such controversy in the medical community at large, as to justify solicitation of an 

independent medical opinion.’’ The number granted each year usually amounts to 

no more than 100 with approximately 50% being requested by the Board itself. Experienced Board personnel thoroughly consider the issues which provoke the need 

for an outside opinion. Complicating the process further, the Court of Appeals for 

Veterans Claims (CAVC) has carefully attempted to set parameters for the proposed 

questions to be answered by experts. A question presented to a medical expert may 

neither be too vague, nor too specific and leading. A question too vague renders the 

opinion faulty for failing to address the specific issue, while a question too specific 

tends to lead the fact finder to a predisposed result. 

By simply striking § 7109 in its entirety, the current bill proposes to delegate the 

procurement of an IME to the AOJ under preexisting authority found in 38 U.S.C. 

§ 5109. PVA recommends retaining the authority found in § 7109. By its nature, an 

IME tends to address the most complex medical scenarios. Removing this tool from 

the purview of the Board would undermine the reality that properly presenting 

questions to the participating expert is best left to the judge seeking to resolve the 

medical controversy or question. VA’s recommendation implicitly suggests that AOJ 

staff members are equipped with the requisite level of experience to carry out this 

delicate exercise. Even more worrisome is that in the current claims processing system, IME’s are almost exclusively requested at the Board level, despite the AOJ’s 

existing authority to procure one. This begs the question of how many rating officers 

have the experience and expertise to even identify the need for an IME, let alone 

to draft a nuanced question that would comport with veterans law jurisprudence. 

Dissolving § 7109 would have the additional effect of abolishing the centralized office of outside medical opinions. This small staff has played a vital role in facilitating IME’s and maintaining their effectiveness by developing relationships with 

doctors who are experts on particular subjects and willing to do this tedious task 

for almost no money. This office not only expedites the receipt of opinions, but it 

also ensures a high level of quality. Now this concentrated effort conducted by a 

group of people thoroughly versed in the IME process will simply disintegrate in 

favor of IME’s being requested, maybe, by a savvy rating officer who has the wherewithal to recognize the need. Even in such a fortuitous circumstance, the rating officer will be left to fend for itself in finding a qualified and willing expert to conduct 

the task—something this office would have done for them. 

If the Committee intends to strike § 7109, we would ask to have included the mitigating language reflected in the House companion bill, H.R. 5083. PVA worked with 

VA to reduce the impact by supplementing § 5109 with a new subsection (d) and 

§ 5103B(c)(2). This approach, however, still discards a properly functioning organ of 

the Board in favor of more bureaucracy. IME’s generally have a fast turn-around 

96 

at the Board, and the weight of the opinion is often significant enough to bring finality to a claim. It is possible that VA could preserve the function of the office of 

outside medical opinions in some fashion, perhaps consolidating it under VBA’s authority. The Board has considered our suggestions and alternative proposals in this 

regard. VA’s senior leadership has committed to PVA that it will take the necessary 

steps to preserve the best practices and resources of this office. PVA highly recommends that if this Committee is entertaining striking § 7109, it should obligate 

VA to explain how it plans to mitigate against the loss of this office and the Committee should conduct oversight during implementation. Similarly, the decreased efficiency with having the process conducted at the AOJ level is concerning. Instead 

of the VLJ requesting an IME and receiving the opinion, now a second person must 

review the claim—the rating officer who received the file on remand. If a veteran 

wishes to appeal this re-adjudication, PVA has asked for and received VA’s commitment to reroute the appeal by default, with exceptions, back to the same VLJ who 

remanded the case to avoid yet another person having to review a claim with 

enough medical complexity to warrant the IME. 

Under the proposed plan the Board would limit remands to errors related to 

VBA’s duty to assist under 38 U.S.C. § 5103A. There are, however, circumstances 

where the AOJ received two separate examinations and honored the duty to assist, 

but an IME is needed to resolve conflicting opinions. The current language in the 

draft bill does not provide the Board the ability to remand a case with an order to 

procure an IME to resolve the conflict in evidence. Of course, we would also note 

that such a situation could easily be resolved if VA would better adhere to its own 

reasonable doubt provision when adjudicating claims. We still see too many VA decisions where this veteran-friendly rule is not properly applied. More often it appears 

VA raters exercise arbitrary prerogative to avoid ruling in favor of the claimant, 

adding obstacles to a claimant’s path without adequate justification. While due diligence in gathering evidence is absolutely necessary, too often it seems that VA is 

working to avoid a fair and legally acceptable ruling favorable for the veteran. Both 

the failure to accept and tendency to devalue non-VA medical evidence are symptoms of this attitude. 

We also recommend an additional jurisdictional safeguard for the Board. In 38 

U.S.C. § 7104, it would be helpful to include language that addresses situations 

where the Board finds that an appeal presents extraordinary circumstances. The 

Board, in its sole discretion, should be able to retain jurisdiction over a remand of 

that appeal. 

A second concern that must be noted is the fact that the problem that brought 

us to the table in the first place is not addressed in this plan—the current bloated 

appeals inventory. It is extremely difficult to place an effective date on this legislation in the absence of a plan to address the inventory. This legislation is a way to 

prevent the inventory from growing, it is not the answer to reducing the current 

inventory. Blurring this distinction should be avoided. The question of how this plan 

should be implemented in light of the current situation deserves serious scrutiny 

that can only be applied by further collaboration between VA and the stakeholders 

involved in this process thus far. We have not considered the question of whether 

this system could be integrated immediately (taking into account the time needed 

to promulgate the necessary rules and regulations) or if steps to reduce the backlog 

are needed first. 

The plan presented here today is predicated on an expectation that decisions in 

the middle lane will be adjudicated within an average time of one hundred and 

twenty-five days. As a result of the Fully Developed Claims process and other efforts 

that included a surge in resources and mandatory overtime, VBA is currently doing 

well in achieving this average wait time for initial claims. And while that is encouraging for the plan we are contemplating here, the present state of affairs could be 

misleading, and we have not had the opportunity to consider the impact on that 

wait time if the new system were implemented and suddenly altered the current 

workflow. Also left unaddressed is the resource requirement that might balloon if 

the plan runs parallel to the current system until all pending claims are phased out 

and resolved. Adequate resources will be essential to weather the growing pains as 

this new system is laid in. Leaving these kinds of questions unanswered and moving 

forward invites the possibility of trading one mangled system for another. 

Some stakeholders have expressed concern over the replacement of the ‘‘new and 

material’’ evidence standard with ‘‘new and relevant.’’ PVA believes this is an acceptable standard for veterans to meet. It is true that the number of appeals in the 

system currently disputing a decision that evidence submitted was not deemed ‘‘material’’ may be as high as 20 percent. The concern is that changing ‘‘material’’ to 

‘‘relevant’’ will simply exchange one appealable issue for another. A clever idea was 

put forward to have VA simply deny the claim if it found that the new evidence 

97 

submitted was not relevant. This would prevent a veteran from appealing the relevance determination, and thereby significantly reduce the number of forthcoming 

appeals. However, this discounts two things. The first is that ‘‘relevant’’ is a significantly lower legal threshold than ‘‘material.’’ Therefore, most determinations will actually lead to the admission of the evidence, and, therefore, fewer appeals. The second is that it might have the counter-intuitive effect of creating a bigger slow-down 

as raters are forced to issue full decision notices when they deny a claim instead 

of simply finding that the evidence was not relevant. 

PVA was a supporter early on of judicial review, and we believe the availability 

of that review has improved the appeals process for veterans. We are concerned that 

this proposal could limit a veteran’s access to court review, and would be happy to 

work with the Committee on creating assurances that this path remains an open 

and effective means to correct error in individual cases as well as to correct agency 

misinterpretations of the law. 

We also have concerns about whether some language as drafted will reflect the 

promises made in those long meetings. For example, it is our understanding that 

reform will not impact the availability of the duty to assist but it will only be enforced on remand to the AOJ, yet as proposed, the language on this issue is confusing. We suggest a clearer approach, so that veterans have the assurance they are 

not losing any existing protections in this reform. 

Finally, this is not simply a VA problem. As stated earlier, PVA has many service 

representatives and spends a great deal of time, funds, and effort on ensuring they 

accomplish their duties at a high level of effectiveness. However, it is important that 

veterans and their representatives also share responsibility when appeals arrive at 

the Board without merit. A disability claim that is denied by VBA should not automatically become an appeal simply based on the claimant’s disagreement with the 

decision. When a claimant either files an appeal on his own behalf, or compels an 

accredited representative to do so with no legal basis for appealing, that appeal 

clogs the system and draws resources away from legitimate appeals. Since 2012, 

PVA has taken steps to reduce frivolous appeals by having claimants sign a ‘‘Notice 

Concerning Limits on PVA Representation Before the Board of Veterans’ Appeals’’ 

at the time they execute the Form 21–22 Power of Attorney (POA) form. PVA clients 

are notified at the time we accept POA that we do not guarantee we will appeal 

every adverse decision and reserve the right to refuse to advance any frivolous appeal, in keeping with VA regulations. 

PVA believes that substantial reform can be achieved, and the time is ripe to accomplish this task. Our organization represents clients with some of the most complex issues, and we cannot stress enough that moving forward should not be done 

at the expense of the most vulnerable veterans. We must remain vigilant and appreciate the benefits of bringing together the variety of stakeholders who are participating and bringing different perspectives and viewpoints—it is a healthy development process that ensures veterans remain the focus. 

Thank you for this opportunity to present PVA’s views on the pending legislation 

before the Committee and I would be happy to answer any questions you may have. 

Chairman ISAKSON. Thank you, Mr. Blake. 

Ms. Rauber. 

STATEMENT OF DIANE BOYD RAUBER, EXECUTIVE DIRECTOR, 

NATIONAL ORGANIZATION OF VETERANS’ ADVOCATES, INC. 

Ms. RAUBER. Chairman Isakson, Ranking Member Blumenthal, 

and Members of the Committee, the National Organization of Veterans’ Advocates thanks you for the opportunity to offer testimony 

on pending legislation. We limit our testimony today to the draft 

appeals reform bill and the discussion draft on the evidentiary 

threshold for medical examinations and opinions. 

NOVA supports improving the appeals process for veterans and 

endorses several features of the appeals reform bill as detailed in 

our written statement. Briefly, these provisions include the requirement that VA provide detailed notice of a decision, effective date 

relief after a BVA decision, the elimination of redundant procedural 

steps, a mandate requiring VA to be bound by favorable findings, 

and the veteran’s continued right to engage an attorney. 

98 

While these provisions represent a step in the right direction, 

there remains areas of concern that require additional Congressional scrutiny. We have expanded on those in our written statement, so I will only highlight a few here today. 

First, it is unfair to limit effective date relief solely to VA and 

BVA decisions without allowing for the same relief after a final 

CAVC decision. This limitation will discourage veterans from exercising their hard fought right of judicial review, because a conscientious advocate is unlikely to advise a veteran to appeal to court and 

risk losing the earlier effective date if there is any chance it could 

be preserved by submitting new and relevant evidence after the 

BVA decision. To prevent a chilling effect on judicial review, effective date protection should be extended to a year after a court decision. Extension of this protection would, in fact, affect a relatively 

small number of cases, because veterans lost less than half of the 

roughly 4,000 court appeals decided in 2015. 

VA has also taken the position that a veteran could not simultaneously seek judicial review of a BVA denial and file a supplemental claim before VA to preserve the original effective date. 

Foreclosing the opportunity to pursue both avenues of relief is not 

only contrary to the veterans’-friendly scheme designed by Congress, it potentially prevents the court from correcting prejudicial 

legal errors. Congress should clarify that a veteran may pursue 

both avenues of relief simultaneously. 

In addition, the framework does not clearly address how the existing 445,000 appeals will be resolved. There is a huge difference 

between the veteran who files her NOD today and the veteran 

whose 5-year-old appeal is now waiting at BVA for a decision. 

Based on recent discussions, VA appears reluctant to allow for any 

voluntary opt-in or to provide specifics about docket management. 

We cannot endorse any proposal that does not resolve these issues. 

NOVA has several concerns regarding docket management. Multiple dockets could result in unjust treatment for separate classes 

of veterans. If multiple dockets are created, a formula needs to be 

developed for docket management. 

Furthermore, VA should allow a veteran who chooses to submit 

evidence only to join the non-hearing docket. Because this evidence 

will not trigger any duty to assist obligation for BVA, there is no 

reason BVA cannot consider these appeals in the non-hearing lane. 

In addition, VA should only require new evidence for supplemental claims. VA has replaced the material standard with relevant. Merely trading relevant for material will not significantly 

reduce the adjudication burden for VA. Removing relevant eliminates the need for a threshold determination and allows VA to adjudicate the merits. 

The success of this reform hinges on VA’s ability to consistently 

issue rating decisions in a 125-day window and decide appeals in 

a year. As demonstrated with the claims backlog and scheduling of 

medical appointments, VA often struggles to meet its own internal 

goals, to the detriment of veterans. 

Furthermore, VA has demonstrated significant difficulty obtaining adequate medical examinations and opinions, which result in 

frequent remands. Without substantive reform to this process, to 

include consideration of a greater role for private and treating phyVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00102 Fmt 6633 Sfmt 6601 Z:\ACTIVE\052416.TXT PAULIN
99 

sician evidence, it is unlikely procedural reform can alone solve 

systemic problems. 

This brings me to VA’s proposal to require a veteran to provide 

objective evidence, such as medical records, service records, or accident reports, before requiring VA to provide an examination. 

NOVA opposes this provision. Such a heightened standard would 

effectively shut out many veterans who are not entitled to the relaxed standards of 38 U.S.C. Section 1154(b) as combat veterans. 

Many in-service symptoms or incidents may not be documented because a veteran does not consider them serious enough to require 

treatment, or in some instances, such as psychological symptoms, 

may choose not to report them for fear of demotion or separation. 

Mr. Chairman, NOVA shares the concern that veterans wait too 

long for a decision on appeal. We welcome the opportunity to continue to work with this Committee and VA to achieve fair appeals 

reform. 

We thank you again for allowing us to address these proposed 

bills and I would be pleased to take any questions. 

[The prepared statement of Ms. Rauber follows:] 

PREPARED STATEMENT OF DIANE BOYD RAUBER, ESQ., EXECUTIVE DIRECTOR, NATIONAL ORGANIZATION OF VETERANS’ ADVOCATES, INC. 

On behalf of the National Organization of Veterans’ Advocates (NOVA), I would 

like to thank Chairman Isakson, Ranking Member Blumenthal, and Members of the 

Committee for the opportunity to offer our views on pending legislation. NOVA will 

limit its testimony to the draft bill addressing appeals reform and the discussion 

draft on the evidentiary threshold for medical examinations and opinions. 

NOVA is a not-for-profit 501(c)(6) educational membership organization incorporated in the District of Columbia in 1993. NOVA represents more than 500 attorneys and agents assisting tens of thousands of our Nation’s military veterans, their 

widows, and their families seeking to obtain their earned benefits from VA, and 

works to develop and encourage high standards of service and representation for all 

persons seeking VA benefits. NOVA members represent veterans before all levels 

of the VA’s disability claims process. In 2000, the United States Court of Appeals 

for Veterans Claims recognized NOVA’s work on behalf of veterans with the Hart 

T. Mankin Distinguished Service Award. NOVA operates a full-time office in Washington, DC. 

DRAFT BILL TO REFORM THE RIGHTS AND PROCESSES RELATING TO APPEALS OF DECI- SIONS REGARDING CLAIMS FOR BENEFITS UNDER THE LAWS ADMINISTERED BY THE

SECRETARY OF VETERANS AFFAIRS

Background 

VA currently reports that there are over 455,000 appeals in the entire system, 

and estimates the number of appeals will rise to two million over the next decade 

without reform. In addition, there are more than 60,000 pending hearing requests. 

Since BVA currently only has the capacity to hold approximately 11,000 hearings 

per year, a veteran can wait several years to have a hearing. 

To address this problem, VA proposed a ‘‘simplified appeals process’’ in its 2017 

budget for BVA. The process proposed by VA included several concepts contrary to 

the veteran-friendly system created by Congress, such as closing the record and denying veterans the due process right to be heard before BVA. Department of Veterans Affairs, Congressional Submission, FY 2017, Vol. III at BVA 280–83 (February 9, 2017). VA presented this proposal as a ‘‘straw man’’ designed to draw stakeholders into discussions on reforming the appeals process. 

As a result, numerous organizations, including NOVA, participated in a three-day 

summit with VA officials and continue to participate in ongoing meetings to discuss 

appeals reform. Deputy Secretary Sloan Gibson charged the group with developing 

an appeals process that is timely, fair, easy to understand, transparent, and preserves veterans’ rights. 

One issue raised by NOVA and other stakeholders is the need for all accredited 

representatives to have complete access to clients’ electronic files. This issue has 

been a NOVA priority since the advent of the Veterans Benefits Management SysVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00103 Fmt 6633 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
100 

tem (VBMS). On April 13, 2016, VA issued a memorandum instructing regional office personnel to process attorneys and agents for the background checks required 

for access. While we appreciate VA’s response and look forward to implementation, 

NOVA maintains full access must be achieved for any reform to be successful and 

VA must commit to ongoing improvements to existing electronic systems that are 

critical to meaningful representation. 

NOVA appreciates the opportunity to have a seat at this table and participate in 

the dialog. However, as set forth in more detail below, while NOVA supports the 

concept of improving the appeals process for veterans and endorses several features 

of the proposed reform, there remains areas of serious concern that require additional congressional scrutiny. 

LEGISLATIVE PROVISIONS NOVA SUPPORTS

Requirements for detailed notice of the decision are included in the statute. 

The declining quality of VA rating decisions and notice has been cited by stakeholders numerous times over the years as the primary problem in the claims process. Efforts by VA to improve notice have been unsuccessful. The participants in 

VA’s appeals summit agreed that detailed notice of the rating decision is critical to 

making an informed decision regarding further review. Proper notice allows a veteran to understand the reasons for the underlying rating decision and enables an 

advocate to provide a veteran with the best possible advice on the evidence needed 

to prove a claim. 

The proposed language to amend 38 U.S.C. § 5104 is an important first step in 

reform, but only if properly implemented by VA. VA’s proposed process hinges heavily on a change VA has always had the authority to make, but has been unsuccessful to date in doing so. VA will need to commit to extensive training of its regional 

office employees to provide adequate notice and well-written decisions. Without it, 

the new process could result in another backlog at the local level. 

Effective date protection is extended to BVA decisions. 

The draft proposal removes many procedural and due process protections for veterans. To a degree, the removal of these protections is offset by the primary benefit 

conferred to veterans: the ability to preserve the effective date of a claim denied in 

a BVA decision by filing a ‘‘supplemental claim’’ within a year of that denial (with 

no limit to the number of times the veteran can avail himself of this option). 

The legislation calls for the same process following a rating decision, but it does 

not meaningfully expand a veteran’s rights beyond what is already permitted under 

38 CFR § 3.156(b). NOVA supports this regulatory provision being included in the 

statute. Furthermore, NOVA recommends the provisions of 38 CFR § 3.156(c) also 

be codified in the statute as an important protection for the effective date of claims 

for veterans who find additional service records after the original claim. 

Allowing a veteran to file a supplemental claim following a BVA denial is a positive development, and we believe it must remain part of any reform package considered. It is not without a downside however. As mentioned below, without expansion 

to denials by the United States Court of Appeals for Veterans Claims, this proposal 

as written would likely dilute the court’s oversight function. 

The proposed bill eliminates redundant procedural steps. 

NOVA has historically supported the amendment of 38 U.S.C. § 7105 to eliminate 

the redundant requirements of a statement of the case (SOC) and substantive appeal. See, e.g., Veterans’ Dilemma: Navigating the Appeals System for Veterans 

Claims: Hearing Before the Subcommittee on Disability Assistance and Memorial 

Affairs of the House Committee on Veterans’ Affairs, 114th Cong., 1st Sess. 37, 112 

(2015)(statement of Kenneth M. Carpenter, Esq., Founding Member, National Organization of Veterans’ Advocates). NOVA maintains that, as a result of judicial review, the need for an SOC and affirming substantive appeal no longer exists. 

As the number of claims has risen, in turn resulting in more appeals, these procedures have become the source of growing delays. For example, VA reported in 2015 

an average of 405 days passed between filing of the notice of disagreement (NOD) 

and VA’s issuance of the SOC. Furthermore, the average days from the time of the 

substantive appeal to BVA certification was 630 days. Department of Veterans Affairs (VA) Appeals Data Requested by House Committee on Veterans’ Affairs Subcommittee on Disability Assistance and Memorial Affairs (January 2015). NOVA 

maintains that any minimal value in these procedural steps is far outweighed by 

the delays, which serve to age the evidence in the veteran’s file and drive the need 

for additional development through remand. 

Under the proposal, once the veteran determines he or she wishes to appeal to 

BVA, the NOD will serve as the only requirement to initiate an appeal. FurtherVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00104 Fmt 6633 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
101 

more, the notice elements statutorily required in this provision, if executed properly, 

improve upon the current notice and SOC. Elimination of post-NOD procedure will 

not only allow the veteran to get an appeal to BVA faster, it should free up VA personnel to decide and rate claims faster at the agency of original jurisdiction. 

A veteran is assured favorable findings made by VA will continue throughout the life 

of a claim/appeal. 

Newly created section 5104A mandates that any favorable findings made on behalf of a veteran are binding on all subsequent adjudicators within VA, absent clear 

and convincing evidence to the contrary. This provision not only protects a veteran 

during the adjudication process, it saves VA time because there will be no need to 

reconsider resolved elements of a claim in subsequent decisions. 

A veteran retains the right to engage an attorney. 

Under existing 38 U.S.C. § 5904, a veteran may enter into a fee agreement with 

an attorney or agent at the time the NOD is filed. The proposed bill changes that 

language to allow a veteran to exercise this right at the time the initial rating decision is issued. Since VA is now providing more than one adjudicatory choice to a 

veteran after the initial decision, it makes sense that a veteran should have the 

freedom and personal choice to engage an attorney at that time to obtain counsel 

on the best option to choose. 

LEGISLATIVE PROVISIONS OF CONCERN TO NOVA

The draft bill limits effective date relief after judicial review. 

It is inconsistent to limit effective date relief solely to decisions of the agency of 

original jurisdiction and BVA. Specifically, under the draft bill, a veteran who is dissatisfied with any rating decision has one year to seek higher level review, submit 

new evidence in the form of a supplemental claim, or file an appeal to BVA, while 

preserving the effective date of the first claim. The proposal also allows for the same 

one-year period after a BVA decision to submit new evidence in the form of a supplemental claim. However, there is no such allowance for the same one-year period 

after a final decision of the United States Court of Appeals for Veterans Claims. 

NOVA believes this limitation will result in far fewer veterans exercising their 

hard-fought right of judicial review, because it is rare that a conscientious advocate 

would risk the loss of an effective date by appealing to the court when the effective 

date could be preserved with the submission of ‘‘new and relevant’’ evidence. 

NOVA therefore recommends section (a)(2)(E) be added to 38 U.S.C. § 5110: ‘‘(E) 

a supplemental claim under section 5108 of this title within one year of any final 

decision issued by the United States Court of Appeals for Veterans Claims.’’ 

Furthermore, VA has taken the position during its appeals summit meetings that 

a veteran could not simultaneously seek review of a BVA denial before the United 

States Court of Appeals for Veterans Claims and exercise his or her right to submit 

new evidence before VA within a year of that decision to preserve the original effective date. Under the current appeals structure, a veteran may seek judicial review 

and file a reopened claim as contemplated under the existing version of section 

5108. 

By foreclosing the opportunity to pursue both avenues of relief, VA is forcing a 

veteran to choose between seeking review of legal error in BVA’s decision or filing 

a supplemental claim in the hope of preserving the original effective date. Such a 

result is not only contrary to the veteran-friendly scheme designed by Congress, it 

potentially prevents the court from correcting prejudicial legal errors, e.g., statutory 

violations or misinterpretations of law. 

To remedy this situation, Congress should add the following language to 38 U.S.C. 

§ 5108: 

After a decision of the Board of Veterans’ Appeals that disallows a claim, 

nothing in this title shall be construed to limit the right to pursue at the 

same time both (i) an appeal of such Board decision to the United States 

Court of Appeals for Veterans Claims under chapter 72 of this title and (ii) 

a supplemental claim under this section seeking readjudication of the claim 

disallowed by such Board decision. 

Furthermore, under 38 U.S.C. § 5110, subsection (a)(3) should be redesignated as 

subsection (a)(4) and the following subsection (a)(3) be added: 

(3) For purposes of subsection (a)(2), a claim is continuously pursued by filing a supplemental claim under section 5108 of this title within one year 

of a decision of the Board of Veterans’ Appeals without regard to either (i) 

the filing under chapter 72 of this title of a notice of appeal of such Board 

102 

decision or (ii) the final decision of the Court of Appeals for Veterans 

Claims under chapter 72 of this title. 

Proper docket management is essential to ensure veterans receive equal treatment. 

This proposal creates one docket at BVA for cases in which a veteran requests 

a hearing or submits evidence following an NOD and another docket for cases in 

which nothing is added to the record after the NOD. We disagree with the creation 

of two dockets, as there is simply no good reason to treat these cases differently. 

We have seen from VA’s past treatment of claims not defined as part of ‘‘the backlog’’ that, whatever VA’s current intent may be, if a law creates an incentive for one 

kind of case to be adjudicated over another type of case, that is what will occur. 

Veterans who request a hearing or submit evidence should not be punished with a 

longer wait. We therefore recommend that there be only one docket at BVA, and 

that all cases before BVA be worked in docket order. 

At the very least, if two dockets are created, a formula needs to be developed for 

docket management and included in section 7107. A formula is necessary to ensure 

every case is in a measurable ‘‘lane,’’ so data can be collected and accountability 

achieved. VA should be required to provide stated goals for timely adjudication of 

both dockets as well as a formula. In the alternative, there should be language to 

require VA to create such a formula within a reasonable period after enactment to 

ensure dockets are maintained fairly. 

Furthermore, if two dockets are created, VA should allow a veteran who chooses 

to submit ‘‘evidence only’’ to join the ‘‘non-hearing’’ docket. Given that this evidence 

will not trigger any duty to assist obligation for BVA, there is no reason BVA cannot 

consider these appeals in the ‘‘non-hearing’’ lane. Under this scenario, NOVA recommends 38 U.S.C. § 7107(a) be amended to read as follows: 

(a) DOCKETS—IN GENERAL.—The Board shall maintain two separate dockets. A non-hearing docket shall be maintained for cases in which (1) no 

Board hearing is requested and no evidence is submitted or (2) no Board 

hearing is requested and evidence is submitted. A separate and distinct 

hearing option docket shall be maintained for cases in which a Board hearing is requested. Except as provided in subsection (b), each case before the 

Board will be decided in regular order according to its respective place on 

the Board’s non-hearing docket or hearing docket. 

Section 7105 as rewritten unnecessarily burdens veterans. 

NOVA maintains section 7105 as rewritten is too restrictive. The United States 

Court of Appeals for the Federal Circuit recently upheld VA’s standard forms regulations, to include 38 CFR § 20.201. Veterans Justice Group, LLC, et al. v. Secretary 

of Veterans Affairs, No. 2015–7021 (April 7, 2016). Under 38 CFR § 20.201(a)(4), a 

veteran is required to specify those determinations with which he disagrees or 

‘‘clearly indicate’’ his intent to appeal all issues. 

By contrast, newly drafted section 7105(b)(2) requires the claimant to set forth 

‘‘specific allegations of error of fact or law.’’ This standard places a higher burden 

on the claimant as a predicate for a valid NOD. While NOVA understands VA intends for the NOD to be the sole vehicle to initiate an appeal, requiring veterans 

to provide ‘‘specific allegations of error of fact or law’’ is not veteran-friendly and 

is particularly detrimental to pro se veterans. Because the current standard NOD 

form does not require the level of specificity contained in this provision, NOVA recommends the veteran only be required to specify the determinations with which he 

disagrees in the NOD. 

Section 7105(b)(3) also puts a burden on veterans at the time an NOD is filed by 

requiring the veteran to make a decision at that moment about whether a BVA 

hearing is warranted and whether any evidence will ever be submitted. Given that 

veterans often are unrepresented until after the filing of an NOD, there is no reason 

to require that irreversible legal decisions be made at that exact moment. NOVA 

therefore recommends that the proposed language be changed to allow a veteran to 

decide to submit evidence or request a BVA hearing up until the date a decision 

is actually issued by BVA. 

Related to this concept is the question of ‘‘lane-changing,’’ both in the ‘‘middle 

lane’’ and at BVA. During the appeals summit meeting, VA stated that a veteran 

would be able to switch lanes. More clarity is needed on the scope of this concept. 

Finally, the provision allowing BVA to ‘‘dismiss’’ an appeal because the NOD is 

deemed insufficient is a troublesome one, as it is unclear what protections a veteran 

whose appeal is dismissed would receive. NOVA therefore recommends 38 U.S.C. 

§ 7105(d) either be stricken in its entirety or revised to read as follows: ‘‘The Board 

of Veterans’ Appeals will not deny any appeal which fails to allege error of fact or 

103 

law in the decision being appealed without providing the claimant with notice and 

an opportunity to cure the defect.’’ 

The veteran should have the ability to submit evidence until BVA issues a decision. 

Section 7113(b)(2)(A)(ii) as written provides for evidence to be submitted at BVA 

‘‘within 90 days following receipt of the notice of disagreement.’’ This provision is 

too restrictive; if the case is waiting to be reviewed by BVA, it is more veteranfriendly (and does not unduly burden BVA) for that period to be open until the decision is made. Therefore, NOVA recommends 38 U.S.C. § 7113(b)(2)(A)(ii) be amended to read as follows: ‘‘Evidence submitted by the appellant and his or her representative, if any, within 90 days following receipt of the notice of disagreement 

or until the Board issues a decision.’’ 

VA should only require ‘‘new’’ evidence for supplemental claims. 

During the course of the appeals summit meetings, there was general agreement 

that the standard of ‘‘new and material’’ should be eliminated. There was significant 

discussion on this topic, with the stakeholders generally agreeing the standard 

should be ‘‘new’’ only. VA has inserted the term ‘‘relevant’’ to replace ‘‘material.’’ 

Although VA officials have repeatedly stated that the ‘‘relevant’’ evidence standard would be much easier to meet than the ‘‘material’’ standard, NOVA maintains 

merely trading ‘‘relevant’’ for ‘‘material’’ will not significantly reduce the adjudication burden on VA. Removing ‘‘relevant’’ allows VA to adjudicate the merits every 

time and eliminates the need to make a threshold determination. 

Therefore, NOVA recommends the words ‘‘and relevant’’ be deleted from 38 U.S.C. 

§ 5108 and the definition of ‘‘relevant’’ found at 38 U.S.C. § 101(35) be stricken. 

It needs to be clear BVA’s review is de novo. 

While BVA views itself as an appellate body, its function has always been to provide de novo review of the agency of original jurisdiction’s decisions. It must continue to conduct de novo review, find facts, apply relevant law, and issue new decisions. Therefore, NOVA recommends the term ‘‘de novo’’ be added as follows: 

38 U.S.C. § 5103B(c)(2)—If the Board, during a de novo review on appeal 

of an agency of original jurisdiction to satisfy its duties under section 5103A 

of this title, and that error occurred prior to notice in accordance with section 5104 of the agency of original jurisdiction decision on appeal, unless 

the claim can be granted in full, the Board shall remand the claim to the 

agency of original jurisdiction for correction of such error and readjudication. 

38 U.S.C. § 7105(a)—Appellate de novo review will be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary. 

38 U.S.C. § 7105(b)(2)—Notices of disagreement for de novo review must 

be in writing...

VA should clarify the veteran’s right to be heard and to submit evidence. 

The stakeholders participating in the appeals summit meetings insisted VA not 

eradicate the veteran’s right to be heard and submit evidence before BVA. The language needs to be stronger to indicate the right to a hearing and to submit evidence 

is mandatory, not discretionary. Therefore, NOVA recommends the following sentence be added at the beginning of section 7105(b)(3): ‘‘The claimant shall have the 

right to a hearing before BVA and the right to submit evidence.’’ 

ADDITIONAL CONCERNS

The current proposal ignores fundamental flaws in the system. 

The proposed framework deals largely with the process of filing claims and appealing adverse decisions. Successful execution of VA’s proposed process hinges on 

its ability to consistently meet its goals of adjudicating and issuing decisions in the 

125-day window identified in its ‘‘middle lane’’ and deciding appeals within the oneyear period before BVA. As demonstrated with the prior backlog of original claims 

and scheduling of medical appointments, VA often struggles to meet its own internal 

goals to the detriment of veterans. 

Furthermore, while focusing solely on process, the proposal is devoid of reform to 

the foundational underpinning of the claims adjudication and appeals process, i.e., 

the need for an adequate medical examination and opinion. At the January 2013 

hearing addressing the appeals process, BVA acknowledged the problem: ‘‘The adequacy of medical examinations and opinions, such as those with incomplete findings 

or supporting rationale for an opinion, has remained one of the most frequent reasons for remand.’’ Why Are Veterans Waiting Years on Appeal?: A Review of the PostDecision Process for Appealed Veterans’ Disability Benefits Claims: Hearing Before 

104 

the Subcommittee on Disability Assistance and Memorial Affairs of the House Committee on Veterans’ Affairs, 113th Congress, 1st Sess. 23 (2013)(prepared statement 

of Laura H. Eskenaki, Executive in Charge, Board of Veterans’ Appeals). Two years 

later, the Subcommittee on Disability Assistance and Memorial Affairs requested 

appeals data from VA, to include the top five remand reasons for the six fiscal years 

between 2009–2014. While not particularly detailed, in five of the six years, ‘‘nexus 

opinion’’ was listed as a top five reason. Department of Veterans Affairs (VA) Appeals 

Data Requested by House Committee on Veterans’ Affairs Subcommittee on Disability 

Assistance and Memorial Affairs (January 2015). Other consistently reported reasons included ‘‘incomplete/inadequate findings,’’ ‘‘current findings (medical examination/opinion),’’ and ‘‘no VA examination conducted.’’ Id. 

While VA often cites the veteran’s submission of evidence as triggering the need 

for additional development, the reality is VA has consistently demonstrated difficulty fulfilling its fundamental obligation to provide veterans with adequate medical examinations and opinions in the first instance. Without substantive reform to 

this process, to include consideration of a greater role for private and treating physician evidence, it is unlikely procedural reform alone can solve systemic problems. 

The proposal fails to address how the pending inventory will be resolved. 

Although stakeholders and VA flagged the issue of how the pending inventory will 

be addressed if extensive appeals reform is passed as an area of concern needing 

resolution, there was not time to fully consider this issue in the first round of meetings. Although one subsequent shorter meeting was convened for consideration of 

this issue, no significant agreement was reached. Given that the 455,000 pending 

appeals are in various stages of the appeals process and greatly affect the resources 

required by VA, this issue must be resolved. Veterans who have already been waiting for many years must not be denied a fair resolution to their pending appeals 

while newer appeals are being handled faster in a simplified system. 

DISCUSSION DRAFT OF VA PROPOSAL TO MODIFY REQUIREMENTS UNDER WHICH VA IS

REQUIRED TO PROVIDE COMPENSATION AND PENSION EXAMINATIONS TO VETERANS

SEEKING DISABILTY BENEFITS

NOVA opposes VA’s draft proposal to heighten the evidentiary threshold for medical examinations and opinions under 38 U.S.C. § 5103A(d)(2), which was originally 

added as part of the Veterans Claims Assistance Act of 2000 and clarified VA’s duty 

to assist the veteran in obtaining the evidence necessary to substantiate the claim. 

VA’s proposed changes would require a veteran to provide ‘‘objective evidence’’ of inservice incurrence. VA explained its intent, as well as what constitutes ‘‘objective 

evidence,’’ in its 2017 budget proposal: 

Clarify Evidentiary Threshold at Which VA is Required to Provide a Medical Examination. This proposal seeks to amend 38 U.S.C. § 5103A(d) to 

clarify the evidentiary threshold for which VA, under its duty to assist obligation, is required to request a medical examination for compensation 

claims. This amendment would clarify section 5103A(d)(2) to require, prior 

to providing a medical exam, the existence of objective evidence establishing 

that the Veteran experienced an event, injury, or disease during military 

service. VA would still consider lay evidence as sufficient to show a current 

disability or persistent symptoms of a disability. However, except in special 

circumstances, objective evidence such as medical records, service records, 

accident reports, etc., must also be of record to trigger an exam. Benefit 

savings to the Compensation and Pensions account are estimated to be 

$120.1 million in 2017, $124.9 million in 2018, $650.3 million over 5 years 

and $1.4 billion over 10 years. 

Department of Veterans Affairs, Congressional Submission, FY 2017, Vol. III at 

VBA–78 (February 9, 2017). Not only is this provision in complete opposition to the 

veterans-friendly benefits scheme designed by Congress, such a heightened standard 

would effectively shut out many veterans who are not entitled to the relaxed standards of 38 U.S.C. § 1154(b) as combat veterans. Many in-service symptoms or incidents may not be documented because a veteran does not consider them serious 

enough to require treatment or in some instances, e.g., psychological symptoms, may 

choose not to report them for fear of demotion or separation. 

While VA seeks this change to effectuate cost savings, as noted above, other measures should be considered to improve the system, to ensure veterans obtain adequate medical examinations and opinions, and to ultimately provide cost savings. 

105 

CONCLUSION

NOVA shares VA’s concern that veterans wait too long for a final and fair decision on appeal. NOVA welcomes the opportunity to work with VA and this Committee to ensure a fair and comprehensive reform of the system. NOVA further recommends adoption of the revisions outlined in our testimony. 

In addition, NOVA opposes VA’s draft proposal that revises the evidentiary 

threshold for medical examinations and opinions. 

Mr. Chairman, we would like to thank you again for allowing us to address these 

proposed bills. I would be pleased to take any questions. 

Chairman ISAKSON. Thank you very much for your testimony. 

Master Sergeant Ensminger. 

STATEMENT OF JEROME M. ENSMINGER, MSGT (RET.), 

U.S. MARINE CORPS 

Mr. ENSMINGER. Good afternoon, Mr. Chairman, Ranking Member Blumenthal, and to all the esteemed Members of this Committee. I want to expressly thank Chairman Isakson for including 

S. 2888 in this legislative hearing. 

My name is Jerry Ensminger. I am a retired U.S. Marine who 

spent more than 11 of my 241⁄2 years of service at Camp Lejeune, 

NC. 

I would like to commend both Senators Burr and Tillis for writing and introducing this bill. This bill confirms to the hundreds of 

thousands of Marines, sailors, their families, and the thousands of 

civilian employees who were negligently exposed to the highest levels of harmful contaminants ever recorded in a major drinking 

water system, that the U.S. Senate delegation of North Carolina 

has our backs. 

Not only is this legislation another step in rectifying the gross injustice committed against the Camp Lejeune victims, it also has 

the potential of saving the American taxpayers hundreds of thousands, if not millions of dollars in the future. This bill, when 

passed, will require the Veterans Administration, or the VA, to utilize the Agency for Toxic Substances and Disease Registry, or 

ATSDR, rather than exclusively contracting external government 

entities to perform evaluations or opinions on health effects related 

to the Camp Lejeune drinking water issue. 

ATSDR was created and mandated by Congress in 1980 to investigate, evaluate, and remediate human exposures to potentially 

harmful contaminants found at National Priority listed sites, such 

as Camp Lejeune. We all need to take a step back and ask ourselves why the VA refuses to utilize these preeminent governmental institutions, such as ATSDR, or the National Centers for 

Environmental Health, or the National Institute for Environmental 

Health Sciences, or NIEHS, for those evaluations and/or opinions 

relating to issues where veterans have been exposed to hazardous 

substances. Why does the VA automatically and exclusively resort 

to contracting external governmental entities for these evaluations? 

Here are some findings we have made concerning those questions. You can draw your own conclusions. One, when the VA contracts an external entity to provide them with an evaluation or an 

opinion, the VA writes a charge to the contractor. This is where the 

legitimacy of this practice comes into serious question. Every Member of this Committee is a politician, and the best analogy that I 

can use to describe the flaws in this process is political poll quesVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00109 Fmt 6633 Sfmt 6601 Z:\ACTIVE\052416.TXT PAULIN
106 

tions. A pollster with an agenda can write poll questions in a fashion which would provide them the response or responses they desire. There is no difference when writing a charge to a contractor. 

The person or persons writing the charge can fashion it in such a 

way or manner as to narrow the final evaluation or opinion. 

Number 2, none of the work performed by these external governmental entities falls under the Freedom of Information Act. We 

have no access to the procedures or what scientific materials the 

contractor used in creating their evaluations. Where is the transparency in this process? There is none. 

Every time the VA contracts an external government entity for 

an evaluation or opinion, the American taxpayer is paying double. 

We are paying to maintain, equip, and staff our governmental 

agencies who are fully capable of performing these tasks. We are 

also paying the VA’s contracted price for these external government 

entities to execute this work. 

Several years ago, I asked VA’s Dr. Teri Walters why the VA 

constantly insists on using external government entities when 

seeking evaluations or opinions regarding potentially harmful exposures. She claimed that the VA uses those external contractors for 

such work because the veterans would not trust the work product 

of a governmental agency. Her response almost made me choke. 

Of course, most veterans do not know that the VA, an interested 

party, writes a charge to an external governmental entity, another 

interested party, to provide them with an evaluation. On the other 

hand, governmental agencies, such as ATSDR, NCEH, and the 

NIEHS, are uninterested parties who would give an evaluation 

based on available scientific evidence instead of a charge which 

could restrict the evaluation to the desires of the contractee. Furthermore, all of the procedures and scientific materials utilized by 

the aforementioned governmental agencies would be accessible 

under the Freedom of Information Act. 

Mr. Chairman, if the VA truly had the best interest of Camp 

Lejeune veterans and their families at heart, they would never 

have created and utilized the training PowerPoint that I have attached to my written testimony as Attachment A. This PowerPoint 

presentation was utilized to train the VA clinicians who would be 

screening Camp Lejeune veterans and their family members pursuant to the passage and the President signing the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012. 

This PowerPoint not only regurgitated outdated and disputed 

science, it reads like a road map for how to deny veterans and their 

families the care outlined in the law. 

Finally, the description of Dr. Walters’ vision of a Camp Lejeune 

veteran’s wife, which shows on Slides 10 and 12 of Attachment A, 

went beyond the pale. It was demeaning and outright despicable. 

What makes this even worse is the fact that when Dr. Walters was 

asked if this depiction was a real individual, she replied, ‘‘No. I 

took several actual individual cases and lumped them together to 

create that one example.’’ Does anyone need to wonder why we do 

not trust the VA? 

I challenge every Member of this Committee to research how 

much money the VA has expended since fiscal year 2012 on external governmental contracts for evaluations or opinions. I would 

107 

venture a guess that between Camp Lejeune and the C–123 aircraft Agent Orange issues alone, hundreds of thousands of taxpayers’ dollars were spent, a lot of money that could have been 

spent caring for our veterans rather than devising methods and attempts to cheat them out of the benefits they deserve. 

Thank you, and I look forward to answering any questions that 

you may have. 

[The prepared statement of Mr. Ensminger follows:] 

108 

PREPARED STATEMENT OF JEROME ENSMINGER, U.S. MARINE (RET.) 


524psENS1.eps
109 


524psENS2.eps
110 


524psENS3.eps
111 

Attachments: 

Attachment A—VA Training Power Point dated August 2013 

Attachment B—Director ATSDR letter dated October 22, 2010 

Attachment C—VA Camp Lejeune Task Force Roster (1) 

Attachment D—VA Camp Lejeune Task Force Roster (2) 


524psENS4.eps
112 

ATTACHMENT A—VA TRAINING POWER POINT DATED AUGUST 2013 


524psENS-A1.eps 524psENS-A2.eps
113 


524psENS-A3.eps 524psENS-A4.eps
114 


524psENS-A5.eps 524psENS-A6.eps
115 


524psENS-A7.eps 524psENS-A8.eps
116 


524psENS-A9.eps 524psENS-A10.eps
117 


524psENS-A11.eps 524psENS-A12.eps
118 


524psENS-A13.eps 524psENS-A14.eps
119 


524psENS-A15.eps 524psENS-A16.eps
120 


524psENS-A17.eps 524psENS-A18.eps
121 


524psENS-A19.eps 524psENS-A20.eps
122 


524psENS-A21.eps 524psENS-A22.eps
123 


524psENS-A23.eps 524psENS-A24.eps
124 

ATTACHMENT B—DIRECTOR ATSDR LETTER DATED OCTOBER 22, 2010 


524psENS30.eps
125 


524psENS31.eps
126 


524psENS32.eps
127 


524psENS33.eps
128 

ATTACHMENT C—VA CAMP LEJEUNE TASK FORCE ROSTER (1) 


524psENS-C1.eps
129 

ATTACHMENT D—VA CAMP LEJEUNE TASK FORCE ROSTER (2) 

Chairman ISAKSON. Thank you very much for your compelling 

testimony, Mr. Ensminger. Thank you. 

I will acknowledge at the outset the kind words you said about 

Senator Tillis. He was not in the room when you said them, so I 

want him to be sure to know you bragged about him. 

Senator TILLIS. Would you mind repeating those comments? 

[Laughter.] 

Chairman ISAKSON. Let me make sure I have got this. With the 

exception of Sergeant Ensminger, every one of you testified in support of the veterans’ appeal process, the new one, is that right? 

Mr. FUENTES. That is right. 

Ms. RAUBER. Not completely. 

Chairman ISAKSON. But partially. 

Ms. RAUBER. Partially. 

Mr. FUENTES. Mr. Chairman, if I may, we do not support and 

that is because we feel that there are certain aspects of it that need 

to first be addressed, most importantly, like you explained in the 

beginning, the 450,000 pending. 

Chairman ISAKSON. Let me finish. I think you will see where I 

am going with this. I appreciate you acknowledging that. 

We all want the appeals process to be improved, and I know you 

all have had input and collaborated with the VA, trying to make 

a new policy work. Is that right? In your testimony, Mr. Fuentes— 

and I want to make sure I have got this right—you said you applaud what is being done on the appeals, but you want to make 

sure, first of all, it is paid for; second of all, that the personnel are 

there to take care of the old claims and the old claims are resolved 

as a part of reforming the appeals process. Is that correct? 

Mr. FUENTES. That is correct, Mr. Chairman. 

Chairman ISAKSON. I think each and every one of you made an 

oblique reference to the same type thing, that although reforming 


524psENS36.eps
130 

the process prospectively is something we all want to do, we have 

445,000, or 450,000 veterans still waiting for a final appeal disposition. We need to make sure whatever we do does not leave them 

out, but includes a way for us to get them taken care of. So, I want 

you to take that back to the Secretary and be sure to let them 

know about that. 

Mr. FUENTES. Yes, sir. 

Chairman ISAKSON. Second, and I think the VFW said it, if I 

have got it right, is the concern about Choice being a move away 

from VA health care to the extent that it is privatization of the 

Veterans Administration health services. There is no Member of 

our Committee that I know of who has made a statement one way 

or another that it is in any way possible for anybody to believe that 

we are for privatizing the VA, first and foremost. 

I want to say that, at the risk of bragging about the Ranking 

Member, myself, and the other Members at the dais, if you read 

the Veterans First bill, it enhances Choice access for veterans to 

get provider agreements and things like that for care in the community, but it in no way moves toward the VA going out of business and privatizing the VA. Instead, it improves the Choice aspect 

and choices for you. Do you all understand that? 

[Witnesses nodding heads.] 

Chairman ISAKSON. Then please help us get the remaining few 

holds we have got on that bill in the Senate off our bill so we can 

get it to the floor and pass it, because it is a major reform of the 

VA that is going to make a significant effect and significant 

difference. 

Mr. Blake, you talked about the certification of adaptive mobility 

equipment, is that correct? 

Mr. BLAKE. Yes, sir. 

Chairman ISAKSON. I am always—I am an honest broker. I never 

leave things off the table. I have been approached by people who 

are concerned that to have a certification process might be a conflict of interest if a provider was certifying in competition with others who provide the same thing. Is there a protection to see that 

does not happen in the bill Mr. Moran has introduced? 

Mr. BLAKE. I think that there is a little bit of language that 

could still be refined in the bill to address that concern. I think it 

was inadvertently left in to potentially create a problem with conflict of interest. 

Mr. Chairman, I will just offer this. The amusing thing about the 

debate over this bill is we found that when you bring the business 

entities together and debate it, they hate each other and want to 

push each other out; that is what we have seen with this bill. We 

are trying to mitigate all of the conflict of interest problems to ensure that everybody is an honest broker and fair player in this, 

which is why we had argued for the changes we did in the House 

side bill. 

Chairman ISAKSON. Well, I know what you have been dealing 

with, because those issues rose to my level yesterday when I was 

made aware of them, so I thought I would bring them up in open 

hearing so everybody could deal with it forthrightly. 

Let me thank all of you for the tremendous work that you do for 

us and the Committee. The VSOs do a great job of keeping us on 

131 

track and on task. We all have the same goals, which are to make 

veterans health care more accessible and best for our veterans and 

see to it we do it in the best way for the taxpayers, as well. I thank 

each and every one of you for doing that. 

Mr. Ensminger, I appreciate what you said about Camp Lejeune 

and about Senator Tillis and Senator Burr, who have been outspoken critics to make sure we finally deal with those issues which 

long since should have been dealt with. I appreciate it very much. 

Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Mr. Chairman. I want to reaffirm my own feeling that the VSOs have been really instrumental 

in the past year’s efforts by the Congress and by the VA to improve 

performance, which includes eliminating delays as well as improving the quality of care. It also includes more community care, enabling veterans who have to wait too long or live too far from VA 

hospitals or other facilities to have access to the care that they 

need without having to wait. When it comes to medical care, time 

is not on our side. Time is never a good thing when the wait is only 

going to aggravate the medical condition. So, you have really been 

steadfast advocates and extraordinarily important in advising us, 

every one of your organizations, on how best to address improving 

the health care system, educational benefits, accountability within 

the VA, the home caregiver program, all of the reforms that are included in the Veterans First bill. 

One of the lessons learned is about VA construction, talking 

about taxpayer dollars. As you well know, every one of the major 

construction projects undertaken by the VA in the past several 

years has been way over budget and way behind schedule, the most 

egregious example being in Denver, where the cost overruns have 

totaled about $1 billion. That is money that could have been spent 

on veterans. 

In your testimony, Mr. Fuentes, you express support for the construction reform provisions in the discussion draft. I have told Secretary McDonald that I expect the Department to be much more 

transparent, as well as effective, with Congress and taxpayers who 

are footing the bill for this gross mismanagement that led to the 

delays and cost overruns at the Denver facility and at other facilities around the country. Denver is only the poster child. Tell me 

and your fellow veterans how these provisions will help to reform 

the process and eliminate those cost overruns. 

Mr. FUENTES. Thank you for the question, Senator. I think what 

this bill does is takes some lessons learned from Denver and from 

other facilities that had huge cost overruns and essentially ensures 

that the process is transparent, but also that it builds on those lessons learned, like improving the communication through the 

project management plan. So, it does not take a lot of lessons 

learned and we fully support it. 

Mr. CELLI. If I may add to that, one of the reasons The American 

Legion supports it is because it integrates a third-party oversight 

in a way that brings that focus in at the beginning of the process. 

When you create a design-build process, the design has to match 

the dollars that you say that you can build it for, and if that is 

askew at the very beginning and then there is no oversight 

throughout the process where you have got a client who wants difVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00135 Fmt 6633 Sfmt 6601 Z:\ACTIVE\052416.TXT PAULIN
132 

ferent things than what was in the original design-build, before you 

know it, you have got an unmanageable project. So, that is why we 

appreciate this bill which will bring additional oversight into that 

process. 

Senator BLUMENTHAL. Thank you both. 

Mr. Atizado, I want to second what has been said about the importance of reforming the appeals process. If you have a result in 

a trial court and it is done quickly but then you have to wait years, 

perhaps decades, for justice on an appeal, the speed of the result 

in the trial court is irrelevant, and the same principle applies to 

the VA adjudicatory process. You have made that point, I think, 

not necessarily in those words, but about the importance of reforming the appeals process. In fact, you said in your testimony before 

us today that to achieve reform in this appeals process is to achieve 

historic reform this year, and it should be this year. 

I understand there are some reservations. I hope you agree with 

me, and I hope members of the panel agree, that we can overcome 

those criticisms on the issue of cost, for example, so that we are 

not taking away from other VA programs, other reservations that 

have been mentioned. As usual, we, I think, will produce a better 

bill if we take account of those kinds of reservations. 

So, let me ask you, do you think it will be historic and important 

that we do this bill? 

Mr. ATIZADO. Thank you for that question, Ranking Member 

Blumenthal. I do agree it would be historic if we can enact a bill 

that every stakeholder who has been engaged gets their issues addressed in a satisfactory manner. 

I must say, though, I want to reiterate what was said, and I 

want to make sure it is highlighted. The manner in which the current bill was created, I think, is also quite extraordinary. Everybody came to the table with a clean slate, fully committed and fully 

leaning forward to try to address this problem. This is one of the 

reasons why we support the bill as it is currently drafted, notwithstanding the issues that are outstanding, but the fact that the people involved, the organizations involved, VA, their commitment, we 

believe we can—we have a real possibility to get this down the finish line. 

Senator BLUMENTHAL. Thank you very much. 

I might say, Mr. Chairman, just by way of a footnote to this conversation, that I understand that Secretary McDonald has issued 

a statement. Not my place to talk about it, but I think it has been 

made public and perhaps Deputy Gibson might be willing to share 

it with us. But I think it expresses regret for the remarks that 

were made. 

Chairman ISAKSON. You are recognized, Sloan. 

Mr. GIBSON. If I could just—do you want me up here? 

Chairman ISAKSON. Turn the microphone on. 

Senator TILLIS. Welcome to the team. [Laughter.] 

Mr. GIBSON. It does feel a whole lot different over here. 

[Laughter.] 

A statement from the Secretary dated today. ‘‘On Monday, I 

made some remarks on how we are working to improve veterans’ 

satisfaction with the care they receive from VA. It was never my 

intention to suggest that I do not take our mission of serving vetVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00136 Fmt 6633 Sfmt 6601 Z:\ACTIVE\052416.TXT PAULIN
133 

erans very seriously. In fact, improving access to care is my number 1 priority and the priority I have set for the entire Department. 

‘‘For the last 2 years, the huge majority of VA employees have 

worked tirelessly to improve the timeliness of the care and benefits 

we provide to veterans. As I have told Veterans Service Organizations, Members of Congress, and myriad other groups of veteran 

stakeholders, our goal is to ensure VA becomes the number 1 customer service organization in government. To do that, we are following many of the best practices of private sector health care providers and exceptional customer service organizations. At VA, we 

take our mission of caring for those who shall have borne the battle 

very seriously. We have the best and most noble mission in government. 

‘‘If my comments Monday led any veteran to believe that I or the 

dedicated workforce I am privileged to lead do not take that noble 

mission seriously, I deeply regret that. Nothing could be further 

from the truth. As we approach the Memorial Day holiday and pay 

tribute to the sacrifices of courageous men and women who placed 

the interests of others above their own, we at the VA remain focused on our mission to care for those who bravely served our 

Nation.’’ 

Thank you for the opportunity, Mr. Chairman. 

Chairman ISAKSON. Thank you, Sloan, and thank Secretary 

McDonald for that statement, which I think is most appropriate. 

Senator BLUMENTHAL. I second that sentiment. 

Chairman ISAKSON. Senator Tillis. 

Senator TILLIS. Thank you, Mr. Chair and Ranking Member, and 

really all the Members of this Committee to put forth legislation. 

We hope you all can help us work out a few of the kinks and get 

it passed into law. 

I also want to thank the Committee staff and the staff of all of 

our offices who we all know do a lot of the work to get these bills 

moving. 

I will be fairly brief. I think all of you all were present during 

my earlier comments. One thing I am really counting on you all to 

help us with is identify good ideas, it is a matter of timing; not so 

good ideas, it is a matter of evolving maybe the original aims of the 

bill, but I really, speaking for my office, want to make sure that 

you all know my door is wide open. We want to make sure that we 

deal with all the competing priorities, funding and otherwise, so 

that we can get this right, mainly for the sake of the veterans. 

On that note, just very quickly, for the bills that I have had any 

sponsorship in—I think that you have already heard me talk about 

the Care Veterans Deserve Act and how I think there are a lot of 

aims in there that we can reconcile with the current transformation program or figure out when and if they make sense. 

But more than anything else—I am not going to speak for Senator McCain, but speaking as a Member of this Committee and 

among members that I have spoken with, there has never been an 

attempt to privatize the VA for the reasons that I have said before. 

It does not make sense. There is a great setting. If you have done 

as I have, gone to all your VA hospitals, all your health care centers, all the places where care is provided to veterans, when veterans come together in a group, there is a value to that that even 

134 

goes beyond the medical treatment that they receive in this facility, 

oftentimes from a person who is a veteran themselves. 

So, if you have any other, outside of what you have documented 

in your written testimony, I would be happy to hear it. I do appreciate the fact that I believe most of the bills that we are working 

on, you all generally support. We need to work on appropriations 

and those sorts of things. 

Mr. Ensminger, I thank you for being here. I was a minute late 

into your testimony. Apparently, I missed the best part, but—— 

[Laughter.] 

Senator TILLIS. No, in all seriousness, I know this is deeply personal to you. This is something that Senator Burr has been working on for quite some time. My predecessor worked on it. I actually 

think this is an instance where the ATSDR, it makes sense to really put the onus back on the VA. If they want to provide science or 

evidence-based counters to the ATSDR’s decisions, that is OK, but 

I really think in this case that we should bias our decisions to go 

along with their recommendations, and if on an exception basis the 

Department wants to come back, I would be open to that, where 

the science would lead us there. But, I think the benefit of the 

doubt always has to go to the veterans, particularly with the situation that happened down at Camp Lejeune. I thank you for your 

continued work. We are going to continue to work on this and I am 

optimistic that we will produce a good outcome. 

Mr. ENSMINGER. Thank you, Senator. 

Senator TILLIS. The last thing I will say relates to Senator 

Blumenthal’s questions about capital projects and construction. 

There are a lot of things that are working well now when we use 

contemporary models for building facilities. Since I have been Senator—these were decisions made before I was elected, but the outcome has been three new health care centers in North Carolina, increasing capacity that came online over the last 15 or 16 months 

by a million square feet in three different facilities in Fayetteville, 

Kernersville, and Charlotte. I am very proud of that. These are 

projects that are coming in on time. They are coming in on budget. 

We have got to make sure that we fund the operational till that 

is going to be necessary for them to fully build out their capabilities. There is some good work being done there and now they are 

having to correct some of the mistakes that were made in Denver 

and other places. But, I think, on the whole, if we follow those 

models, we are going to be in a lot better place. Now what we have 

to do is figure out how to modernize in some cases 70-year-old facilities like down in Fayetteville to get them up to modern standards, the standards that our veterans deserve. 

But, the last thing I want to leave you with is a commercial. This 

is not a political commercial, Mr. Chair. Our caseload down in 

North Carolina—we have a couple of dozen people that work on 

cases. We have opened and closed literally thousands of veterans’ 

cases in the 15 months that I have been in the Senate. I need your 

help in making sure—we have gotten to a point now where we are 

trying to reach out and find people who may not know that they 

can get help from their Congressional member or their Senator and 

we need to make sure that we get the word out that you contact 

the VA, you contact any area of government and hope that you are 

135 

on a good path to getting your needs fulfilled. But, if the first call 

or two does not look like it is going in the right direction, the next 

call should be to your Congressional member’s office. 

For the Senate, I know that is as easy as going to the Internet 

and looking up Tillis.senate.gov. You can open a case there. We 

need to get the VSOs to communicate that to veterans and use us 

as a facilitator for helping you navigate these challenges until we 

get to a point to where, hopefully, that will be a rare circumstance. 

Right now, we are dealing with thousands of those a year and that 

is something that I want the veterans of North Carolina, and I 

speak, I believe, for all Congressional members, it is a service that 

they should take advantage of, so I would appreciate your help getting the word out. 

Thank you, Mr. Chair. 

Chairman ISAKSON. Thank you, Senator Tillis. 

I want to thank everyone from the VSOs for their testimony and 

the members of the Veterans Administration for their testimony in 

the previous panel. We will continue to work on this legislation. 

You were very helpful to us and very effective in your testimony. 

We appreciate your being here today. 

The Senate Veterans’ Affairs Committee stands adjourned. 

[Whereupon, at 4:32 p.m., the Committee was adjourned.] 

RESPONSE TO POSTHEARING QUESTIONS SUBMITTED BY HON. MAZIE K. HIRONO TO

CARLOS FUENTES, SENIOR LEGISLATIVE ASSOCIATE, VETERANS OF FOREIGN WARS

MENTAL HEALTH SERVICES PROVIDED TO FEMALE VETERANS

Question 1. Mr Fuentes, in your testimony you reference a survey of women veterans by the VFW. 40% of respondents indicated that they are currently using mental health care services, or have in the past. Have you received any input from your 

members about their satisfaction with mental health services that they have 

accessed? Have your members responded with any recommendations on improving 

mental health care for women veterans offered by the VA? 

Response. Overall, 64 percent of the women veterans who responded to the VFW’s 

survey indicated they were at least ‘‘somewhat’’ satisfied with their VA health care 

experience. Women veterans who reported they used VA mental health were slightly 

less likely to be satisfied with their overall health care experience—60 percent. 

However, women veterans who used VA mental health care were more likely than 

the the overall average to prefer to receive their care at VA instead of private sector 

doctors (57 percent vs. 53 percent). This indicates that women veterans who use VA 

mental health may see needs for improvement, but prefer to receive their mental 

health at VA rather than outside doctors. 

The VFW did not ask for specific recommendation on how women veterans would 

improve VA mental health, but noticed a general trend in comments that women 

veteran would like more gender specific care. A particular example was a veteran 

who recommended that VA hold group therapy for sexual assault victims who suffer 

from mental health conditions instead of requiring sexual assault victims to share 

their stories in groups with veterans with combat related mental health conditions. 

PERMANENT EXPANSION OF THE CHOICE PROGRAM

Question 2. Your testimony states that VFW has serious concerns with permanently expanding the Choice program, and have stated in your testimony that 

Choice has yet to achieve what Congress envisioned when legislation was passed in 

2014. VFW has also received a number of complaints from Veterans who either face 

delays in receiving care through the Choice Program, or experience billing problems. 

Have your members indicated to you that they prefer care from the VA, or through 

the Choice Program? What if any recommendations do you have to address the disparate and uncoordinated nature of care that your members have reported? 

Response. VFW members believe VA must leverage the capacity of community 

doctors to meet the growing demand on its health care system. With nearly 80 percent of VFW members reporting they use VA health care and the majority of them 

136 

reporting that they prefer to get their care at VA health care instead of private sector doctors, VFW members believe that VA must serve at the primary provider and 

coordinator of care for veterans. As the coordinator of care for veterans, VA would 

be charged with ensuring veterans receive timely, high-quality, comprehensive and 

veterans centric care. 

RESOURCES TO ADDRESS CLAIMS BACKLOG

Question 3. You have indicated that VFW would not endorse any changes to the 

benefits appeals process until Congress allocates sufficient resources for VA to implement a comprehensive plan to address the current backlog of pending appeals. 

How would you, in this instance, define ‘‘sufficient resources’’ that must be provided 

to reduce the appeals backlog? 

Response. The VFW believes that VA must make a concerted effort to hire more 

staff and improve current systems and processes to ensure veterans in the current 

appeals backlog do not have to wait 5 years for a decision on their appeals. In order 

to implement new IT systems and hire more staff, the Independent Budget recommends Congress provide $23.1 million in fiscal year 2017 for the Board of Veterans Appeals. The Independent Budget has also recommended that Congress provide VA’s compensation service $171 million in fiscal year 2017 to hire 1,700 new 

full time equivalent employees so VA can make progress in its workload of initial 

appeals. 

(137) 

A P P E N D I X 

PREPARED STATEMENT OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 

AFL–CIO 

Chairman Isakson, Ranking Member Blumenthal, Members of the Committee, 

thank you for the opportunity to present the views of the American Federation of 

Government Employees, AFL–CIO and its National Veterans Affairs Council 

(AFGE). AFGE represents nearly 700,000 non-management Federal employees. 

Over forty percent of AFGE members are veterans working in the VA, Department 

of Defense, Department of Homeland Security and many other agencies. AFGE represents nearly 230,000 VA employees working in the Veterans Health Administration (VHA), Veterans Benefits Administration (VBA), and National Cemetery Administration (NCA). 

S. 2049

AFGE supports efforts to provide non-Departmental providers with information 

that enable them to provide quality, appropriate care to veterans when non-VA care 

is needed. However, AFGE is very concerned about the cost of setting up such a 

massive non-VA continuing medical education (CME) program and its impact on 

VA’s information technology system and the availability of funds for CME for VA’s 

own providers. Therefore, AFGE urges the Committee to address the more urgent 

and longstanding problem of lack of adequate support for the CME needs of VA providers. VA physicians and dentists are entitled to a woefully inadequate amount of 

CME reimbursement under 38 U.S.C. 7411. The $1000 maximum reimbursement 

level has not been updated since 1991. Many other health care employers provide 

3–4 times as much reimbursement. Other VA medical professionals who also need 

CME to maintain their licenses and credentials often get no reimbursement because 

managers have complete discretion over this matter and frequently assert a lack of 

funds for CME. 

Alternative recommendations: 

• Amend 38 U.S.C. 7422 to provide VA physicians and dentists with a competitive 

amount of CME reimbursement. 

• Conduct oversight of the CME needs of other VA medical professionals. 

S. 2896

AFGE strongly opposes this bill to make the Choice Program permanent. AFGE 

believes that it is premature to establish a permanent Choice program at this time. 

AFGE urges the Committee to defer any action that would make what reports suggest is a flawed temporary program permanent halfway through its authorization 

period. Instead, Congress should conduct immediate oversight of the many serious 

problems that veterans are experiencing in trying to access non-VA care under the 

current pilot program. 

Congress established the current Choice program as a temporary fix to severe access problems. The current Choice program does not expire until the end of FY 

2017. It is too early to determine whether the current pilot program has been a success or failure, and whether its high price tag and adverse impact on VA’s own capacity justifies its continuation. 

Since enactment of the Choice Act, the Department has made significant progress 

toward its goal of hiring more front-line clinicians and support personnel who provide veterans with the exemplary health care services that they rate highly and 

strongly prefer. We also note that there is bipartisan support in the Committee to 

implement VA’s Congressionally-mandated plan to consolidate non-VA care programs. 

138 

Veterans deserve great care and strong accountability from VA and non-VA providers alike. Therefore, we strongly recommend that the Committee take adequate 

time to address the many troubling reports regarding the Choice Act that have been 

made by veterans and the VA health care personnel trying to assist them. These 

include the Choice Program’s alleged failure to provide community clinics with 

consults containing diagnoses and physician instructions, or alert veterans that 

their evaluations have been scheduled, or notify the VA that a non-VA appointment 

has been made. This last item has resulted in many wasted in-house appointment 

slots. 

In addition, many veterans are being harassed by bill collectors in connection with 

Choice Act care. Veterans face longer wait times for in-house VA care because the 

VA employees assisting them often have to spend hours on the phone trying to deal 

with HealthNet and TriWest. Similarly, short staffing at VA’s own primary clinics 

has worsened because staff have to be diverted to the time-consuming Choice referral process. AFGE has also received reports of providers under pressure to act outside the scope of their licenses to justify referrals to non-VA providers. 

Alternative recommendations: 

• Conduct additional oversight of impact of Choice on quality and access of nonVA care and on VA’s in-house capacity to provide timely care during the remainder 

of the pilot program period. • Expedite implementation of VA’s plan to consolidate non-VA care programs. 

DISCUSSION DRAFT ON VA PROPOSAL TO MODIFY REQUIREMENTS

RELATED TO COMP AND PEN EXAMS

AFGE strongly opposes this discussion draft bill. This bill would greatly increase 

the burden that veterans must meet to prove their claims. The proposed requirement for ‘‘objective evidence’’ would arbitrarily and significantly raise the evidentiary threshold for triggering a VA comp and pen exam. Without VA exams, 

many veterans will not be able to provide sufficient evidence of their meritorious 

claims. 

This draft bill is likely to result in additional appeals, impacting both the veteran 

waiting even longer to receive an accurate decision on his or her claim, and worsening the appeals backlog for other veterans with pending appeals. 

Thank you for considering the views of AFGE. 

PREPARED STATEMENT OF DIANE M. ZUMATTO, 

NATIONAL LEGISLATIVE DIRECTOR, AMVETS 

INTRODUCTION

Distinguished members of the Senate Veteran Affairs Committee, It is my pleasure, on behalf of AMVETS, to offer this statement on the following pending pieces 

of legislation: S 2919; S 2896; S 2888; S 2883; S 2679; S 2520; S 2487; S 2049 & 

various draft legislation. 

It is encouraging to acknowledge at this time that, despite the extraordinary sacrifices being asked of our men and women in uniform, the best and the brightest 

continue to step forward to answer the call of our Nation in its time of need. I know 

that each of you is aware of and appreciates the numerous issues of importance facing our military members, veterans, retirees, families, and survivors and for that 

AMVETS is extremely grateful. 

PENDING LEGISLATION

S. 2896, the Care Veterans Deserve Act of 2016—AMVETS strongly supports this 

legislation which seeks to: 

• eliminate the sunset date of the Veterans Choice Program; 

• expand eligibility for the program; and 

• to extend the operating hours for pharmacies & medical facilities 

The current program limitations severely impact the value of the program to veterans. This is especially true for those working veterans who are essentially forced 

to take time off from work in order to see a VA doctor and/or pick up a prescription 

from a VA pharmacy. 

Furthermore, AMVETS sees the Veterans Choice Program as a nearly perfect solution to the ongoing VA healthcare access problem. 

S. 2888, the Janey Ensminger Act of 2016—AMVETS supports this legislation because the issue of Toxic Wounds is a critically important to us, however, we are disVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00142 Fmt 6601 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
139 

appointed that Ft. McCleallan, as well as others, and its veterans have once again 

been ignored. (It is my understanding that there are approximately 140 military 

bases in CONUS that are on the EPA’s Superfund list.) This legislation seeks to, 

among other things: 

• require the Secretary, through the Agency for Toxic Substances & Disease Registry, to reveiew the relevant scientific literature related to exposure to toxins at 

Camp Lejeuen to specific illnesses or conditions incurred by those individuals; • determine each illness or condition for which there is evidence that exposure 

to toxins at Camp Lejeune may be a cause of; • categorize the evidence of the connection or the illness or condition to such exposure; • require the publication, in the Federal Register and on the DHSS website, a list 

of each illness or condition for which a determination is made; • require the Secretary to transfer $2,000,000 in 2017 & 2017 to be used to continue building and enhancing the claims processing system, eligibility system and 

web portal for the Camp Lejeune Family Member Program. 

S. 2883, Appropriate Care for Disabled Veterans Act of 2016—AMVETS supports 

this legislation which would extend the requirement of the VA Secretary to submit 

a report on the capacity of the VA to provide for the specialized treatment and rehabilitative needs of disabled veterans. 

S. 2679, Helping Veterans Exposed to Burn Pits Act—AMVETS fully supports this 

legislation which seeks to: establish a Center of Excellence in the prevention, diagnosis, mitigation, treatment and rehabilitation of health conditions relating to exposure to burn pits. 

AMVETS has consistently been a staunch supporter of burn pit legislation and 

we are very encouraged by the depth of this legislation, which would finally bring 

the appropriate recognition and treatment to veterans suffering the ill effects of 

burn pit exposure. 

Furthermore, AMVETS believes that it is absolutely critical that DOD and VA be 

required to work collaboratively on this important issue and that additional environmental hazards, such as: dust, sand and smoke will be included in the activities of 

the Center. 

S. 2520, Newborn Care Improvement Act—AMVETS does not have a position on 

this legislation. 

S. 2487, Female Veteran Suicide Prevention Act—Preventing veteran suicide has 

been, and continues to be, a top priority for AMVETS. It is for this reason that we 

fully support this important legislation which seeks to specifically identify mental 

health care and suicide prevention programs and metrics that better meet the needs 

of our female veterans. 

S. 2049, a bill to establish within the VA a continuing medical education program 

for non-department medical professionals who treat veterans and their family members to increase knowledge and recognition of medical conditions common to this 

population. AMVETS supports this bill because the ever growing expansion of veteran community care essentially necessitates a program of this kind to ensure that 

veterans receiving care in the community get the best and most informed care possible. 

S. 2919, the State Outreach for Local Veterans Employment Act of 2016—AMVETS 

fully supports this legislation which recognizes the unacceptably high unemployment rate among veterans and seeks to provide greater flexibility to individual 

States in their efforts to provide the services of DVOPs & LVERs to veterans within 

their state. 

Draft Legislation to reform the rights and processes relating to appeals of decisions 

regarding claims for benefits under the laws administered by the Secretary of VA— 

As everyone on this Committee is aware, large numbers of VA disability appeal 

cases are sent back for review—sometimes multiple times—and these cases must be 

addressed before any new cases can be opened. This slow and cumbersome process 

leads to many veterans having to wait years for a final decision on their case. 

AMVETS believes that the status quo is simply unacceptable! There is absolutely 

no justifiable excuse for 440,000 veterans being forced to wait extended periods for 

their earned benefits due to bureaucratic and administrative inefficiencies. No doubt 

the VA’s tendency to shift their focus back and forth from one crisis area to the next 

greatly exacerbates the backlog problems. 

What is truly needed, and is certainly a reasonable expectation, is for the VA to 

make the right decision, in a timely manner, the first time, so that veterans, and 

American taxpayers, are not repeatedly punished by the seemingly endless cycle of 

wrong decisions. 

140 

It is also undeniably critical that VA develop a system/process that, among other 

things: 

• allows for quick, yet consistent decisions on all claims and appeals at both the 

RO and BVA; 

• provides effective date protection; . allows for the establishment of clear, legal 

precedents; 

• provides veterans with multiple processing options throughout the life of their 

claim or appeal based on their personal circumstances; 

• provides VBA and the Board with all the necessary resources (human, financial, 

IT, etc.) to efficiently accomplish its mission; 

• addresses the current appeals backlog; 

• evaluates and addresses the shortcomings in the VBMS; 

• accepts competent and credible private medical evidence as part of an eligible 

veteran’s claim and/or appeal; and 

• establishes realistic goals for dealing with both legacy and new appeals 

As you know, AMVETS has always worked to enhance and defend the earned benefits of all Americans who are serving or have served honorably and selflessly in 

the Armed Forces. AMVETS has also simultaneously worked closely with both Congress and the VA to help develop and improve both the claims and appeals processes. 

AMVETS fully supports this critically important legislation which seeks, among 

other things, to: 

• modernize and remedy a number of problems within the current VA appeals 

processing system by creating three distinct ‘lanes’ which will address specific veteran needs; 

• improve VBA decision notices; and 

• provide effective date protection 

Draft Legislation to make certain improvements in the provision of automobiles 

and adaptive equipment by the VA—this seems like a pretty straight forward and 

common sense bill which seeks to ensure that eligible veterans have some personal 

choice in the vehicle or other conveyance they receive from the VA. It also requires 

the Secretary to develop a comprehensive policy regarding quality standards for providers who modify vehicles for veterans, including in part: standards of safety and 

quality of equipment, as well as the installation of such equipment. AMVETS believes that this type of legislation is long overdue and we support its intent of better 

meeting the needs of our disabled veterans. 

Draft Legislation to expand eligibility to hospital care and medical services under 

section 101 of the Veterans Access, Choice and Accountability Act of 2014 to include 

veterans in receipt of health services under the pilot program of the VA for rural veterans—AMVETS has always advocated for the special needs of our rural veterans 

and this appears to be a simple and economical solution to help our veterans who 

face the greatest roadblocks to healthcare access; therefore, AMVETS supports this 

legislation. 

Draft Legislation to require the VA Secretary to use industry standards, standard 

designs, and best practices in carrying out the construction of medical facilities—It 

seems clear that if we had had this legislation previously, we wouldn’t be in the 

current situation with the Aurora, Colorado VA medical center. If this legislation 

prevents a similar situation from occurring, then our support will be justified. 

The bill requires the Secretary to contract for forensic audits when expenditures 

exceed projected costs by 25% or more and to provide quarterly reports indicating 

progress, adherence to the budget and any cost or schedule variances of the project. 

What’s not to like? 

Draft Legislation to revise the evidentiary threshold for medical exams and opinions—AMVETS supports this legislation which seeks to expand the medical evidence which can be taken into consideration by the VA when evaluating a veteran’s 

claim for benefits. 

This completes my statement and I would be happy to provide written responses 

to any questions the Committee may have. 

141 


524apHAR1.eps
142 


524apHAR2.eps
143 


524apHAR3.eps
144 


524apHAR4.eps
145 

PREPARED STATEMENT OF MILITARY OFFICERS ASSOCIATION OF AMERICA

Chairman Isakson, Ranking Member Blumenthal, and Members of the Committee, Military Officers Association of America (MOAA) is pleased to present its 

views on veterans’ health care and benefits legislation under consideration by the 

Committee today, May 24, 2016. 

MOAA does not receive any grants or contracts from the Federal Government. 

On behalf of our more than 390,000 members, MOAA thanks the Committee for 

its steadfast commitment to the health and well-being of our servicemembers, veterans and their families and for considering the very important provisions in this 

legislation related to the Department of Veterans Affairs (VA) health care and benefits programs. 

MOAA’s position and recommendations are provided on the following bills: 

• S. 2896, Care Veterans Deserve Act of 2016 

• S. 2883, Appropriate Care for Disabled Veterans Act of 2016 

• S. 2679, Helping Veterans Exposed to Burn Pits Act 

• S. 2520, Newborn Care Improvement Act 

• S. 2487, Female Veteran Suicide Prevention Act 

• Draft Legislation, Reform the Rights and Processes Relating to the Appeals of 

Decisions 

• Draft Legislation, Modify Requirements for VA Compensation and Pension Examinations 

Health Care: 

S. 2896, CARE VETERANS DESERVE ACT OF 2016

This bill would eliminate the sunset date of the current Veterans Choice Program, 

expand eligibility for the program, and extend operating hours for VA Health Administration (VHA) pharmacies and medical facilities. 

MOAA thanks Senators John McCain (R-AZ) and Thom Tillis (R-NC) for their effort to improve the Choice Program so more veterans will have access to VA and 

community health care programs. 

The bill is a good start in addressing some of the underlying problems in the 

Choice Program, but doesn’t address the other six disparate Care in the Community 

Programs which are not integrated with the Choice Program, thus continuing to add 

more complexity and confusion to the program, further limiting veterans access to 

health care. 

MOAA supports the following provisions in the legislation: 

• Requires VA to provide information about the availability of care and services 

for veterans enrolled in the health system. 

• Allows VA to contract with a national chain of walk-in clinics to provide hospital care and medical services to enrolled veterans. While MOAA is supportive of 

this section of the bill, we are concerned about the additional costs on VHA by allowing all veterans, including those with non-service-connected conditions, to access 

this care at no cost. Such a change deviates from VHA’s current payment practices 

where veterans with non-service-connected conditions are typically required to pay 

a copayment for their care. 

• Grants VA the authority to allow licensed health care professionals at any location in any State, regardless of where the health professional or patient is located, 

to provide treatment through the use of telemedicine. 

• Requires VA to conduct best-practices peer review of each medical center to 

evaluate the efficacy of health care delivered in the facility. MOAA recommends 

adding a provision in this section to require VA to also conduct an assessment of 

capacity to determine existing gaps in furnishing care and services, including forecasting the short- and long-term demand and its impact on the system. 

While the bill provides a number of positive improvements to the current health 

system, the bill lacks the necessary funding and resources needed to support the requirements of the legislation. Given the current rates of usage of all Care in the 

Community Programs, including Choice, VA expects demand to continue for the 

foreseeable future. 

In fact, the months of March and April 2016 were the highest performing months 

for VA community care authorizations, including Choice—approximately 374,000 in 

March and 319,000 authorizations were created in April. And for Choice, VA 

projects the funding for the program will run out sometime in May 2017, well before 

the end of the fiscal year when the program is scheduled to sunset. 

Implementing the requirements outlined in S. 2896 without the associated funding would place additional budget pressures on an already fiscally constrained sysVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00149 Fmt 6601 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
146 

tem, and, would likely result in further fragmentation of the system, ultimately limiting veterans’ access to care—outcomes opposite of what the bill intends to achieve. 

Instead, MOAA believes VA’s Plan to Consolidate Care in the Community provides the best strategy forward. We urge Congress to fully fund and to consolidate 

all VA Care in the Community Programs, including the Veterans Choice Program 

as requested by the Department, in legislation to give the Secretary greater flexibility in managing community care dollars. 

S. 2883, APPROPRIATE CARE FOR DISABLED VETERANS ACT OF 2016

MOAA supports this bill, which would require a report to Congress on VA’s capacity to provide specialized treatment and rehabilitative needs of disabled veterans. 

The bill reestablishes the requirement in law indefinitely, eliminating the original 

expiration date of 2008. 

The need for specialized treatment and rehabilitative care and services has never 

been greater. 

We thank Senators Sherrod Brown (D-OH), Patty Murray (D-WA), and Bernard 

Sanders, (I-VT) for introducing the bill so our most vulnerable veterans get the care 

they need for a better quality of life. 

S. 2679, HELPING VETERANS EXPOSED TO BURN PITS ACT

MOAA supports the intent of S. 2679, which would establish a VA center of excellence for preventing, diagnosing, mitigating, treating, and rehabilitating veterans 

with health conditions relating to exposure to burn pits. 

While the bill attempts to address illnesses and other health conditions found in 

veterans exposed to toxins from burn pits in Iraq and Afghanistan, MOAA believes 

a center of excellence for all toxic wounds and illness, integrating the collective research, prevention, and treatment efforts, would be a better option for leveraging 

limited resources and funding to address not only burn pit exposures, but also other 

conditions such as Agent Orange and Gulf War Syndrome. 

S. 2520, NEWBORN CARE IMPROVEMENT ACT

MOAA fully supports this bill. The Newborn Care Improvement Act would extend 

the period of health care and services VA provides to newborns from seven to 14 

days. 

MOAA has long supported extending the period of newborn care as it provides for 

the best health outcomes for both the child and the veteran. We recommend Congress provide VA with the additional funds to support the requirement. 

S. 2487, FEMALE VETERAN SUICIDE PREVENTION ACT

This bill would direct the VA to identify the most effective mental health care and 

suicide prevention programs and metrics in treating female veterans. 

MOAA strongly supports this bill as well as its companion in the House, H.R. 

2915. 

The rising rate of suicides among female veterans is staggering. The VA reports, 

for female veterans ages 18–29, the risk of suicide is 12 times the rate of civilian 

women; for the period 2000–2010, suicides among female veterans rose by 40 percent. 

Yet little research has been done to address these alarming rates and the underlying physical and mental conditions. This legislation will go a long way in addressing suicide rates and improving the medical care and services necessary to promote 

physical and psychological health and well-being of all veterans and servicemembers. 

Benefits: 

DRAFT LEGISLATION, REFORM THE RIGHTS AND PROCESSES RELATING TO

THE APPEALS OF DECISIONS

MOAA agrees the current number of appeals pending a decision by VA is wholly 

unacceptable for veterans and thanks Senator Richard Blumenthal for his leadership in this area. MOAA is very sympathetic to VA’s assertions that it is unable 

to provide veterans with timely appeals decisions given the current claims process. 

The solution proposed by VA; however, contains no reliable indication that it will 

solve the backlog and also removes important procedural protections from veterans. 

VA has been unable to provide any statistics or estimates of how this new system 

will reduce their workload or how VA will be able to provide decisions within the 

125-day target goal. In the meantime, the new claims process takes away the vetVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00150 Fmt 6601 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
147 

eran’s right to have VA assist him or her in their claim development after VA renders its first decision in a claim. This is a dramatic change from the current procedure where VA is required to assist in claim development through the final agency 

decision. This change renders the entire VA claims system, following the initial ratings decision, an adversarial process where previously it was a paternalistic, nonadversarial process. 

For that reason, MOAA believes the duty to assist a veteran should continue following the initial rating decision and end only when a claim reaches the Board of 

Veterans’ Appeals. This will satisfy VA’s goal of avoiding additional claims development at the Board, but ensure a veteran obtains needed assistance without having 

to pay for assistance in an adversarial system. 

Elements of the proposed changes could reduce the number of appeals filed by veterans, and thus the backlog, without prematurely ending VA’s duty to assist. During 

meetings between VA and VSOs earlier this year, the general consensus reached by 

both sides was that many veterans file appeals because they simply do not understand why VA did not grant their claim. Improving the notice provided to veterans 

so it is thorough and understandable would reduce the number of appeals by itself. 

The proposed changes to Notices of Decisions would accomplish this. 

Another provision in the proposed legislation that would reduce the number and 

duration of appeals would make favorable factual findings binding upon VA. This 

is another way to reduce the appeals backlog while not making the entire post-decision process adversarial by ending VA’s duty to assist a veteran. 

MOAA also believes if this change in the claims proceedings is enacted, veterans 

who have filed a Notice of Disagreement prior to the passage of the legislation 

should be allowed to opt into the new claims processing system to allow them to 

take advantage of the faster processing times. This will allow those veterans to receive quicker decisions, presuming VA is able to meet its 125-day target goal of 

issuing them. There is no apparent reason to prevent veterans with existing appeals 

from opting into this new system. 

DRAFT LEGISLATION, MODIFY REQUIREMENTS FOR VA

COMPENSATION AND PENSION EXAMINATIONS

MOAA does not agree with the proposed modifications to 38 U.S.C. 5103A (d) (2), 

to modify the requirements under which VA is required to provide compensation 

and pension examinations to veterans seeking disability benefits. These proposed 

changes would require all veterans to objectively corroborate in-service incidents, 

which they may not possibly be able to obtain evidence for, before VA would allow 

the medical examination to take place. 

This scenario would further deteriorate VA’s duty to assist a veteran—in this 

case, before an initial ratings decision is even made. MOAA does not support such 

a modification. 

MOAA thanks the Committee for considering this important legislation and for 

your continued support of our veterans and their families. 

148 

PREPARED STATEMENT OF CDR JOHN B. WELLS, USN (RET.), EXECUTIVE DIRECTOR, 

MILITARY-VETERANS ADVOCACY


524apMVA2.eps
149 


524apMVA3.eps
150 


524apMVA4.eps
151 


524apMVA5.eps
152 


524apMVA6.eps
153 


524apMVA7.eps
154 


524apMVA8.eps
155 


524apMVA9.eps
156 


524apMVA10.eps
157 

PREPARED STATEMENT OF MARTIN CARAWAY, LEGISLATIVE CHAIRMAN, NATIONAL

ASSOCIATION OF COUNTY VETERANS SERVICE OFFICERS

Good afternoon Chairman Isakson, Ranking Member Blumenthal, and Members 

of the Committee, the National Association of County Veterans Service Officers 

(NACVSO), is honored to present to you the views we have concerning the pending 

legislation before you today. 

The National Association of County Veterans Service Officers is an organization 

made up of 1,600 local government employees, who work with veterans every day 

to aid in the delivery of veterans’ benefits, advocacy, health care enrollment 

amongst others. We would like to thank you for your commitment in remedying 

some of the largest struggles we as advocates’ face and more importantly that veterans face. 

The following provides NACVSO’s position and recommendations on the following 

bills: 

• S. 2896 Care Veterans Deserve Act of 2016 

• S. ll (Blumenthal), Appeals Reform 

S. 2896, Care Veteran Deserve Act of 2016: Generally, NACVSO supports this bill 

with exceptions. This legislation does not provide additional financial resources necessary for permanently running a program as robust as Choice. Second it does not 

remedy the payment mechanism to community providers. The third party administrators have failed to pay claims promptly and thus have had negative credit implications on the veterans utilizing the service. While the VA is working to resolve 

these credit disputes, it is alarming that we would continue to utilize these contractors to implement this long term. 

The expansion to pharmaceutical services is most certainly a step in the right direction. NACVSO encourages VA with the support of Congress to fund guaranteed 

72-hour delivery of medications ordered on ‘‘my healthevet.’’ We believe that this 

mechanism would greatly enhance users ability to order medications when they realize the medication needs to be refilled without having to expend addition VA resources by calling and requesting urgent shipping. 

Last, contracting with national chains of of walk-in clinics along with the elimination of pre authorization and co-pays would go a long way in improving the Veterans Choice Bill in practical application. Veterans frustrations are born of communicating with multiple parties to utilize services for medical services that urgent or 

semi-urgent in nature. 

S. ll(Blumenthal), a bill to reform the rights and processes relating to appeals 

of decisions regarding claims for benefits under the laws administered by the Secretary of Veterans Affairs: NACVSO strongly supports appeals/claims reform. It does 

not need to be reiterated at how the current appeals process is a disservice to claimants, with a current inventory of 445,000 appeals and with no action the appeals 

inventory will surpass two million cases in the next decade. NACVSO is committed 

to continuing to work with the VA and service organization partners to aid in the 

expeditious treatment of veterans claims but not at the sacrifice of quality. We feel 

that this proposed language is the change we as local advocates need to ensure that 

their cases are heard and appropriately adjudicated in a timely fashion, while maintaining claimant rights under the current regulation. 

This legislation does not propose a mechanism in which the Board of Veterans Appeals (BVA) can significantly reduce/eliminate their current inventory. NACVSO is 

in support of short term increased funding allocated to the BVA designated for this 

purpose. NACVSO also strongly recommends, if this is enacted that current claimants in the BVA claims inventory be given the option to opt into this new process. 

By doing so, the appeals inventory will be reduced while the veteran claimants are 

given the option of having their newly submitted evidence heard at the Agency of 

Original Jurisdiction (AOJ). 

158 

PREPARED STATEMENT OF DAVID BRASUELL, PRESIDENT, NATIONAL ASSOCIATION

STATE DIRECTORS OF VETERANS AFFAIRS AND ADMINISTRATOR, IDAHO DEPARTMENT

OF VETERANS SERVICES


524apNAS2.eps
159 


524apNAS3.eps
160 


524apNAS4.eps
161 


524apNAS5.eps
162 


524apNAS6.eps
163 

LETTER FROM THE NATIONAL MOBILITY EQUIPMENT DEALERS ASSOCIATION

Chairman Isakson, Ranking Member Blumenthal, and esteemed Senators of the 

Veterans’ Affairs Committee: The National Mobility Equipment Dealers Association 

(NMEDA) thanks you for this opportunity to comment on Senator Moran’s Discussion Draft, entitled the Veterans Mobility Safety Act of 2016. Last week, identical 

legislation, H.R. 3471, was marked up and unanimously passed by the House of 

Representatives Committee on Veterans’ Affairs. We are hopeful that the full House 

of Representatives will soon have an opportunity to vote on this common sense, bipartisan legislation. 

This is an exciting time for our organization that stands in full support of Senator 

Moran’s draft legislation, which would establish enforceable, minimum standards for 

providers participating in the Automobile Adaptive Equipment (AAE) program, administered by the U.S. Department of Veterans Affairs (VA). As you are aware, 

there are numerous problems with how the VA currently administers the AAE 

program. 

For far too long, the VA has allowed unqualified providers performing unsafe and 

unreliable vehicle modifications and equipment installations to participate in the 

AAE program. If the provider fails to properly install, or modify, the equipment, this 

scenario quickly becomes a safety hazard for the veteran and the driving public. Unfortunately, this is an all too common occurrence. Further, because the AAE program provides reimbursement (either to the provider or to the qualifying veteran), 

the taxpayer ends up paying for the inadequate modification services to be corrected. Simply put, Senator Moran’s draft legislation would put an end to this dangerous and costly practice. 

The VA’s AAE program assists disabled veterans by providing reimbursement for 

the sale, installation, maintenance, and repair of automobile adaptive equipment. 

Automobile adaptive equipment, including unoccupied wheelchair and scooter lifts, 

driving controls, and vehicle access modifications enable veterans with disabilities 

to accomplish daily tasks and participate in work, education, and recreational activities. The AAE program has wonderful potential, but unfortunately, the current administration of the program is alarming, due to the absence of enforceable standards 

for participating providers. 

Inferior providers are also paid by the VA for their work. NMEDA has seen inferior modifications done by: Providers operating out of home garages/parking lots/mobile trucks, vendors lacking insurance coverage, vendors employing uncertified welders and technicians, vendors lacking the specialized tools and equipment necessary 

to perform AAE vehicle modifications, and vendors unwilling to provide emergency 

services. Quality concerns range from installing faulty wiring to completing the 

modifications with chronically unreliable power, steering, and braking systems. 

Such poor quality installations have very real safety implications and can result in 

automobile accidents, vehicle fires, injuries, or worse. All modifications to a vehicle 

involve a degree of complexity. Tinkering with the drivability of a vehicle, particularly a disabled veterans’ vehicle, requires skill and workmanship. As such, NMEDA 

believes that anyone that modifies an automobile in the AAE program should be certified to work on all modifications and installations for our veterans. 

Contrast this scenario, where the VA requires an individual to be certified in 

order to sell a bottle of oxygen to a veteran, yet someone who is not certified can 

install a $30,000, high-tech electronic driving control system on a disabled veterans’ 

vehicle. In practical terms, this means that anyone can provide this service to veterans, and receive taxpayer dollars for doing so. 

The problems do not stop with the first installation. When a veteran complains 

to the VA about an unsafe installation, the VA has a history of referring the repair 

work to a vendor certain to complete the job properly. It often costs the VA more 

money to fix the inferior installation than it would cost to have the installation performed properly to begin with. Senator Moran’s draft legislation would get ahead 

of this problem, and require standards to be set so that veterans know that they 

are getting work done by a quality, certified provider. 

Some have raised unwarranted concerns about the ‘‘conflict of interest’’ section of 

this draft legislation, particularly the certification of providers by a third party organization or manufacturer. The draft legislation correctly protects against those entities that may stand to unreasonably gain from a certification program, and steps 

are taken in the bill to minimize the possibility of that happening. NMEDA agrees 

and supports this language. 

However, NMEDA believes that the certification of providers by any one third 

party organization does not mean that the organization itself has a conflict of interest that is financial, or otherwise. In order to have such a conflict, the VA should 

analyze whether the third party organization stands to unreasonably gain from the 

164 

VA designating the organization’s quality standards high enough so that it can certify providers of modification equipment. 

NMEDA is dedicated to ensuring that people with disabilities are provided with 

safe and reliable automotive transportation through the establishment of industry 

guidelines and quality procedures for the proper and safe installation of automobile 

adaptive equipment. As such, NMEDA fully supports the Veterans Mobility Safety 

Act of 2016, as it would require the VA to address disabled veterans’ unique mobility needs responsibly and with long-overdue concern for quality, performance, and 

safety. 

Respectfully Submitted, 

NMEDA 

PREPARED STATEMENT OF BARTON F. STICHMAN AND RONALD B. ABRAMS, JOINT

EXECUTIVE DIRECTORS, NATIONAL VETERANS LEGAL SERVICES PROGRAM

Mr. Chairman and Members of the Subcommittee: Thank you for inviting us to 

submit written testimony concerning legislative efforts to reform the veterans claims 

and appeals process in the United States Department of Veterans Affairs (VA). Our 

testimony addresses two discussion drafts: (1) the draft bill ‘‘to reform the rights 

and processes relating to appeals of decisions regarding claims for benefits under 

laws administered by the Secretary of Veterans Affairs, and for other purposes’’ sent 

to the Committee for discussion by Senator Blumenthal (hereinafter ‘‘VA appeals reform draft’’) and (2) the discussion draft to amend 38 U.S.C. § 5103A(d)(2) to change 

the evidentiary threshold for VA medical examinations and opinions. 

The National Veterans Legal Services Program (NVLSP) is a nonprofit veterans 

service organization founded in 1980 that has been providing free legal representation to veterans and assisting advocates for veterans for the last 36 years. NVLSP 

has represented veterans and their survivors at no cost on claims for veterans benefits before the VA, the U.S. Court of Appeals for Veterans Claims (CAVC), and other 

Federal courts. As a result of NVLSP’s representation, the VA has paid more than 

$4.6 billion in retroactive disability compensation to hundreds of thousands of veterans and their survivors. 

NVLSP publishes numerous advocacy materials, recruits and trains volunteer attorneys, trains service officers from such veterans service organizations as The 

American Legion, the Military Order of the Purple Heart and the Military Officers 

Association of America in veterans benefits law, and conducts local outreach and 

quality reviews of the VA regional offices on behalf of The American Legion. NVLSP 

is one of the four veterans service organizations that comprise the Veterans Consortium Pro Bono Program, which has, since 1992, recruited and trained volunteer lawyers to represent veterans who have appealed a Board of Veterans’ Appeals decision 

to the CAVC without a representative. In addition to its activities with the Pro Bono 

Program, NVLSP has trained thousands of veterans service officers and lawyers in 

veterans benefits law, and has written educational publications that thousands of 

veterans advocates regularly use as practice tools to assist them in their representation of VA claimants. 

VA APPEALS REFORM DRAFT BILL

This part of our testimony focuses on the VA appeals reform draft bill sent to the 

Committee for discussion by Senator Blumenthal. We very much appreciate the opportunity to share our views on this important piece of potential legislation. Over 

the last several months, NVLSP has participated with a workgroup of veterans service organizations convened by the VA to find common ground on a set of reforms 

to address the serious dysfunctions that exist in the current VA appeals process. 

We believe the VA appeals reform draft bill is a welcome attempt to address the 

serious problems veterans and their dependents face in processing appeals in the 

VA. We are generally favorable to the bill, with several important caveats discussed 

below. To be clear, we believe the problems we have identified below can be addressed now. If they are, we support this bill as an innovative means of addressing 

the systemic delays claimants face in the dealing with their VA appeals. 

Before we address the merits of the proposed legislation in more detail, we begin 

with a general point that is important to remember. The proposed structuring of the 

administrative appeals process envisioned under the bill is far-reaching. As with 

any change to a complex system, there will clearly be effects that we cannot now 

predict. We have considered this reality quite seriously. If the system were functioning generally well, a concern with unintended consequences might be sufficient 

to oppose such a comprehensive change in the system. But we are not dealing with 

a well-functioning system. Given that state of affairs, we have ultimately concluded 

165 

that the proposed legislation—even without being able to predict all of its effects— 

is a necessary step. We support it with the changes we discuss below. 

I. Positive Features of the Proposed Legislation 

We briefly highlight the significant positive features of the changes envisioned 

under the proposed legislation. Taken together, we believe these features of the 

draft bill will decrease appeal times while providing claimants with various options 

for pursing their appeals. The most significant positive features in the proposed legislation are: 

• The draft bill provides for enhanced ‘‘notice letters’’ to veterans and other claimants concerning the denial of their claims. Enhanced notice is critically important 

to veterans as they make determinations about how to proceed when they are dissatisfied with a VA decision. • The draft bill also eliminates the requirements under current law concerning 

the preparation of a Statement of the Case (SOC), the veteran’s corresponding need 

to complete an additional step to perfect an appeal to the Board (i.e., VA Form 9) 

and VA’s subsequent need to certify the appeal by completing VA Form 8. While 

there may have been a time at which the SOC served a useful function in this system, the enhanced ‘‘notice letters’’ required by the proposal eliminate the need for 

an SOC. Thus, the SOC process serves only to delay the processing of claims. • The draft bill lowers the standard necessary for re-opening a claim under Section 5108. The current standard of ‘‘new and material evidence’’ is replaced with 

‘‘new and relevant evidence.’’ While we address below two concerns—one involving 

supplemental claims and one involving the wording of the new lower standard—the 

lowering of the standard is critically important. In addition, and as we discuss in 

more detail below, the revised Section 5108 will allow veterans to obtain earlier effective dates in many circumstances than they would be able to do under the current version of this provision. 

• The draft bill allows veterans a meaningful choice when they appeal to the 

Board of Veterans’ Appeals (Board). A veteran may elect to forgo the submission of 

new evidence and a hearing in cases in which he or she determines such an approach is best. This would provide for more expeditious treatment of such appeals. 

On the other hand, a veteran can elect to proceed on a track in which the submission of new evidence and a hearing is allowed. This dual-track approach recognizes 

the reality that not all appeals are alike. 

• The draft bill allows a claimant to seek the assistance of a lawyer for pay after 

an initial denial but before the filing of a Notice of Disagreement (NOD). This is 

a change from current law in which a lawyer may not charge a fee before the filing 

of an NOD. While seemingly a small change, we believe this is significant because 

the structure of the proposed new system provides claimants with myriad ways in 

which to proceed. Advice to such claimants will be critical and the proposed change 

allows more options for that advice. 

• We believe the draft bill also reduces the means by which the VA can ‘‘develop 

to deny.’’ NVLSP has reviewed many regional office and BVA cases in which the 

existing record before the VA supports the award of benefits, but instead of deciding 

the claim based on the existing record, VA has delayed making a decision on the 

claim by taking steps to develop additional evidence for the apparent purpose of denying the claim. Certain aspects of the current proposal—for example, the restriction on the application of the duty to assist at the Board—will likely reduce such 

actions. 

II. PROBLEM ONE: The Need to Clarify the Right to Both Appeal to the CAVC and 

File a Supplemental Claim Simultaneously to Protect the Claimant’s Effective 

Date 

NVLSP’s support of the critically important positive changes to the administrative 

appeals process contained in the bill comes with several critical caveats. The first 

caveat is contained in this part of our testimony. 

Currently, after a Board decision that disallows a claim, the claimant may file 

both (i) an appeal with the Court of Appeals for Veterans Claims (CAVC) under 

Chapter 72 and (ii) a claim with the Agency of Original Jurisdiction (AOJ) under 

Section 5108 to ‘‘reopen the claim’’ disallowed by the Board ‘‘and review the former 

disposition of the claim,’’ when the claimant submits ‘‘new and material evidence.’’ 

In other words, the claimant does not have to choose between appealing to the 

CAVC and filing a claim with the AOJ to reopen under Section 5108. The claimant 

may freely take both actions. 

The draft bill renames a Section 5108 claim as a ‘‘supplemental claim’’ and lowers 

the threshold requirement to obtain readjudication of the previously disallowed 

claim by substituting the language ‘‘new and relevant evidence’’ for ‘‘new and mateVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00169 Fmt 6601 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
166 

rial evidence.’’ In addition, no language in the draft bill indicates an intent to 

change existing law allowing a claimant, after a Board decision that disallows the 

claim, to file simultaneously both a timely appeal with the CAVC and a Section 

5108 claim with the AOJ. 

Nonetheless, VA officials have repeatedly represented to the veterans service organizations that if the draft bill is enacted as currently worded, the options available to a claimant will change. According to these VA officials, including Secretary 

McDonald, after a Board decision disallowing a claim, the claimant would now be 

required by law to make a choice between appealing to the CAVC and filing a supplemental claim with the RO in order to preserve the date of filing the initial claim 

as the potential effective date if the claim disallowed by the Board is ultimately 

granted. As background, after a Board decision disallowing a claim, the claimant 

may file under the proposed bill a Section 5108 supplemental claim within one year 

of the Board decision disallowing the claim. If that supplemental claim were ultimately granted, the proposed bill’s amendment to Section 5110 would enable the 

claimant to be assigned the date of filing the initial claim, rather than the date of 

filing the supplemental claim, as the effective date of the award, as long as the 

other Section 5110 criterion for assignment of that early effective date is satisfied. 

We strongly support this part of the draft bill. Nonetheless, VA officials have repeatedly represented that under the draft bill, if a claimant, after a Board decision 

disallowing a claim, were to file a timely appeal of the Board decision with the 

CAVC and lose on appeal, the claimant would incur the following penalty: the claimant could not lawfully be assigned the date of filing the initial claim as the effective 

date even if the claimant filed a Section 5108 supplemental claim within one year 

of the Board decision and the VA granted the supplemental claim. 

If the draft bill is enacted without a change in language to clarify this matter, 

and VA continues to insist that a claimant must choose between an appeal to the 

CAVC and a supplement claim under Section 5108 in order to preserve the date of 

filing the initial claim as the potential effective date, this matter will inevitably 

have to be resolved by the Federal courts. Final judicial resolution would likely take 

years. To be clear, we believe the VA’s currently articulated approach is not consistent with the draft bill. But we also realize that it is difficult to predict how 

courts will resolve legal disputes. No matter how this legal dispute is ultimately resolved, during the years this litigation is pending in court, there would likely be a 

significant disruption to the VA claims adjudication process and further delays experienced by VA claimants. 

Congress should clarify this matter before passing this draft bill to avoid litigation 

and a disruption to the claims adjudication process. We suggest adding the following 

clarifying language. First, add the following to the end of line 16 on page 8 of 

amended Section 5108: 

After a decision of the Board of Veterans’ Appeals that disallows a claim, 

nothing in this title shall be construed to limit the right to pursue at the 

same time both (i) an appeal of such Board decision to the United States 

Court of Appeals for Veterans Claims under chapter 72 of this title, and 

(ii) a supplemental claim under this section seeking readjudication of the 

claim disallowed by such Board decision. 

Second, on line 10 of page 10, redesignate subsection (a)(3) as subsection (a)(4) 

and add a new subsection (a)(3) containing the following language: 

(3) For purposes of subsection (a)(2), a claim is continuously pursued by filing a supplemental claim under section 5108 of this title within one year 

of a decision of the Board of Veterans’ Appeals without regard to either (i) 

the filing under chapter 72 of this title of a notice of appeal of such Board 

decision or (ii) the final decision of the Court of Appeals for Veterans 

Claims under chapter 72 of this title. 

It is contrary to the interests of justice and the pro-claimant process that Congress has created to require claimants to make a choice between filing an appeal 

with the CAVC and filing a supplemental claim with the RO within one year of the 

Board decision in order to preserve the date of filing the initial claim as the potential effective date. Each of these two options serves an entirely different purpose. 

Claimants appeal to the CAVC to correct a prejudicial legal error that they believe 

the Board made in disallowing the claim, such as a misinterpretation of the law or 

a violation of the statutory duty to assist by failing to provide the claimant with 

an adequate medical examination or medical opinion. Claimants file a Section 5108 

claim for an entirely different reason. They file a Section 5108 claim in an effort 

to add positive evidence to the record so that the weight of the positive evidence 

is equal to or greater than the weight of the negative evidence of record, in an atVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00170 Fmt 6601 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
167 

tempt to convince VA that the claim should be granted even under VA’s existing 

view of its legal requirements. 

What VA seeks is to force veterans whose claims are disallowed by the Board to 

make an unfair choice between two options. According to VA’s interpretation of the 

draft bill, each choice alone has a potentially fatal consequence. If the veteran chooses the option of appealing to the CAVC, the veteran cannot add evidence to the 

record and is essentially limited to arguing that the Court should vacate and remand the Board’s decision due to legal error. A fatal consequence occurs if the Court 

upholds the Board’s interpretation of law (as it does in approximately 30% of all appeals). The veteran’s right to the date of filing of the initial claim as the potential 

effective date is lost forever. While the veteran may be able to file a Section 5108 

supplemental claim with new and relevant evidence despite the Court defeat, VA’s 

position is that success on that supplemental claim cannot validly lead to an award 

of benefits retroactive to the date of filing the initial claim that was disallowed by 

the Board. 

On the other hand, if the veteran gives up the right to appeal to the CAVC to 

challenge the Board’s interpretation of the law by choosing the other option—filing 

a Section 5108 supplemental claim within a year of the Board decision—the veteran 

enjoys the benefit of being able to add new positive evidence to the record. But the 

VA’s view of what the law requires will most likely be the same as the Board’s view 

of the law when it disallowed the initial claim. Thus, the veteran must shoulder the 

burden of attempting to convince VA that it should award benefits under an unfavorable view of the law with which the veteran disagrees. Thus, the chance of success is obviously lower than it would be if VA was required to adjudicate the supplemental claim under the veteran’s more favorable view of what the law requires. 

To be clear then, under the VA’s proposed approach, a veteran would need to decide between preserving his or her effective date by filing a supplemental claim or 

potentially correcting a legal error in the Board’s decision through the judicial process. A veteran should not be put in such a position. The interests of justice and 

maintenance of the pro-veteran claims process that Congress has nurtured for decades should lead Congress to clarify the proposed bill by adding language that 

makes it plain that after a Board decision disallowing a claim, the veteran has the 

right to protect the date of filing the initial claim as the effective date by both filing 

an appeal with the CAVC to correct a prejudicial legal error made by the Board and 

filing a Section 5108 supplemental claim in an effort to convince VA that the newly 

added evidence shifts the weight of the evidence so that VA awards benefits even 

under its unfavorable view of its legal requirements. 

III. PROBLEM TWO: The Draft Bill Needs to be Amended to Provide An Effective 

Date and for Handling the Inventory of Pending Appeals 

The draft bill lacks an effective date. In addition, it does not address how VA 

should integrate the streamlined appeals process contained in the draft bill with the 

inventory of more than 400,000 currently pending VA appeals. The draft bill needs 

to be amended to address both of these issues. 

During the ongoing discussions between the VA and the veterans service organizations and other stakeholders regarding the reforms contained in the draft bill, the 

VA recently staked out a position on both of these two important issues. Under the 

VA’s proposal, it appears that the VA would ultimately issue decisions on many new 

appeals filed after the effective date of the draft bill before it issues decisions on 

many of the 400,000 currently pending appeals. Indeed, it appears to us that under 

VA’s recent proposal, many of the currently pending appeals would be decided by 

VA years after many new appeals are decided by the VA. NVLSP objects to such 

an unfair system. 

NVLSP has three suggestions regarding the effective date and the need to address 

the existing inventory of pending appeals. First, NVLSP urges Congress to appropriate a significant amount of additional money on a temporary basis for VA to use 

exclusively to tackle the backlog of currently pending appeals. 

Second, the VA should propose in advance both an effective date for the draft bill 

and provisions that address the following two issues regarding VA allocation of its 

resources under the draft bill: 

(1) The formula that VA will use to allocate its resources between adjudicating 

appeals on the non-hearing option Board docket versus adjudicating appeals on the 

hearing option Board docket under the draft bill’s amendment to Section 7107 of 

Title 38. It is important to address this issue to ensure that BVA decisions on hearing docket cases are not unduly delayed in comparison to cases on the non-hearing 

option docket due to over allocation of BVA resources to deciding appeals on the 

non-hearing docket. Transparency in this matter is very important. 

(2) Before the bill is passed, it should be amended to provide the formula VA will 

use to allocate its resources between adjudicating appeals pending at the VA prior 

168 

to the proposed effective date of the draft bill and appeals docketed after that effective date. It is important to address this issue to prevent the unfairness to veterans 

with appeals already pending when the bill goes into effect. It would be fundamentally unfair if these appellants have to wait many years longer to receive a BVA 

decision than do veterans who file appeals after the draft bill goes into effect because the VA assigned most of its resources to deciding appeals filed after the draft 

bill goes into effect. 

Third, after VA submits its proposal on these matters, veterans service organizations and other stakeholders should be given an opportunity to provide Congress 

with their views on the VA proposal. 

DISCUSSION DRAFT ON REVISION TO EVIDENTIARY THRESHOLDFOR

VA MEDICAL EXAMINATIONS AND OPINIONS

NVLSP strongly opposes enactment of the changes to 38 U.S.C. § 5103A(d)(2) contained in this discussion draft. At the outset, it is important to understand the legislative process that led to enactment of current 38 U.S.C. § 5103A(d)(2). That provision was adopted by Congress as part of the VA Claims Assistance Act of 2000 

(VCAA) after a long legislative debate in which all stakeholders participated, including the VA and the major veterans service organizations. It contains a carefully 

crafted compromise. As discussed below, the case law developed over the last 16 

years provides clear guidance to both veterans and the VA on their respective obligations with regard to VA assistance. The only significant problems that currently 

exist involve individual cases in which the VA regional offices or the Board of Veterans’ Appeals fails to comply with VA’s clear legal obligations. 

Under the current statute, VA is required to assist a veteran in substantiating 

the claim for benefits by affording him/her a VA medical examination or opinion unless there is no reasonable possibility that a VA medical examination or opinion 

would help the veteran substantiate the claim for VA benefits. Providing a medical 

examination or opinion is possibly the most important feature of VA’s duty to assist, 

and in many cases, a VA medical examination or opinion will provide the claimant 

with the evidence needed to substantiate his or her claim. The U.S. Court of Appeals for Veterans Claims correctly determined a decade ago that under the current 

statute, a claimant has a ‘‘low threshold’’ to satisfy the threshold requirement to obtain a VA medical examination or opinion. See McLendon v. Nicholson, 20 Vet. App. 

79, 81 (2006). 

NVLSP agrees that VA has a legitimate interest in not providing examinations 

in every single disability claim, including those claims that are frivolous. However, 

the current statute already has protections in place that adequately serve that interest. Under the current statute, if there is no indication that a veteran’s current 

disability or symptoms may be related to an event or injury in service, then the VA 

does not have to provide the claimant with an examination or opinion. See 

McLendon, 20 Vet. App. at 81; see also 38 U.S.C. § 5103A(a)(2) (‘‘The Secretary is 

not required to provide assistance to a claimant under this section if no reasonable 

possibility exists that such assistance would aid in substantiating the claim.’’). 

Therefore, the VA already has flexibility under the current version of the statute 

in determining who should be afforded a VA examination. There is simply no need 

for a revision. 

This discussion draft would make it much easier for the VA to deny a veteran’s 

disability claim without the need to provide the veteran with a VA medical examination or opinion. It does so by adding a fourth threshold requirement to the three 

threshold requirements that already exist in 38 U.S.C. § 5103(d)(2) before the VA 

is required to provide a VA medical examination or opinion. Under this new fourth 

threshold requirement, the record must contain ‘‘objective evidence’’ of an in-service 

injury, disease, or event capable of causing an injury or disease. The discussion 

draft contains two exceptions to this fourth threshold requirement: cases covered by 

38 U.S.C. § 1154(b) involving events that occur during combat and cases involving 

a disease that became manifest during an applicable presumptive period. 

We strongly object to the addition of ‘‘objective evidence’’ to the duty to assist statute because the currently worded statute is working well and the discussion draft 

suffers from the flaw that it contains no definition of the phrase ‘‘objective evidence.’’ The discussion draft inappropriately leaves the task of defining the broad 

phrase ‘‘objective evidence’’ to the VA in regulations promulgated by the Secretary. 

That phrase is susceptible to many different interpretations. Thus, nothing would 

prevent the VA from promulgating regulations that define ‘‘objective evidence’’ of an 

in-service injury, disease, or event as contemporaneous military department evidence that corroborates the fact that an in-service injury, disease or event ocVerDate Mar 15 2010 17:28 Nov 09, 2017 Jkt 000000 PO 00000 Frm 00172 Fmt 6601 Sfmt 6621 Z:\ACTIVE\052416.TXT PAULIN
169 

curred—thereby overturning the 2006 Federal Circuit decision in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

Thus, the ‘‘objective evidence’’ requirement could lead to situations where veterans 

who provide lay statements about in-service events or their symptoms are not provided with VA medical examinations. For example, if a veteran states that he or 

she was in an in-service jeep accident that resulted in post-service symptoms or disability and provides multiple buddy statements from witnesses to the in-service 

event, the VA could discredit these lay statements on the ground that the accident 

is not corroborated by any contemporaneous military medical or other evidence. 

Military records do not capture every single injury, disease, or event that takes 

place in the active duty service of military personnel. And even when military 

records are created that corroborate these matters, these records are often lost or 

destroyed. This proposed amendment will likely lead to unfair denials placing an 

insurmountable burden on the veteran. This would, in our view, be unacceptable. 

The fact that veterans currently only have to meet a low threshold in order to 

be provided with an examination is a positive feature of the system. After all, most 

disability benefits claims need a medical opinion to substantiate the claim, and 

many claimants lack the financial resources to obtain a medical opinion from a private physician. Therefore, VA examinations are crucial in helping veterans receive 

the benefits to which they are entitled. The low threshold established by Congress 

16 years ago for what a veteran must meet to require the VA to provide him or her 

with an examination should be celebrated by Congress, not amended. The only logical rationale for this discussion draft is to reduce the number of examinations that 

VA must provide. Congress should not make things harder for veterans for the bureaucratic convenience of the VA. 

CONCLUSION

Thank you for this opportunity to present our views, and we would be pleased to 

respond to any questions that Members of the Committee may have. 

PREPARED STATEMENT OF THE TEXAS VETERANS COMMISSION

STATE OUTREACH FOR LOCAL VETERANS EMPLOYMENT (SOLVE) ACT 2016

VETERANS EMPLOYMENT

The Texas Veterans Commission (TVC) greatly appreciates the opportunity to 

submit the following testimony in support of S. 2919, The State Outreach for Local 

Veterans Employment (SOLVE) Act. TVC would like to express our deepest appreciation to Senator Pat Toomey (R-PA), and Senator John Cornyn (R-TX), Majority 

Whip, for introducing this timely and important legislation. In addition, we would 

like to thank every member and staff of the Senate Committee on Veterans’ Affairs 

for their dedicated commitment to providing veterans the support they deserve. 

Currently, the Department of Labor’s Veterans Employment and Training Services (DOL-VETS) administers the Jobs for Veterans State Grants (JVSG) program. 

The Federal Government, through JVSG, provides states approximately $173 million to support services to assist veterans find lasting and meaningful employment. 

Specifically, under Title 38, the JVSG program provides funding for states to hire 

Disabled Veterans’ Outreach Program Specialists (DVOPS) and Local Veterans’ Employment Representatives (LVERs). DVOPS provide intensive services to eligible 

veterans with significant barriers to employment and LVERs conduct outreach to 

employers and facilitate employment and training services. 

Funding under the current statute is contingent upon the submission of an annual plan by Governors identifying the following: 

• the number and types of DVOPS or LVERs; 

• their specific roles and responsibilities; 

• their geographic location; and 

• how the above criteria matches the unique needs of the state’s Veteran population. 

DOL-VETS is required to accept or reject a Governor’s plan in writing before 

funds are released to a state. If approved, the common model is for the state’s workforce agency to administer the JVSG program by passing Federal funds to local 

workforce boards who provide the approved services to veterans. 

Texas adhered to this model prior to 2006. However, out of concern for the under 

achieving performance of the program in its then current form, Governor Perry and 

the Texas Legislature took initiative to move the administration of the JVSG program from the workforce agency to the TVC. This move further consolidated critical 

170 

1Source DOL NATIONAL Veterans Report–2013 data. 

veteran services and programs under one agency with the sole focus of supporting 

the over 1.7 million veterans in Texas. 

Under the Texas Model, the JVSG program constitutes the Veteran’s Employment 

Services department which is part of the umbrella of services the TVC provides to 

Texas veterans and their families. These services includes claims and benefits assistance, veteran education programs, a peer-to-peer networking and counseling program, women veterans outreach, State Strike Force Teams, and a grants program 

entitled the Fund for Veterans Assistance. 

No other state has a full complement of veteran services centralized within the 

state’s veteran affairs agency. This consolidation is key to the success of the Texas 

Veterans Commission, allowing the agency to concentrate efforts and resources on 

veterans with a focus not possible when these programs exist as separate components in larger agencies. Since 2008, TVC’s JSVG program has been recognized as 

one of the best in the Nation and received the following awards from Veteran Service Organizations: 

• Mark Sanders Award for Exception Service to Disabled Veterans from the National Association of State Workforce Agencies, 2008. 

• National Employment Services Office of the Year from the Veterans of Foreign 

Wars (VFW), 2008. 

• National Employment Office of the Year from the American Legion, 2008. 

• National DVOP of the Year from the American Legion, and DVOP of the Year 

from the Disabled American Veterans (DAV), 2008. 

• National DVOP of the Year from the DAV, 2009. 

• National LVER of the Year, from the DAV, 2009. 

• National LVER of the Year, from the DAV, 2013. 

• National Employment Office of the Year from the American Legion, 2013. 

• National American Legion of the Year from the DAV, 2014. 

In the most recent reporting period, Texas’ performance led the Nation. The Veterans Employment program assisted 55,864 Texas veterans, with 26,283 of those 

veterans obtaining employment. As a result of these efforts, 171 veterans obtained 

employment for every one Veteran Employment Representative. While Texas receives 7% of JVSG total funding nationwide, the state accounts for 18% of the Nation’s veterans receiving services and entering into employment.1

Despite the success of the Texas Model, DOL-VETS routinely denies other Governors the flexibility to move JVSG funding from state workforce agencies to state 

departments of veterans affairs (SDVA). For example, Wisconsin’s most recent state 

budget included a provision to move JVSG-funded programs to the SDVA. However, 

that request was denied by DOL-VETS without providing clear reasoning for its objection to the Wisconsin plan. Instead, DOL-VETS leadership justified their denial 

by attempting to discredit the Texas program. Other states have expressed interest 

in a consolidation of veteran services, but express hesitancy to do so in light of DOLVETS’s arbitrary response to the Wisconsin proposal. 

We believe that the JVSG program in its current state is unduly inflexible; a one 

size fits all approach that limits a state’s ability to incorporate best practices into 

their employment program. A state should be able to tailor the intensive services 

they provide to meet the unique needs of the veterans they serve. An inability to 

do so can ultimately prevent a veteran from overcoming the unique barriers to sustained employment they face. 

The SOLVE Act provides Governors the opportunity to recommend additional Significant Barrier to Employment (SBEs) that hinder a Veteran’s ability to find gainful employment in their state. By analyzing local and regional data, states are able 

to recognize problematic barriers that may not meet the stringent 10 categories currently recognized by DOL-VETS. Allowing a Governor to identify a unique barrier 

to veteran employment may facilitate valuable communication between states and 

DOL-VETS and help solve the problem of veteran’s unemployment at the macro 

level. 

As part of a state’s JVSG Plan, any SBEs recommended by a Governor would still 

require DOL-VETS approval. If approved, the SBE could be in addition to or in 

place of those currently used as part of the national standard. Allowing this flexibility would enable the DVOPs to provide one-on-one job coaching and help the specific population overcome the identified barriers through development of employment plans and providing intensive services. This approach is a better alternative 

over submitting an additional Special Initiative Modification request, which may require DOL to provide additional funding if approved. 

171 

The SOLVE Act also provides DOL the ability to approve and disapprove sections 

of a state’s plan rather than rejecting the entire plan outright. Currently, DOL is 

required to provide in writing their decision to accept or reject a JVSG plan in full. 

This legislation provides additional common sense flexibility to ensure accountability and responsiveness. 

Our veterans are unique. Our states are unique. The method in which we support 

these deserving heroes should be reflective of their individual situation. TVC understands and supports the need for national standards and program oversight to be 

centralized within DOL-VETS. They are our partners and we welcome their support 

and expertise. However, the SOLVE Act provides the necessary level of flexibility 

to tailor a national program to meet the veteran’s needs at the local level. 

The Texas Veterans Commission fully supports S. 2919 as does The American Legion, Paralyzed Veterans of America, and the National Guard Association of the 

United States. We remain committed in our efforts to serve those who have sacrificed so much, encourage swift passage of the bills and stand by to address any 

concerns or questions the Committee may have. 

172 

PREPARED STATEMENT OF URGENT CARE ASSOCIATION OF AMERICA


524apUCA1.eps
173 


524apUCA2.eps
174 


524apUCA3.eps
175 

LETTER FROM THE VETERANS AND MILITARY LAW SECTION, FEDERAL BAR ASSOCIATION

Dear Senators Isakson and Blumenthal: The Veterans and Military Law Section 

(V&MLS) of the Federal Bar Association is pleased to submit comments on the proposed legislation regarding amendment of the claims appeals process within the 

Veterans Benefit Administration. The opinions herein asserted are those of the Veterans and Military Law Section and not necessarily those of the entire Federal Bar 

Association. 

As a general matter, review of this proposed legislation clearly demonstrates that 

the Secretary desires a more traditional adjudicatory process. However, if that is the 

legislative intent, then there must be a concomitant acceptance of the traditional 

role of paid counsel within that system. The claims system within the Department 

of Veterans Affairs is the only system within the Executive branch of government 

in which the right to paid representation is precluded until the initial record is complete. This legislation is indicative of an increasingly adversarial process in which 

it is critical that there should accrue to the veteran/claimant a corresponding increased right to representation qualified to litigate in the adversarial environment 

created by this legislation. 

There are general issues which significantly affect the process as well, all of which 

may not be subject to address in this legislation, but of which the Committee 

should, in the opinion of V&MLS be aware, as they significantly affect the quality 

and the efficiency of the claim and appeal process, i.e. the environment within which 

this legislation will operate. 

1. Jurisdiction of the CAVC and the Federal Circuit: The CAVC is the only Article 

I court without the judicial authority to provide the litigants before it with a final 

resolution in any case that comes before it. The only relief it may grant an appellant 

is to either reverse/remand or affirm, and even with grounds in the record for reversal, remand is the only possible ultimate resolution at the Court. While historically 

this may have been politically justifiable at the inception of the Court, that justification no longer exists. Granting the CAVC the judicial authority to issue dispositive 

rulings that terminate the potential for repeated remands of appeals on the same 

issues would have an ameliorative effect on backlogs. Similarly the restriction of the 

Federal Circuit’s jurisdiction to regulatory and legislative interpretation is an artificial limitation on the traditional jurisdiction of a U.S. Circuit Court of Appeal and 

in a sense limits the recourse of the veteran population to a full and fair hearing 

of the issues raised. 

2. Qualifications of Board hearing examiners: The abysmal performance of the 

‘‘Veterans Law Judges’’ as reflected in the 2015 Annual Report from the CAVC demands at a minimum the identification and decertification of those whose decisions 

are consistently overturned by the Court. The more prudent approach, in order to 

deconstruct the existing culture at the Board is to require that all hearing examiners at the Board meet Title V Administrative Law Judge standards of qualification. The statistics cited below for the reversal/remand rate for those Board decisions that are appealed to the Court are not unique at all to 2015. They have been 

in those ranges since at least 2002. While transition to Title V ALJs may require 

considerable initial expense, the reduction in necessary remands and improvement 

in quality and consistency of decisions will reduce the number of remands and the 

number of trips around the ‘‘hamster wheel’’ by the individual veteran, his/her survivor or dependent. This will ultimately more than pay for the transition. 

3. Training Issues: There is no transparency regarding the sources or resources 

utilized by the Agency to train its rating personnel. Nor is there any discussion of 

the minimal qualifications for employment as a rater or as a trainee. It is the position of V&MLS that at a minimum applicants for these positions should be required 

to have an Associate Arts degree from a community college with required courses 

in biology, physiology and preferred health care related subjects. Most preferred 

would be a 4 year college degree with courses similarly relevant to the nature of 

subject matter of claims and health care within the VA environment. 

The most egregious deficiencies are in the training of Board personnel. The 2015 

Annual Report issued by the CAVC shows that of the 4,030 dispositions of appeals 

made by the CAVC in 2015, only 445 (11%) were affirmances of Board decisions. 

77% (rounded from 76.6%) of the dispositions of appeals were reversed or remanded 

on at least one ground. There is no excuse for this level of performance on the part 

of any government entity supported by the American taxpayer. There were 2873 

EAJA petitions granted by the Court during this time; a rate of 50% of the remands 

& reversals, indicating that the Agency was substantially in error at least 50% of 

the time. This is indicative of substantial deficiencies in the education of Board personnel. Congress has never addressed this issue. It is time to do so. 

176 

4. Leadership Issues: Disposition statistics of this nature are indicative of first, an 

insular culture with a mindset resistant to the developing CAVC case law by which 

its decisionmaking processes by law are to be governed. Who or what is providing 

the instructional leadership and how is the curriculum developed? Second it is clear 

that the administrative leadership is non-existent. There has been an ‘‘acting’’ Board 

chairperson for far too long. It is time to insist that a qualified Board Chairman 

be appointed and confirmed and given the authority to decline to recertify those 

hearing examiners (euphemistically characterized as ‘‘Veterans Law Judges’’) whose 

decisions result in excessive remands and reversals at the CAVC. Too many appeals 

are at the Court for the second, third and fourth time as a result of the failure of 

the hearing examiners to follow clear instructions given by the Court. 

DISCUSSION OF PROPOSED LEGISLATION

Definitions: The initial proposals to redefine the process by modernizing the definitions under Sect. 101 of Title 38 seeks to remove any barriers perceived to exist 

to the adjudication of claims through reassignment from the Regional Office with 

geographical jurisdiction over the veteran’s claim to ‘‘specialty offices’’ often far removed from the veteran. While there may be some value in doing that in the instances regarding subject matter, codification provides too much incentive to remove 

the matter from any reach by a veteran requesting a review within the Agency of 

Original Jurisdiction (AOJ). 

Similarly , removing the word ‘‘material’’ in lieu of ‘‘relevant’’ in the consideration 

of a readjudicated or ‘‘supplemental’’ claim requires the claimant to ‘‘prove’’ the 

claim through the evidence submitted, a legal standard to which the veteran may 

not be held. Similarly, replacing the terms ‘‘re-opened claim’’ and ‘‘increase in benefits’’ with ‘‘supplemental claim’’ alters the landscape by cluttering the process with 

collateral litigation. The definition proposed does not discriminate the objection to 

the initial rating benefit granted from a later claim for increase in benefits. What 

is clear is that the bar for re-opening a previously denied or insufficiently adjudicated claim would be much higher, and if filed within a year of the original decision, no notification would be required. These provisions contribute to the Agency’s 

increasing view of the claims system as an adversarial environment. 

As matters stand, the claimant veteran, widow or dependent may only retain 

counsel prior to the promulgation of a rating decision on a pro bono basis. The basis 

for this limitation was the premise that the benefits claims system is non-adversarial. The national VSOs were deemed more than capable of assisting the veteran 

in pursuit of compensation. Since the passage of the VJRA there has been a gradual 

shift in the nature of the claims system from non-adversarial to a system increasingly governed by an escalating body of decisional law which is entirely inconsistent 

with the concept of non-adversarial. The proposals in this Bill advance the adversarial elements further than ever before. It is, in the opinion of the V&MLS time 

to revisit the denial of paid representation at the initiation of the claim. 

Duty to Assist: ‘‘(c) Section 5103A(f)’’ underscores the raising of the evidentiary 

bar to re-adjudication of disallowed claims to a standard that requires that new evidence ‘‘prove’’ the claim rather than be simply ‘‘material.’’ 

Any doubt as to the shift to an adversarial environment is removed with the proposed addition of Sect. 5103B removing the obligation of the duty to assist from any 

stage above the initial rating decision. It would, under the provisions of (a), (b) and 

(c) of this amendment exist only within the original rating process and after the 

issuance of a ‘‘notice’’ of the rating decision apply neither to any ‘‘higher review 

within the AOJ’’ nor to any obligation on the part of the Board. Further, the correction of a duty to assist error during a ‘‘higher level review’’ within the AOJ [(1)] 

is dependent upon the ‘‘identification’’ of said error by the reviewer. There is no duty 

imposed upon the reviewer to search for or identify a violation of the duty to assist. 

Remand for correction is required if the claim cannot be granted in full. 

Identification of a duty to assist error at the Board [(2)], if the failure occurred 

prior to the ‘‘notice’’ of the original rating decision, triggers remand for correction 

if the claim cannot be granted in full. This provision also includes a provision that 

allows the Board to order an advisory medical opinion as part of the correction. 

Flaws in the original rating decision are in most instances the result of reliance on 

an inadequate medical exam, followed by failure to obtain critical records and failure to appropriately consider lay evidence. Current litigation and Agency investigations indicate that this aspect of the claims system is far more troubled than was 

previously considered with the revelation that an estimated 25,000 veterans may 

have had improperly conducted exams for TBIs by unqualified examiners. V&MLS 

is concerned that it is essential that opportunity for paid representation and the opportunity to present additional evidence with or subsequent to the NOD is essential 

177 

to improving the cost effectiveness of the system, enhancing the perception of fairness. Ancillary to this concern is that of the lack of any discovery in either the initial 

AOJ rating process or in the review process. Credentials of examining personnel and 

often the identities of examiners and rating personnel are barred from discovery 

procedures available in similar proceedings in other agencies that are in those jurisdictions considered elementary administrative due process. Transparency in this aspect of the system would conserve agency resources In the long run and diminish 

the lengthy appeals and litigation surrounding the issue of adequacy of examinations. 

The Duty to Assist is a cornerstone concept of Veterans Law. It is the creature 

of a paternalistic, veterans-first adjudicatory philosophy inherent in the claims system. It is the concept upon which the entire structure of that system rests. It is also 

the rationale by which paid representation has been limited to the appellate stages 

of the claims process. The imposition of the Duty to Assist at every stage of the 

claims process from the initial processing of the claim through the hearing and the 

consideration before the Board is also the cornerstone of nearly every decision by 

the CAVC. The limitation of the duty to assist as proposed by this legislation poses 

a significant impediment to administrative due process on the part of the impaired 

or pro se veteran before the Agency at any stage of the proceedings. V&MLS strongly opposes any limitation of the duty to assist requirement anywhere in either initial claim or the review of denial of the claim. 

Sect. 5104A: V&MLS has no issue with this provision. Any favorable finding 

should be, as a matter of the law of the case binding on further adjudicatory action. 

Sect. 5104B: The provision, under (b) of this Section requires that a request for 

review by the AOJ be specific as to which office of the AOJ is requested. This requires more precise language. It appears to allow for review by a different set of 

eyes in another office, i.e. more independent review. If this is the case, V&MLS is 

not opposed, and continues to urge that the duty to assist be continued, especially 

for the impaired or pro se claimant. 

(a) V&MLS does not disagree with the concept of permitting a request for higher 

level review within the AOJ. This appears to retain the process of the Decision Review Officer. When this process was allowed to function as it was designed to function it was/is beneficial to efficiency of time and resources and eliminated the need 

for appeals to the Board by resolving the issues at the AOJ. V&MLS approves of 

this provision. 

(b) V&MLS approves of retaining the one year time allocation for filing a Notice 

of Disagreement (NOD). However, V&MLS has significant reservations about prescribing overly restrictive provisions governing the form such disagreement must 

take. The forms ‘‘prescribed by the Secretary’’ are, in their current versions, very 

narrowly worded and spaced. They are clearly designed to limit the scope of the disagreement and are antithetical to allowing the veteran/claimant any freedom of expression. They are also contrary to existing case law regarding the definition of a 

NOD. V&MLS urges the Committee to provide guidelines for content of the NOD 

but to phrase it in the permissive ‘‘should’’ rather than exclusionary mandatory language and to require that the ‘‘form prescribed by the Secretary’’ include sufficient 

space for addressing the claimant’s concerns. 

(c) V&MLS urges language added to this provision that requires that copies of Notices under this provision be supplied to both the claimant and any representative, 

either VSO or counsel. V&MLS recommends that all communication relating notices 

of decisions or decisions be sent by certified mail. V&MLS further urges the Committee to provide for pre-decisional consultation with any representative of record 

for the purpose of resolving evidentiary and legal issues that may have arisen in 

the course of investigating and developing the claim. The purpose for this is to avoid 

unnecessary higher level review and permitting early resolution of issues presented. 

V&MLS notes that ‘‘previewing’’ decisional action is common procedure between rating personnel and VSOs who are often co-located in ROs. This should be standard 

procedure for all representatives, as it is conducive to filling in evidentiary gaps, 

clarification and administrative best practices. 

(d) Evidentiary Record: The added Section 5104B also seeks to close the evidentiary record at the issuance of the initial rating decision. While there are provisions in later elements of this Bill for the submission of further evidence at the 

Board level, to the average pro se veteran, this shuts the door to submission of further evidence. Under this modification of existing law, either a VSO or an attorney 

retained subsequent to the Notice of Disagreement would be ethically bound to seek 

by motion to modify the notice of disagreement to provide for utilizing the ‘‘hearing 

option’’ track at the Board in order to fill in the evidentiary gaps left by either inadequate representation or by the omissions of the pro se veteran. 

178 

The unrepresented veteran who fails to ask for the ‘‘hearing option ‘‘ docket in 

the notice of disagreement and fails to comprehend the consequences of failing to 

do so loses any opportunity to submit additional evidence in this forum short of filing a supplemental claim, in which the evidentiary bar is much higher. Entry into 

the appellate stage by either paid or lay representation, under this provision, would 

require a motion to amend the notice of disagreement to request a ‘‘hearing option’’ 

docket or higher AOJ review in order to fill in the evidentiary gaps or argue evidence that is relevant but otherwise not of record. 

V&MLS categorically disagrees with this provision as it constitutes as a denial 

of procedural due process and is utterly contrary to the concept of a ‘‘veteran-centric 

VA,’’ unless provision is made for notice of this limitation prominently articulated 

within the body of the rating decision. Such notice should also advise the claimant 

that selection of the ‘‘hearing option’’ docket in an appeal to the Board will permit 

the submission of further evidence. 

The fact remains that the combined effect of limitation of submission of further 

evidence, limitation of the duty to assist and raising the evidentiary bar for supplemental claims/readjudication leaves very little that is non-adversarial within the 

system. While amending Sect. 5904 to allow the veteran paid representation subsequent to the notice of decision by the AOJ is somewhat ameliorative it fails to permit the veteran access to paid representation in order to better ensure that the AOJ 

adequately develops the record from the beginning. It should be noted that doing 

so accords the veteran the Sixth Amendment right to representation by counsel enjoyed by every claimant before every other Administrative agency. 

(e) V&MLS agrees that any review by any entity within the Agency at any level 

should be DE NOVO 

Sect. 5104(b): The enumeration of required contents of any notice of denial of benefits is certainly useful, but the language of this amendment appears to codify that 

which has previously appeared as ‘‘Statement of the Case.’’ Limitations should be 

included which preclude the utilization of endless ‘‘explanations’’ which yield no aids 

to comprehension and serve only to obfuscate the obvious. The inclusion of the requirement that the content state simply and precisely the basis for the decision in 

terms readily understood by an unrepresented claimant. V&MLS would then be supportive of this provision. 

Proposed Sect. 5104(b) requires, within the enumeration of elements of a denial, 

(if applicable), identification of criteria that must be satisfied in order to grant (the 

benefit sought). Yet, any higher review must be done on the basis of evidence considered in the initial development. This is utterly inconsistent and will engender 

substantial numbers of ‘‘supplemental’’ claims. It makes no sense to require the 

Agency to advise the claimant of what evidence is missing and at the same time 

preclude the introduction during the Higher Review of evidence that will satisfy the 

missing elements. This is not an issue of legal sufficiency or insufficiency; it is a 

matter of common sense. 

Sect. 5108, Supplemental Claims: This amendment of Sect. 5108 replaces ‘‘reopened claims’’ with ‘‘supplemental claims:’’ Under this provision ‘‘new and relevant’’ 

evidence is required for the adjudication of a supplemental claim. This once again 

raises the adjudicatory bar much further than does the language of the existing provision. Whereas ‘‘material’’ requires only that the evidence tend to influence the 

trier of fact because of its logical connection to the issue, ‘‘relevant’’ would raise the 

bar to evidence that relates to or bears directly on point or fact in issue; proves or 

has tendency to prove a pertinent theory in the case. This is a technical, legal requirement imposed on a process that is required to be veteran-centric. This language is a trap for the pro se claimant, inviting a quick denial. V&MLS urges the 

Committee to recognize that this is once again a further shift to an adversarial process in which paid representation should be a recognized right accruing to the claimant. 

Sect. 5109 is given a new subsection under which the Board may remand a claim 

to the AOJ for procurement of an advisory medical opinion to correct an error by 

the AOJ to satisfy its duties under 5103A when the error occurred prior the AOJ 

decision on appeal. This adds an unnecessary step to the review process—requiring 

the matter to be remanded yet again. Nor does it specify whether this applies to 

errors on the part of a ‘‘higher-level reviewing authority’’ within the AOJ. As a significant number of duty to assist errors are incident to inadequacies of medical 

exams, this should be clarified. 

Sect. 5904, Amendment: The proposed amendment of (c)1 and (c)2 appears to 

move the point at which paid representation becomes available to the veteran to the 

point of the issuance of the decision on the initial claim by the AOJ; ‘‘notice of the 

Agency of Original Jurisdiction’s initial decision under Section 5104 of this Title.’’ 

179 

Under the existing statutory provisions paid representation is not available to a veteran/claimant until the point at which the Notice of Disagreement is filed. 

Given the existing political climate, the ban on the availability to the veteran of 

paid representation at the initial submission of a claim may be unlikely to be lifted. 

However, it should be noted that Congress has, within the last decade, recognized 

the advisability of allowing paid representation before the Agency. Merely providing 

an opportunity for paid representation prior to submission of the notice of disagreement is a benefit without practical application; there is no mechanism for repairing 

a deficient record prior to filing the Notice of Disagreement before the door to submission of additional evidence is closed. The pro se veteran, especially an impaired 

pro se veteran is out in the cold. In view of the proposed significant restriction of 

the opportunities for introduction of additional evidence, it is critical that these provisions be as broad as possible. V&MLS supports this provision with significant reservations as stated above. 

Sect. 7105, Amendments: V&MLS is supportive of the proposed amendment (b)(1), 

establishing the time for the filing of the notice of disagreement within one year of 

the mailing of the notice of the Agency of Original Jurisdiction’s decision. 

The proposed amendment of (b)(2) establishes legal, technical requirements of allegation of specific errors of law or fact to be inscribed on the Secretary’s specific 

form. Once again, the process shifts further toward an adversarial process in which 

the unrepresented claimant is presumed to have an unrealistic level of knowledge 

or expertise. While the opportunities for representation are broadened, the fact is 

that significant numbers of claimants/appellants before the Board and the Court are 

unrepresented (27% of appellants at the Court were pro se at filing the NOA in 

2015). It is critical to the veteran-centric intent of the claims process that there are 

provisions for liberal interpretation of what constitutes conformity with the requirement of this provision as proposed. V&MLS urges careful attention to language in 

this provision as proposed and implementing regulations to avoid adverse impact on 

the pro se claimant. 

V&MLS is supportive of the proposed amendment (b)(3) in that it establishes a 

three track option for appealing the decisions of the Agency of Original Jurisdiction 

to the Board. We do, however, suggest that the language more clearly identify the 

tracks by enumeration. 

V&MLS is similarly supportive of the proposed language of Sect. 7105(c), maintaining the jurisdictional finality of Agency of Original Jurisdiction decisions that 

remain unappealed after one year. 

The provisions of 7105(d) as amended eliminate the Statement of the Case and 

the laborious process it entailed. V&MLS agrees with this provision with the proviso 

that in order to maintain the veteran-centric character of the claims process that 

the language also provide that submissions by pro se claimants be read liberally for 

allegations of error of law and fact. The unschooled or impaired pro se claimant 

must not be penalized by technical legalistic requirements he/she is incapable of 

meeting. 

Sect. 7106: V&MLS supports the deletion of Sect. 7106. 

Sect. 7107: V&MLS supports the amendment of Sect. 7107(a), (b) and (c) as proposed. V&MLS does, however, urge that sub-section (f) be amended to require that 

the Board screen those cases in which the claimant is pro se for adequacy of the 

record and undertake such further development as may be necessary to satisfy the 

duty to assist. In this regard V&MLS re-iterates our strong disagreement with the 

elimination of the duty to assist after the initial rating decision. 

Sect. 7113: V&MLS supports the provisions of this Section with the caveat that 

the due process requirements of the duty to assist be afforded the pro se appellant, 

particularly if review of the record demonstrates that the appellant is impaired. 

This additional provision is consistent with V&MLS position regarding the proposed 

restrictions on duty to assist, submission of evidence and the impact of these measures on the pro se and impaired claimant. 

* * * * * * * 

REVISION OF EVIDENTIARY THRESHOLD FOR MEDICAL EXAMINATIONS AND OPINIONS. 

V&MLS strongly opposes this proposal. It constitutes an effort to overturn the 

longstanding precedential decision of the Court of Appeals for Veterans Claims in 

McLendon v. Nicholson, 22 Vet. App 79 (2004). This decision rested on the determination by CAVC that VA’s failure to order a C&P exam was arbitrary and capricious and a violation of the Duty to Assist. It was determined by the Court that 

the provisions of Sect. 5103(d) established a very low threshold for the requirement 

for medical examinations. In writing this decision, Judge Kasold iterated several examples of the linkage that this provision is designed to establish information, (inter 

180 

alia—exposure to artillery fire indicative later development of hearing loss) that assists in informing the rater of another piece of the nexus picture to ensure that the 

rater has all of the information necessary to reach an informed and fair decision. 

The language of the proposed revision imposes on the claimant the requirement 

of ‘‘objective evidence.’’ This raises the evidentiary bar to the level of proof, rather 

than ‘‘indication.’’ It appears that the proponent of this provision would require that 

the three elements articulated in (A) be met in order to reach the point that a C&P 

exam is required. Judge Kasold emphasized in the opinion that ‘‘Although the claimant may and should assist in processing a claim, it is the Secretary who has the 

affirmative, statutory duty to assist the veteran in making his case (Cit. omitted). 

It is the Secretary who is required to provide the medical examination when the 

first three elements of section 5103(d)(2) are satisfied, and the evidence of record 

otherwise lacks a competent medical opinion regarding the likelihood of medical 

nexus between the in-service event and a current disability. The Board is not competent to provide that opinion.’’ McLendon, supra, at 86 V&MLS cannot support this 

provision. Given the pending legislation before this Committee which proposes 

elimination of the duty to assist beyond the original decision by the AOJ, this is 

an unacceptable attempt to shift the burden entirely onto the claimant. 

It should also be noted that implementation of a treating physician rule, wherein 

the VA treating physician (as well as the private physician when appropriate) are 

consulted on issues of nexus would improve the quality of medical evaluations and 

go a long way in relieving the stress of physician availability in VHA. The rationale 

that treating physicians will have too much sympathy for the patient to provide an 

unbiased opinion is specious at best as well as demeaning to the professional integrity of the treating physician. At a time when VHA is suffering from an acute shortage of medical personnel the continued duplication of effort in this regard is a waste 

of taxpayer dollars. 

* * * * * * * 

S. 2487: V&MLS supports this Bill with one qualification. We respectfully request 

that a provision be added in which VA is required to coordinate with Indian Health 

Service (IHS) to develop culturally competent suicide prevention programs for Indian women veterans. There are at this time no culturally competent mental health 

programs for Indian veterans at all. Indian women veterans, particularly those with 

MST/PTSD are at a very high risk because of the cultural consequences of their experiences. This bill needs to address that issue. 

S. 2679: V&MLS supports this Bill without reservation. The results of toxic exposure in Vietnam have yet to be fully counted. The generational effects have been 

largely ignored or swept under the rug of bureaucratic accountability. The children 

of the Vietnam veterans are now those in SW Asia; exposed to the toxins of the burn 

pits, burning oil fields, unidentified ordinance; we cannot afford to repeat the errors 

of yesterwar. This legislation is badly needed. We urge Congress to establish this 

Center for Excellence and monitor its progress annually. 

S. 2888: V&MLS supports this Bill without reservation. The residuals of longterm exposure to contaminated water at Camp LeJeune are, again, not fully measured. Of particular concern are the families who lived on-post and raised children 

there. We urge that this legislation include substantial outreach to those veterans 

and families in order to study and address the down-range effects of this extensive 

contamination. It should be considered as well that many military families from outside Camp LeJeune accessed base medical, commissary and exchange facilities. This 

is commendable legislation that is needed to provide oversight and guidance to ensure VA’s address of these issues within VBA. 

S. 2919; S. 2896; S. 2883; S. 2520; S. 2049: V&MLS is supportive of all of these 

measures as each provides for an area in which either VA has demonstrated a need 

for guidance or the circumstances of service have resulted in a separate need, as 

is demonstrated with the introduction of S. 2919. 

Respectfully submitted, 

THE VETERANS & MILITARY LAW SECTION, 

FEDERAL BAR ASSOCIATION

Addendum: 

181 


524apVML1.eps
182 


524apVML2.eps
183 

Æ 


524apVML3.eps