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68–458 2011

LEGISLATIVE HEARING ON H.R. 923, H.R. 1025, 

H.R. 1826, H.R. 1898, AND H.R. 2349 

HEARING 

BEFORE THE

SUBCOMMITTEE ON DISABILITY ASSISTANCE AND 

MEMORIAL AFFAIRS 

OF THE

COMMITTEE ON VETERANS’ AFFAIRS 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

JULY 7, 2011 

Serial No. 112–22 

Printed for the use of the Committee on Veterans’ Affairs 

( 


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COMMITTEE ON VETERANS’ AFFAIRS 

JEFF MILLER, Florida, Chairman 

CLIFF STEARNS, Florida 

DOUG LAMBORN, Colorado 

GUS M. BILIRAKIS, Florida 

DAVID P. ROE, Tennessee 

MARLIN A. STUTZMAN, Indiana 

BILL FLORES, Texas 

BILL JOHNSON, Ohio 

JEFF DENHAM, California 

JON RUNYAN, New Jersey 

DAN BENISHEK, Michigan 

ANN MARIE BUERKLE, New York 

TIM HUELSKAMP, Kansas 

Vacancy 

Vacancy 

BOB FILNER, California, Ranking 

CORRINE BROWN, Florida 

SILVESTRE REYES, Texas 

MICHAEL H. MICHAUD, Maine 

LINDA T. SA ́ NCHEZ, California 

BRUCE L. BRALEY, Iowa 

JERRY MCNERNEY, California 

JOE DONNELLY, Indiana 

TIMOTHY J. WALZ, Minnesota 

JOHN BARROW, Georgia 

RUSS CARNAHAN, Missouri 

HELEN W. TOLAR, Staff Director and Chief Counsel 

SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS 

JON RUNYAN, New Jersey, Chairman 

DOUG LAMBORN, Colorado 

ANN MARIE BUERKLE, New York 

MARLIN A. STUTZMAN, Indiana 

Vacancy 

JERRY MCNERNEY, California, Ranking 

JOHN BARROW, Georgia 

MICHAEL H. MICHAUD, Maine 

TIMOTHY J. WALZ, Minnesota 

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public hearing records 

of the Committee on Veterans’ Affairs are also published in electronic form. The printed 

hearing record remains the official version. Because electronic submissions are used to 

prepare both printed and electronic versions of the hearing record, the process of converting 

between various electronic formats may introduce unintentional errors or omissions. Such occurrences are inherent in the current publication process and should diminish as the process 

is further refined. 


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C O N T E N T S 

July 7, 2011 

Page 

Legislative Hearing on H.R. 923, H.R. 1025, H.R. 1826, H.R. 1898, and 

H.R. 2349 .............................................................................................................. 1 

OPENING STATEMENTS 

Chairman Jon Runyan ............................................................................................ 1 

Prepared statement of Chairman Runyan ..................................................... 32 

Hon. Jerry McNerney, Ranking Democratic Member ........................................... 2 

Prepared statement of Congressman McNerney ............................................ 33 

Hon. Alcee L. Hastings ............................................................................................ 3 

Prepared statement of Congressman Hastings .............................................. 33 

Hon. Gus M. Bilirakis ............................................................................................. 5 

Hon. Timothy J. Walz .............................................................................................. 5 

WITNESSES 

U.S. Department of Veterans Affairs, Thomas Murphy, Director, Compensation Service, Veterans Benefits Administration ................................................ 23 

Prepared statement of Mr. Murphy ................................................................ 48 

American Federation of Government Employees, AFL–CIO, and AFGE National Veterans Affairs Council, Jimmy F. Sims, Jr., AFGE Local 1738 

Steward, and Rating Veterans Service Representative, Veterans Benefits 

Administration Regional Office, Winston-Salem, NC, U.S. Department of 

Veterans Affairs ................................................................................................... 13 

Prepared statement of Mr. Sims ..................................................................... 43 

American Legion, Ian de Planque, Deputy Director, National Legislative Commission .................................................................................................................. 9 

Prepared statement of Mr. de Planque ........................................................... 36 

Disabled American Veterans, Jeffrey C. Hall, Assistant National Legislative 

Director ................................................................................................................. 10 

Prepared statement of Mr. Hall ...................................................................... 38 

Enlisted Association of the National Guard of the United States, Al Garver, 

Executive Director ................................................................................................ 12 

Prepared statement of Mr. Garver .................................................................. 42 

National Organization of Veterans’ Advocates, Inc., Richard Paul Cohen, Esq., 

Executive Director ................................................................................................ 15 

Prepared statement of Mr. Cohen ................................................................... 46 

Veterans of Foreign Wars of the United States, Raymond Kelley, Director, 

National Legislative Service ................................................................................ 7 

Prepared statement of Mr. Kelley ................................................................... 35 

SUBMISSIONS FOR THE RECORD 

Paralyzed Veterans of America, statement ........................................................... 50 

Reserve Officers Association of the United States, and Reserve Enlisted Association of the United States, joint statement ..................................................... 51 

MATERIAL SUBMITTED FOR THE RECORD 

Hon. Eric K. Shinseki, Secretary, U.S. Department of Veterans Affairs, to 

Hon. Jon Runyan, Chairman, Subcommittee on Disability Assistance and 

Memorial Affairs, Committee on Veterans’ Affairs, letter dated 

September 6, 2011, providing views for H.R. 2349 ........................................... 54 


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iv 

Thomas J. Murphy, Director, Compensation and Pension Service, Veterans 

Benefits Administration, U.S. Department of Veterans Affairs, to Director 

(00/21), All VA Regional Office Centers, Fast Letter 10–51, dated 

November 22, 2010 .............................................................................................. 56 


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LEGISLATIVE HEARING ON H.R. 923, H.R. 1025, 

H.R. 1826, H.R. 1898, AND H.R. 2349 

THURSDAY, JULY 7, 2011 

U.S. HOUSE OF REPRESENTATIVES, COMMITTEE ON VETERANS’ AFFAIRS, SUBCOMMITTEE ON DISABILITY ASSISTANCE AND

MEMORIAL AFFAIRS, Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:50 p.m., in Room 

334, Cannon House Office Building, Hon. Jon Runyan [Chairman 

of the Subcommittee] presiding. 

Present: Representatives Runyan, Lamborn, Buerkle, McNerney, 

Barrow, and Walz. 

Also present: Representatives Bilirakis and Hastings. 

OPENING STATEMENT OF CHAIRMAN RUNYAN 

Mr. RUNYAN. Good afternoon, the Legislative Hearing on H.R. 

1025, H.R. 1826, H.R. 1898, H.R. 923, and H.R. 2349 will come to 

order. I want to thank you all for attending today’s hearing. 

As the first order of business, I ask unanimous consent that all 

Members present be allowed to sit at the dais, and hearing none 

opposed so ordered. 

I realize that it was a short turn around time for the witness’s 

invitations to this hearing due to the recent holiday we had. 

With that, however, we are disappointed in the late submission 

of testimony by the U.S. Department of Veterans Affairs (VA), as 

this is becoming a habit on their part. And even in their written 

testimony they have not submitted any statement on H.R. 2349. 

I am hopeful that the VA will be able to provide us with the written testimony on that bill by the close of business on Monday, July 

11th, so that we might be able to weigh the VA’s input before the 

next mark up meeting of the Subcommittee. 

[The VA subsequently provided views to the Committee on September 6, 2011, which appears on p. 54.] 

Mr. RUNYAN. Before I recognize the Ranking Member, Mr. 

McNerney, and other Members of the Subcommittee, I wanted to 

briefly touch on H.R. 2349, which I have introduced. 

H.R. 2349, the ‘‘Veterans Benefit Training Act Improvement of 

2011,’’ aims to improve the benefit claims process through focusing 

on individual training and skills assessment. The bill creates an individualized training program for all employees and managers who 

process or supervise the processing of disability claims. 

Annually these members would take the test and assess their 

skills related to the claims processing. 


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Following the test, the VA would create an individualized training program for each employee who took the test. The individualized program will focus on areas of the test where the employees 

showed the greatest deficiency or need for improvement. The focus 

on the individual deficiencies would avoid redundant, blanket 

training that many employees already endure. 

There is no reason why an employee of 20 years should be taking 

the same training as an employee who has been in the VA for only 

2 years. 

I hope that by establishing this program, we are able to encourage employees and managers alike to slow down and do the claims 

right the first time. Improving the number of claims sent out the 

door is not enough if the veteran is continually seeing mistakes 

being made on his claim. Quality must be improved, and the only 

way to improve quality is to make sure the VA employees are 

trained properly. 

While I understand that some believe this bill is very similar to 

the certification testing that Congress required a few years ago, it 

is different and needed because it provides individualized metrics 

and requires follow through with the training retesting necessary 

to be truly effective. 

I ask all of today’s witnesses to summarize your written statement within the 5 minutes allotted, and without objection each 

written statement will be made part of the hearing record. 

Before I begin my testimony, I will now yield to the distinguished 

Ranking Member from the great State of California, Mr. 

McNerney, for any remarks. 

[The prepared statement of Chairman Runyan appears on p. 32.] 

OPENING STATEMENT OF HON. JERRY MCNERNEY 

Mr. MCNERNEY. Thank you, Mr. Runyan, I appreciate the introduction. 

Today we are going to consider five bills, the impact of the legislation, and explore some of the what will come out if we do pass 

those bills. 

We are going to take up H.R. 923, H.R. 1025, H.R. 1826, H.R. 

1898, and H.R. 2349. 

The first one of those, the ‘‘Pension Protection Act of 2011,’’ H.R. 

923, was introduced by my good friend and colleague, Alcee 

Hastings of Florida, and this bill and prohibit the VA from counting casualty losses and pain and suffering payments as income for 

the purpose of determining eligibility for non-service-connected 

pension benefits. 

I think this is a worthwhile bill, it is on track from a policy perspective, and I look forward to advancing this to the full Committee. 

The second bill on today’s agenda, H.R. 1025, sponsored by Mr. 

Walz, again, a good friend and colleague, a hard working man who 

always has the interests of veterans at hand, would grant honorary 

veteran status to retired members of the Guard and Reserve who 

completed 20 years of service. 

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eran status as outlined in the VA testimony and with some of the 

veterans service organizations (VSOs). 

The next one is H.R. 1826, introduced by our colleague, Mr. Bilirakis, would provide criminal penalties against any person who solicits, contracts for, charges, or receives fee or compensation from 

a veteran for advice on how to file a benefits claim or the preparation, presentation, or prosecution of a claim before the date of 

which a notice of disagreement is filed and then proceeding on that 

claim. 

Our Nation’s veterans have sacrificed so much that we need to 

protect them from those kind of bad actors looking to take advantage of the benefits that they have earned and deserve; however, 

I have heard concerns that this bill may create unintended negative effects on veterans seeking help from available resources as 

well as whether imposition of criminal provisions are necessary in 

the light of current law and regulations—or are even realistically 

enforceable. 

The next is H.R. 1898, the ‘‘Veterans Second Amendment Protection Act,’’ sponsored by Mr. Denny Rehberg of Montana, would require that a judicial authority adjudicate a veteran or other beneficiary in need of fiduciary assistance as mentally defective for the 

purposes of reporting to the Department of Justice (DOJ) the national instant background check system instead of the current system, which requires VA to report these individuals to the National 

Instant Check System (NICS). 

The final piece of legislation, H.R. 2349, the ‘‘Veterans’ Benefits 

Training Improvement Act,’’ is your bill, Mr. Chairman, which attempts to hold the Veterans Benefits Administration (VBA) to 

greater testing and training requirements. 

I think you have the best interest of our veterans in mind, nonetheless I have concerns that its provisions may be duplicative or 

run counter to the law on testing certification and training as established in P.L. 110–389; however, I understand that the VA reports that it received the bill too late in the time frame to provide 

views, and I want the Subcommittee to have the benefit of all 

stakeholders before making a final decision on this measure. 

These are all worthwhile measures, they deserve consideration 

by the Subcommittee, and I thank all the Members for their 

thoughtful legislation, and I thank our esteemed witnesses for joining us today, and I look forward for your testimony. I thank you 

again and yield back. 

[The prepared statement of Congressman McNerney appears on 

p. 33.] 

Mr. RUNYAN. Thank you, Mr. McNerney, and the other three 

Members up here on the dais all have a piece of legislation that 

they sponsored, so I wanted to open it up to opening statements. 

Mr. Hastings? 

OPENING STATEMENT OF HON. ALCEE L. HASTINGS 

Mr. HASTINGS. Thank you, Mr. Chairman. I have to go and help 

prepare us a rule at the Rules Committee, and that is going to 

cause me to stay under the 5-minute limit. 

But any way, Chairman Runyan, Ranking Member McNerney, 

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committee, and I thank my colleague Mr. Walz for letting me precede him. 

I especially am grateful, Mr. Chairman, to the panel that you 

have, panels one and two, and I met some of the gentlemen and 

know some of the organizations that they work with, and I am very 

pleased that they can be here with you today. 

I also would like to thank your staff and the Minority staff for 

accommodating those on the staff that work with me, and also for 

the incredible work that you all do here in this Committee on behalf of our Nation’s veterans. 

Exactly a year ago I testified before this Committee, or the Subcommittee on this Veterans’ Pensions Protection Act of 2010. The 

bill was marked up, forwarded to the Committee on Veterans’ Affairs by voice vote. 

I am grateful now for the opportunity to bring it once again, and 

I am saddened by the fact that the Senate didn’t consider the bill 

before Congress adjourned last year, and I am hopeful this year 

that they will. 

I will accept your admonition, Mr. Chairman, and have any full 

statement introduced into the record, but I do want to say what 

happened here that gave rise to the office that I work with coming 

to this veteran’s aid. 

His name is Kerry Scriber and he is a Navy veteran with muscular dystrophy. He had his pension abruptly canceled, and how it 

happened, he didn’t break the law nor did he commit any crime. 

In March of 2008 Mr. Scriber was hit by a truck when crossing 

a street in his wheelchair with his service dog on his way to the 

pharmacy. He was thrown 10 feet in the air, witnesses describe it 

as absolutely remarkable that he survived, he suffered broken 

bones and teeth, and his service dog was injured and his wheelchair was destroyed. 

He reported the incident to the VA, and when assessing his circumstances after he received an award for his damages, his pension was summarily rejected, and he made every effort that he 

could before it came to the attention of the office in West Palm 

beach that I represent. Then staff got involved, I got involved, the 

newspapers got involved and I wrote to VA, sometimes not hearing 

back from them, talked personally with then Secretary Shinseki, as 

well as wrote letters to him, and they didn’t change their policy nor 

did they resolve Mr. Scriber’s benefits for a whole year. 

Now, I understand that the VA faces a whole lot of challenges 

and they are going to face a whole lot more. As you all know better 

than I, with servicemembers that are going to be returning from 

the battle field throughout the world, but I feel, and I am sure you 

do Mr. Chairman and Ranking Member and all the Members of 

this Subcommittee, that we must do everything in our power to ensure that our veterans have the benefits they rightly deserve. 

I am distraught that the VA can move so expeditiously to cancel 

somebody’s pension when they are an unemployed and disabled 

veteran without notice, and I feel they have a moral obligation to 

undertake to do better. 

I have stayed within 5 minutes, Mr. Chairman. My full statement is going to be available for the record, and I genuinely am 


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appreciative of you and the Subcommittee for having an opportunity to present. 

[The prepared statement of Congressman Hastings appears on 

p. 33.] 

Mr. RUNYAN. Thank you for your words, Mr. Hastings. 

Mr. Bilirakis, I believe you are prepared for an opening statement of 5 minutes. 

OPENING STATEMENT OF HON. GUS M. BILIRAKIS 

Mr. BILIRAKIS. Thank you, Mr. Chairman, I appreciate it very 

much. Thanks for allowing me to sit on the Committee today. 

I am honored that a piece of legislation that I have introduced 

and I have been an advocate for since the 111th Congress is on today’s schedule. 

My bill, H.R. 1826, would reinstate criminal penalties on any individual charging veterans unauthorized fees for claims before the 

VA. It is already illegal to charge veterans in conjunction with filing a benefits claim to the VA, so we are not changing the law 

here, we are just adding penalties; however, as I said, no penalty 

exists for individuals who unlawfully charge for such claims, and 

this has happened several times in my district. Our veterans are 

being taken advantage of. 

While many VSOs help veterans to file their claims free of 

charge, veterans are often unaware that this benefit exists thereby 

opening the door for con artists to charge hundreds or even thousands of dollars each time a veteran files a claim. 

My bill would simply make this offense punishable by up to 1 

year in prison or fines. 

The VA must have the tools necessary to stop crooked businesses 

from preying on our disabled veterans. 

This bill does not change veterans current rights to hire counsel 

for general advice about benefits or use any accredited entity for 

preparation, presentation, or prosecution of a claim. This is happening quite a bit and it must stop, 

Mr. Chairman, again, we are not changing the law, we are just 

making it enforceable by adding the legal penalties because there 

is no prosecution currently. 

Thank you very much, and I yield back the balance of my time. 

Mr. RUNYAN. Thank you very much, and I believe Mr. Walz also 

has an opening statement. 

OPENING STATEMENT OF HON. TIMOTHY J. WALZ 

Mr. WALZ. Well, thank you, Mr. Chairman. I would like to take 

a minute to commend both you and the Ranking Member, as well 

as the Majority and Minority staff for what I consider to be a great 

work ethic in this Subcommittee, a sense of urgency to get things 

done, and the pace of works that we are moving things. I am very 

appreciative of that. I think the understanding that it is required 

of us by our veterans and you are certainly taking that seriously, 

so thank you for that, and thank you for the opportunity to bring 

this piece of legislation forward. 

H.R. 1025, as many of you know, is a veteran status bill, and I 

think the Ranking Member brought up some very good points, but 

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ponents, who take the very same oath as our active-duty counterparts who are asked to do the same physical training standards 

and job training standards, who are held to the same Uniform Code 

of Military Justice (UCMJ) requirements, and who on any given 

day could and are often called to duty. 

Their sacrifice of time and energy for this Nation is not questioned, but I think something that many of us have been keenly 

aware of, the public maybe not so much is, is that while these people can serve 20 years doing this never being called for a period 

of 180 days or more denies them only one thing, they are eligible 

for the GI Bill, they are eligible for many veterans benefits, the one 

thing they are not eligible for is the official status of being called 

a veteran. 

This piece of legislation does not add any benefits, it scored at 

a zero cost, but I would argue that not doing so the cost to our Nation is to not honor that service the way we should, and I understand the concerns and I thank the VSOs who have worked on this. 

I understand the concerns about differentiating or this very 

hypersensitive to setting precedence when it comes to veterans, but 

I think among veterans it is very clear, and each honors the other 

for their service, and inside that sisterhood and brotherhood of 

arms there is a clear understanding of the respect and the difference given to people in combat as well as those who supported 

that combat to make it possible to be done. 

And with that this piece of legislation does nothing more than 

change the status in title 38 of veterans of those retired Guard 

components who have completed 20 or more years of service, but 

not considered veterans. 

And many of the people in this room understand for many, many 

years many of us in the Reserve component did many tours of 179 

days, and that was on purpose to not get to the 180th day even 

though it was 179 days, a day off, and then another 179 days, and 

I think the issue here is one of correcting an injustice of setting the 

record straight amongst those who have served and conferring that 

status of veteran. 

I think there is a great attention to detail amongst veterans that 

if someone says you were awarded two Army achievement metals, 

if that is untrue the person would say, no, one Army achievement 

metal and one commendation metal or whatever it might be. We 

are very clear about that service. 

This case is you have a lot of veterans, they did 20 years, and 

I would give the example of this, there were many honorable professional soldiers who came and trained me, and because I was 

called to a period of service I am considered a veteran and they are 

not. That is an injustice and that is wrong and I think this piece 

of legislation straightens that out. 

I appreciate the opportunity to have it heard, Mr. Chairman and 

the Ranking Member, as I said, and I look forward to the testimony 

of some of the concerns or anything that could be put in to alleviate 

any of those concerns. 

And, I yield back, Mr. Chairman. 

Mr. RUNYAN. Thank you, Mr. Walz, for your personal insight on 

this and your passion. It is obviously something, as you said in 


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your statement, that has been taken advantage of to the demise of 

our veterans, so thank you for that. 

With that I will ask the first panel to come please step forward. 

Today we have with us Mr. Raymond Kelley representing the 

Veterans of Foreign Wars (VFW), Mr. Ian de Planque from the 

American Legion, Mr. Jeffrey Hall from the Disabled American 

Veterans (DAV), Mr. Al Garver from the Enlisted Association of the 

National Guard of the United States (EANGUS), Mr. Jimmy Sims 

of the American Federal of Government Employees (AFGE), and 

Mr. Richard Cohen representing National Organization of Veterans’ Advocates (NOVA). 

Mr. Kelley, you are now recognized for 5 minutes for your statement. 

STATEMENTS OF RAYMOND KELLEY, DIRECTOR, NATIONAL 

LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF 

THE UNITED STATES; IAN DE PLANQUE, DEPUTY DIRECTOR, 

NATIONAL LEGISLATIVE COMMISSION, AMERICAN LEGION; 

JEFFREY C. HALL, ASSISTANT NATIONAL LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS; AL GARVER, EXECUTIVE DIRECTOR, ENLISTED ASSOCIATION OF THE NATIONAL GUARD OF THE UNITED STATES; JIMMY F. SIMS, JR., 

RATING VETERANS SERVICE REPRESENTATIVE, VETERANS 

BENEFITS ADMINISTRATION REGIONAL OFFICE, WINSTONSALEM, NC, U.S. DEPARTMENT OF VETERANS AFFAIRS, AND 

AFGE LOCAL 1738 STEWARD, AMERICAN FEDERATION OF 

GOVERNMENT EMPLOYEES, AFL–CIO, AND AFGE NATIONAL 

VETERANS AFFAIRS COUNCIL; AND RICHARD PAUL COHEN, 

ESQ., EXECUTIVE DIRECTOR, NATIONAL ORGANIZATION OF 

VETERANS’ ADVOCATES, INC. 

STATEMENT OF RAYMOND KELLEY 

Mr. KELLEY. Thank you, Mr. Chairman, thank you Members of 

the Subcommittee. 

On behalf of the 2.1 million members of the Veterans of Foreign 

Wars and our auxiliaries, thank you for the opportunity to testify 

today. 

My testimony provides VFW’s opinion on all the bills that are 

being heard today, but due to time I think I will just refer to three 

of them. 

The VFW strongly supports H.R. 1025, which would give men 

and women who choose to serve our Nation in the Reserve component the recognition their service demands. 

So thank you, Mr. Walz, for your advocacy on this issue. You understand better than most that many who serve in the National 

Guard and Reserve are in a position that train for and support the 

deployments of their active-duty comrades to make sure the unit 

is fully prepared when called upon. Unfortunately, some of these 

men and women serve at least 20 years and are now entitled to retirement pay, TRICARE, and other benefits, but are not considered 

a veteran according to the letter of the law. 

It is time to provide the respect that has been earned for so 

many years of preparing for and supporting the defense of our Nation. 


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This bill is also supported by the Military Coalition, which is 

made up of 34 organizations with a member representation of 5.5 

million servicemembers, their families, and veterans throughout 

the United States. 

The Veterans of Foreign War strongly supports H.R. 1826, which 

would make it a crime for individuals or companies to charge veterans for assistance in applying for disability benefits. Federal law 

prohibits charging fees for a disability claim, but VA is currently 

unable to enforce the law as there are no penalties or fines imposed. This bill would make it a misdemeanor with penalties and 

up to 1 year in prison. 

Protecting our veterans from individuals and companies who are 

profiteering from their service and sacrifice will ensure the veterans interest are the only interest considered when a disability 

claim is filed. 

Chairman Runyan, thank you for seeing the importance of producing quality disability claims. The VFW agrees that to successfully reduce the backlog and to fix the claims processing system, 

producing a quality claim the first time is a critical part of that 

success. Your bill, H.R. 2349, begins the task of ensuring VA employees who produce claims have the core competencies and retain 

those competencies in an occupation that is always changing by 

evaluating their skills; however, much like the Employee Certification Act of 2008, now section 7732A of title 38, this bill is a container that will be filled with a VA solution. 

As we have found with the Employee Certification Act, that 

training solution has not been beneficial to improving quality 

claims. The VFW’s concern is that VA’s solution will not be geared 

towards truly improving quality, but because of the constant pressure VA is under to reduce the backlog. The training that will be 

developed will likely only conform to law failing to achieve the goal 

of ensuring that claims processors have the tools they need to 

produce quality work. 

A more specific evaluation and training system is needed to ensure that mutual goals of increasing quality claims. To do this 

VFW believes the training and evaluation should be based on the 

findings of the Systematic Technical Accuracy Review system or 

STAR. Each month STAR reports on the quality of each regional 

office. To truly improve quality, training should be ongoing and 

based on the findings of the STAR report and conducted monthly 

to correct deficiencies. 

I don’t think any of us in employment would like to wait till the 

end of the year to find out what we are doing wrong and then be 

taught how to correct it. We all want to do the job right as we are 

moving along, and doing it this way would take that into account. 

Tying quality assurance with quality control will ensure that VA 

employees are being trained on issues that have negatively impacted the quality of claims. Also, the VFW suggests that the report to Congress should have an explanation of how the assessments were conducted. This explanation should include the types 

of assessment that were conducted and who was responsible for the 

evaluations. Basing success of training on assessment results alone 

will not provide a full picture of the quality of the training. 


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This concludes my testimony, I will be happy to answer any 

questions at this time. 

[The prepared statement of Mr. Kelley appears on p. 35.] 

Mr. RUNYAN. Thank you very much, Mr. Kelley. 

Mr. de Planque. 

STATEMENT OF IAN DE PLANQUE 

Mr. DE PLANQUE. Thank you Chairman Runyan and Ranking 

Member McNerney and Members of the Subcommittee. 

You already have our positions on the pieces of legislation. I really just want to take a minute or 2 to comment largely on H.R. 

2349, your bill, Mr. Chairman, the ‘‘Benefits Training Improvement 

Act.’’ 

At the American Legion, we are very excited for going towards 

the area of having real consequences for identifying these errors. 

We talked about it last time when we were here talking about 

problems within regional offices, we talked about that a lot, like 

not seeing consequences for VA. This bill does appear to have consequences for VA. Look, if there is a problem then here is the solution. Set up a program that is going to address that. 

Our experiences from having dealt with and spoken with VA employees throughout the time address one of the things that you 

mentioned earlier, the redundant training that if I am a 20-year 

veteran and I have had the training for the last 20 years on the 

exact same thing, I should be getting training on things that are 

going to matter to me. 

Our main concerns that we have are in the implementation, how 

this is going to work with the existing testing requirements and 

certification requirements that are already there. 

We are willing to come forward to participate as a stakeholder 

to work through these issues. We want to recognize that that is 

there. 

We use the example that when you are in a math class as a child 

and you take a test and if you fail a question on binomial equations, then your teacher knows you need to go back and study binomial equations. If half the class is failing, that then the teacher 

knows the entire class needs a remedial thing on this. 

This seems to be missing in some way, or if it is there it is not 

apparent to any of the stakeholders that something like this is 

working in the VA with going through the claim system when you 

have not just the STAR as my colleague, Mr. Kelley mentioned, but 

also the common errors that are cited by the courts that they are 

finding the common errors that are found at the Board of Veterans’ 

Appeals and at the Appeals Management Center. 

In all of these areas we are seeing the repeated errors, but they 

are not getting back and we want to work and help make this bill 

address that. So not just through testing, but also through aggregating these errors as they come through to set up a program that 

is going to help the VA employees have the tools they need to succeed, because they want to succeed, they want to be right, and they 

want to have confidence in that. 

And I will yield the rest of my time back for questions. Thank 

you very much. 

[The prepared statement of Mr. de Planque appears on p. 36.] 


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Mr. RUNYAN. Thank you very much. 

Mr. Hall, you are now recognized for your opening statement. 

STATEMENT OF JEFFREY C. HALL 

Mr. HALL. Thank you. Chairman Runyan, Ranking Member 

McNerney, and Members of the Subcommittee, on behalf of the 1.2 

million members of DAV, it is an honor to be here today to offer 

our views regarding the pending legislation before the Subcommittee. 

My full statement details DAV’s positions on all the legislation, 

so I am just going to focus on my oral remarks today on a couple 

of bills. 

H.R. 2349, the ‘‘Veterans Benefits Training Improvements Act,’’ 

would require VA to institute annual skills assessments for all employees and mangers, develop individualized training and remediation plans for each, and take disciplinary actions for those who 

cannot pass the test after repeated attempts. 

Mr. Chairman, DAV has long supported the intent of the legislation to require testing, training, and accountability for VBA employees and managers involved with claims progressing. Regular 

assessment of these individuals is elemental in determining whether they possess the requisite skills to properly perform their jobs. 

Likewise, when deficiencies are found it is imperative for additional 

training to be provided and appropriate personnel action taken 

when repeated attempts are met with unsatisfactory results. 

We believe a robust training, testing, and accountability process 

is the proper way for VBA to ensure only qualified individuals are 

involved in the disability claims process. 

DAV agrees with the intent of the legislation; however, before attempting to enact it we feel Congress should examine how similar 

laws already in place are being implemented and enforced. 

Mr. Chairman, as you know Public Law 110–389, the Veterans 

Benefits Act of 2008, requires certification examinations for VBA 

employees and managers who are involved in the disability claims 

process; however, almost 3 years after its enactment there are still 

gaps and problems with this testing. 

It is our understanding that certification examinations are being 

utilized, at least in part for veterans service representatives 

(VSRs), rating veteran service representatives (RVSRs), and decision review officers (DROs), but there are not yet any examinations 

for VBA coaches, supervisors, or managers even though required by 

section 7732A of title 38. 

We would also note that despite the plain language of the statute 

on consultation with interested stakeholders, VBA did not consult 

DAV or other VSOs in the development of these examinations, 

which would have served them well. We hope to hear more from 

VA today about how existing testing program is being implemented. 

While testing and training are essential to reforming the claims 

process system they must be integrated into VBA’s quality assurance control programs to provide effectiveness. Unless there are direct linkages between training, testing, and quality control, VBA 

will miss the opportunity to take full advantage of the myriad of 


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data that exists, includes STAR reviews, coach’s reviews, Board of 

Veterans’ Appeals remands, and other quality assurance programs. 

Mr. Chairman, should the Subcommittee decide to move forward 

with this legislation, we have some recommendations to strengthen 

the language. 

First, the term assess needs to be clarified in the bill. Without 

a definition this could be open to interpretation about whether it 

requires an administered test or whether it could be a subjective 

review by a manager. 

Second, we recommend the Subcommittee consider further defining who the appropriate employees and managers are so it is clear 

to include all coaches, supervisors, and managers, and that they 

are being to the same testing standard as those employees they 

oversee. 

Third, DAV strongly recommends that language regarding test 

development and consultation similar to that already contained in 

section 7732A be included. This would allow for input from DAV 

and other VSOs, as well as employee representatives during the development and implementation of any new testing procedures. 

Lastly, regarding H.R. 2349, DAV strongly recommends the Subcommittee change the term disciplinary action to personnel action, 

a more conducive phrase which accurately conveys the importance 

of the individual accountability without needlessly appearing punitive. 

Mr. Chairman, with respect to H.R. 1826, this legislation would 

codify criminal penalties for persons charging claimants unauthorized fees for representation before the VA prior to a notice of disagreement being filed. DAV feels the intent of the legislation is 

vital to the protection of the often limited financial resources of veterans. Although current law allows attorneys to collect fees for representation after a notice of disagreement has been filed, it does 

not include penalties for anyone unlawfully collecting fees for representation prior to an Notice of Disagreement (NOD) being filed. 

While we have not yet adopted a specific resolution on that matter we do support passage of H.R. 1826. 

In closing, Mr. Chairman, DAV and other VSOs provide expert 

representation throughout all phrases of the process at no cost to 

a claimant. Although attorneys are allowed to collect fees from a 

claimant, DAV remains concerned that there is no limitation on the 

amount of fees that may be charged by an attorney. 

During our recent national convention in 2010, DAV membership 

adopted a resolution calling for legislation to provide a reasonable 

cap on the amount of fees an attorney can charge veterans for representation before the VA, and we urge this Subcommittee to consider such legislation. 

Mr. Chairman, this concludes my statement, I would be happy 

to answer any questions you or the Subcommittee may have. 

[The prepared statement of Mr. Hall appears on p. 38.] 

Mr. RUNYAN. Thank you, Mr. Hall. 

Mr. Garver, you are now recognized. 


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STATEMENT OF AL GARVER 

Mr. GARVER. Chairman Runyan, Ranking Member McNerney, 

Members of the Subcommittee, thank you for the opportunity to 

testify today. 

As the Executive Director of the Enlisted Association of the National Guard of the United States, EANGUS, I am here to speak 

on behalf of the 412,000 enlisted soldiers and airmen currently 

serving in our Nation’s National Guard. In this instance, I am also 

speaking on behalf of their families, as well as the hundreds of 

thousands of retired Guardsmen across America. 

I hope my testimony might have additional impact due to my 28 

years of military service, including 8 years on active duty, 20 years 

in the Guard and Reserve, and 2 tours in Iraq, and that I am still 

serving today as a Senior Master Sergeant in the U.S. Air Force 

Reserves at the Pentagon. 

While EANGUS supports all five pieces of legislation before this 

Subcommittee, I would like to focus my comments specifically on 

H.R. 1025. 

When I first saw the sister bill or the original bill, H.R. 3787 last 

year, I frankly read it in disbelief. In the past 20 years of my service in the Guard and Reserve, I was completely unaware that there 

were retired Guardsmen and Reservists who were not considered 

veterans simply because they served their entire period of service 

without ever having been activated for a qualifying period of Federal active-duty service. 

While the actual numbers of Guardsmen who fall into that category may be relatively small, I think it is safe to state it is likely 

that none of them rightly know today, even know that they are not 

considered veterans. 

When my father, a World War II veteran, died in 1996, I was in 

charge of his funeral arrangements. I was told by the funeral director what his veterans benefits included. I was asked if we would 

like to inter him in a veterans cemetery. 

He served for 4 years on active duty in the U.S. Navy from 1941 

to 1945, and I remember thinking how nice it was that our Nation 

wanted to honor his service in that way. 

Now imagine the shock of the family of a retired Guardsmen who 

served 20 to 40 years, being told by a funeral director and Veterans 

Affairs that they would not qualify for those same honors and that 

their loved one was technically not a veteran. 

It is difficult to fathom how this loophole has gone on unnoticed 

and without remedy for so long. 

EANGUS is truly indebted to Congressman Tim Walz, a retired 

Command Sergeant Major with 24 years of service in the National 

Guard, for championing this issue, and EANGUS is proud to endorse his legislation, H.R. 1025. 

The Guard has evolved over 375 years from a simple volunteer 

militia to an operational reserve force that can be activated at both 

the State and Federal level. This makes for a rather interesting 

legal framework required to authorize and support a variety of missions. Everyone on this Committee clearly understands the difference between title 10 status, when the President is in command, 

and title 32 status, when a specific State governor exercises command over the Guard. 


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This difference is not so simple when one takes into account title 

38 and veteran status. As the Federal component of the Guard’s 

legal structure, title 10 neatly dovetails into title 38 and veterans 

issues, but the same cannot be said of title 32 and title 38. 

H.R. 1025 bridges the gap between title 32 and title 38 by changing the definition of veteran in title 38, section 107A and by linking 

veteran status to title 10 retirement pay for non-regular service. 

During last year’s consideration of H.R. 3787, which was similar 

legislation sponsored by Congressman Walz in the 111th Congress, 

the Congressional Budget Office officially stated those honorary 

veterans would not be eligible for additional benefits from the Department of Veterans Affairs based on this new status. Thus, CBO 

estimates that the bill would have no budgetary impact, enacting 

H.R. 3787 would not affect direct spending or revenues; therefore, 

pay-as-you-go procedures do not apply. 

A similar endorsement was made by the Department of Veterans 

Affairs and H.R. 3787 moved easily through the House, but languished in the Senate at the end of last year. 

H.R. 1025 was carefully drafted to ensure that this broader definition of the term veteran would not be applicable for purposes of 

compensation, for purposes of dependency and indemnity compensation, or for purposes of hospital, nursing home, domiciliary, 

and medical care. If enacted into law, this bill will be at no cost 

to the Nation. 

Let me emphasize that this issue of bestowing veteran status is 

a matter of honor, nothing more, nothing less. 

This year the Senate Companion Bill to H.R. 1025, S. 491, was 

introduced by Senator Mark Pryor in March, and the Senate Committee on Veterans’ Affairs recently held a hearing on the bill on 

June 8th. With movement on both the House and Senate versions 

I am optimistic that both chambers of Congress can advance this 

worthy legislation before the end of the year and hopefully in time 

for Veterans Day on November 11th. 

The Enlisted Association of the National Guard of the United 

States respectfully requests that the Subcommittee favorably report the Honor America’s Guard Reserve Retirees Act of 2011 to 

the full house Committee on Veterans’ Affairs. 

Thank you for the opportunity to testify today, and I look forward to your questions. 

[The prepared statement of Mr. Garver appears on p. 42.] 

Ms. BUERKLE [presiding]. Thank you, Mr. Garver. 

Mr. Sims, you are now recognized. 

STATEMENT OF JIMMY F. SIMS, JR. 

Mr. SIMS. Thank you, Ms. Buerkle, Ranking Member McNerney, 

and Members of the Subcommittee, thank you for allowing me the 

opportunity to testify on behalf of the American Federation of Government Employees and National VA Council. 

H.R. 2349 is legislation that we feel will improve the VBA’s overall claim process by focusing on the skills of supervisors and employees. 

As AFGE has testified on a number of occasions before this Committee, the only effective training is individualized training. As 


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such we support the concept of this legislation, which directs the 

development of such training programs. 

Enactment of this legislation would give employees a meaningful 

training program to address their areas of weakness and deficiencies and allow for real improvement in the quality of their 

work. This needs to be implemented not only at the level of the 

claims processor, but at all levels of supervision over the claims 

process. 

The claims process is a complex one and we have seen supervisors put into positions within this process without the requisite 

skills and experience to oversee it. This is what has led to the 

breakdown in the claims process we see today. 

VBA’s supervisor’s training program specifically states in the initial training you do not need to be a technical expert over the area 

over which you supervise. While this may be true in many areas 

of management, in the claims process this has proven not to be the 

case. 

While AFGE applauds Congress on the concept and direction of 

this legislation, there are a few areas of concern with the legislation, which I would like to voice. 

First, annual assessments. The VA has spent countless millions 

of dollars in the development and implementation of certification 

examinations. AFGE urges the use of the current certification examinations as assessment tools for all claims processors and supervisors. 

While AFGE believes the use of these examinations would be the 

most responsible fiscal action, there are concerns which have been 

raised by the prior contractor who stated their position was only 

to ensure strong test questions and not to develop a test of knowledge. 

AFGE is concerned the current contractor, Cumber, may fall into 

this same trap, thereby resulting in poor certification testing. 

Second, individualized training programs. We urge Congress to 

mandate that all VBA training programs, including individualized 

training programs, be centrally developed by the VBA academy in 

collaboration with the compensation and pension training staff and 

a stakeholder advisory group. VBA has a poor track record of implementing training in a consistent and effective manner. 

In the fall of 2010, I served on a site team, which reviewed implementation of the final phase of training for new employees 

across a sample of stations. As we reported to the Under Secretary, 

we found that none of the stations were implementing the centralized training as directed. Sadly, VBA has taken no corrective actions to this date. 

Third, remediation of skills. This provision of H.R. 2349, as currently drafted, is vague about how VBA will carry out skill remediation. Currently, VBA managers utilize performance improvement 

plans as a means to reassign or remove low performing employees. 

We urge you to spell out the proposed remediation process in more 

detail to ensure consistency and fairness. 

For example, the bill could require remediation be implemented 

only after an employee who participates in an individualized training program does not pass the certification exam. 


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Lastly, disciplinary action for unsatisfactory performance. H.R. 

2349 proposes the use of disciplinary action in cases of unsatisfactory performance of employees. This is contrary to current Federal 

workforce law and policy on proper responses to unsatisfactory performance, therefore, we urge the Subcommittee to amend H.R. 

2349 to substitute appropriate personnel action in place of disciplinary action. 

While there are minor issues which I have identified, the overall 

direction of the bill is one which has been needed and called for for 

many years. Until VBA takes drastic measures to improve the 

training programs, there will be no improvement in the quality of 

the work performed within the claims process. 

Unfortunately, VBA does not have an effective track record when 

it comes to implementing change. For this reason, I urge you to establish an oversight committee comprised of stakeholders, including AFGE and the VSOs who can report directly to this committee 

on the VBA’s implementation efforts. 

I would also urge you to ensure the stakeholders advisory group 

works directly with VBA on review of the annual certification examinations and individualized training programs. 

Thank you for allowing me to testify and I stand by for your 

questions. 

[The prepared statement of Mr. Sims appears on p. 43.] 

Ms. BUERKLE. Thank you, Mr. Sims. 

Mr. Cohen, you are now recognized. 

STATEMENT OF RICHARD PAUL COHEN, ESQ. 

Mr. COHEN. Thank you for inviting the National Organization of 

Veterans’ Advocates to testify here today. 

I will concentrate on only three bills, because those are in areas 

where NOVA has some expertise. 

The first bill, and I will go in numerical order is H.R. 1826, 

which would criminalize soliciting or receiving improper fees. 

That bill is necessary for non-accredited agents and attorneys, 

because there are some bad actors out there. There was even a report in the media recently about a so-called insurance agent in 

California who was soliciting fees for helping veterans apply for 

pension benefits. We have heard reports about that, and presently 

there is no effective way to sanction to those people. 

I would contrast that with accredited attorneys and agents, both 

of whom are restricted under VA regulations 14.632 and 14.633, 

and required to only accept and solicit reasonable and appropriate 

fees. If they do not do that, the punishment is loss of accreditation. 

For attorneys, there is an additional punishment, through their 

State bar. Most States implement the model rules of professional 

conduct requiring appropriate fees, and because most State bars 

have reciprocal enforcement, an attorney who solicits an improper 

fee or receives an improper fee will face loss of VA accreditation 

and will also likely get disbarred and prohibited from practicing 

law in front of any forum. 

So it is not necessary to impose criminal sanctions on accredited 

agents and attorneys for improper fee practices, but is very necessary to impose sanctions on non-accredited people and to put 

those sanctions in another section. Section 5904 is not the approVerDate Nov 24 2008 02:44 Dec 22, 2011 Jkt 068458 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 I:\VA\68458.XXX GPO1 PsN: 68458

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priate place for it. Perhaps Congress should create a new section 

under a new article 60 to provide a mechanism to deal with those 

bad actors who are not otherwise supervised that would be an appropriate idea. 

H.R. 1898 is a very important piece of legislation. At present veterans may oppose a VA finding of incompetency merely because 

they are concerned about losing their right to possess firearms, and 

even though they would concede that they really can’t manage 

their money. It is very clear that inability to manage money does 

not translate to danger to self or others, which is the proper standard to prohibit someone from possessing the right to firearms. 

So this bill, which would say that a veteran is not automatically 

determined to be a mental defective under 18 U.S.C. 922 if they 

are found to be incompetent to manage their money is a worthy 

bill, which would help veterans and the VA. 

H.R. 2349, the ‘‘Veterans Benefits Training Improvement Act,’’ is 

a very good idea. We question, however, whether H.R. 2349 duplicates some provisions that are presently in 7732A. Maybe H.R. 

2349 should be merged into 7732A. 

Our biggest concern is that, at present the work credit system, 

which is monitored by the VA’s ASPEN system, will prevent suitable training and assessment, because it limits the amount of free 

time that employees will have for the training and assessment. The 

VA, right now as we speak, is still very much concerned with pushing paper, not with correctly adjudicating claims and not with providing suitable training. 

That concludes my prepared statements. I am available for any 

questions. 

[The prepared statement of Mr. Cohen appears on p. 46.] 

Ms. BUERKLE. Thank you very much, Mr. Cohen. 

And I will begin questioning by yielding myself 5 minutes. 

Mr. Hall, regarding H.R. 2349, do you have any specific recommendations for what skills should be tested? 

Mr. HALL. You mean specific skills for the individualized testing? 

Ms. BUERKLE. Yes. 

Mr. HALL. Sure. A couple of things come to mind, and that is the 

ability to understand the evidentiary record when they are receiving it, to process and understand the development in the development stage of a claim, understanding that evidence and how it 

plays a role in the rating schedule, how it plays a role in all of that. 

That is a specific skill that should be monitored and tested regularly to make sure that they understand the medical evidence as 

they are reviewing it. 

Another one would be the rating schedule itself. If you have seen 

it it is pretty in-depth in understanding what specific rating criteria must be applied, those are also a specific area to make sure 

an individual understands when they are reviewing the evidence 

and applies the specific regulation or part of the rating schedule 

that they understand how it really works, anatomy, physiology, all 

of those things combined with it. Those are some things that I 

would start with. 

Ms. BUERKLE. Thank you. And which managers and employees 

would you suggest be tested annually? 


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Mr. HALL. Coaches, so you have your team coaches definitely 

have to be in the mix, any individual that oversees a coach or how 

it is aligned within the VA. It is not really quite clear who those 

individuals might be, so when we say coaches, managers, and supervisors they might be one in the same, but they are definitely— 

if you are going to train and test VSRs and you are going to require 

them VSRs and RVSRs, then those individuals that are overseeing 

them have to be included in the same training, testing, and monitored in the same way that we would expect of their employees, 

the same as we do in our own organization. It doesn’t matter what 

level we are at, if I am training and testing someone I have to undergo the same training and testing. 

So coaches, DRO, VSRs, RVSRs, as well as probably assistant 

service center managers, service center managers should be included in that as well. 

Ms. BUERKLE. So should testing be tied into the amount of time 

an employee or manager has worked at VBA, or you are saying everyone should be tested? 

Mr. HALL. No, I think everyone should be tested. I think it 

should be taken into account with something along the lines of— 

and I know it is not maybe specific to the bill H.R. 2349 on the individualized skill assessment—but at the same time if I had 18 

years of doing claims processing national service officer work in the 

field, which I did, and I am required to take the same training as 

somebody that has less than a year, I have to be expected to keep 

it fresh, you know, and more specific maybe pick a particular area 

that had a lot of changes throughout the year, like specific monthly 

compensation or maybe a little more difficult to grasp, so we do tailor it, so I think the VA must tailor it also. If you have a 20-year 

employee and a 3-year employee, yes, it should be tailored specifically, but they should all be required to do so. 

Ms. BUERKLE. Thank you. 

Mr. Kelley, with regards to H.R. 1025, what is your response in 

terms of critics who might say we are creating a slippery slope here 

and will be providing full veteran benefits to this entire group? 

Mr. KELLEY. I believe there is always a risk of when you start 

adding new things, but I think in this particular case it is worth 

the risk. I know the VFW would fight against and that voice be 

heard if benefits would start being associated with that. 

So again, I believe it is worth the risk to give the honor and respect that is due to these veterans. 

Ms. BUERKLE. Thank you, Mr. Kelley. 

I am yielding now to Mr. McNerney 5 minutes. 

Mr. MCNERNEY. Thank you, and I appreciate your questions. 

Mr. de Planque, in regard to H.R. 1025, has there been any 

movement to oppose or to support such a bill in the form of a resolution by your membership? 

Mr. DE PLANQUE. As of right now and the last time that it was 

discussed we have no resolution, and as you know we are grassroots and we work that way. 

I know our convention this summer, next month, is going to be 

in Minnesota and hopefully we will have a chance to talk to the 

sergeant major. I know he has been a tireless and great advocate 

for this bill, and I know it is something that is being looked at and 


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some of the previous concerns that had come up have been addressed. 

And one of the things when you have commissions that meet on 

like a quarterly basis basically, they don’t necessarily get to move 

with the same rapidity, but it is something that is in the mix and 

it is being examined, and hopefully like I said, we are looking forward to hopefully talking with the sergeant major next month 

about it. 

Mr. MCNERNEY. Thank you. 

Mr. Garver, do you see any cons or any reason why we wouldn’t 

want to pass H.R. 1025? 

Mr. GARVER. Well, I think what has to happen, especially anybody that is critical, and I read some of the remarks from the 

American Legion and some from the VFW, and the concerns are 

valid in that, you know, veterans have long been honored for their 

service federally; however, the expanding and changing role of the 

Guard is so significant, and especially in this last 10 years in the 

Global War on Terror. 

Let me give you one example. When 9/11 hit, we stood up 

Guardsmen all over this country in Operation Airport Guardian. 

We did that under title 32 order because of the posse comitatus 

law, Federal troops cannot take up arms in a law enforcement status, so therefore, all of those troops that were on 180 days or more 

should have been—they were protecting our country against terrorists—but they are not recognized as a veteran. 

And so there are a number of instances or examples we could 

give of that, and I think you could make the case with any surveying active duty, with any veteran from the VFW or American 

Legion a long-serving veteran and explain that and they would 

agree that those veterans should be afforded the title of veteran for 

their service. 

It is really an administrative glitch that needs to be remedied. 

I don’t think anyone would question the actual honor ascribed to 

those individuals, especially serving 20, 25, 30, 35, 40 years and retiring simply because they didn’t serve on Federal active duty. 

Most of us would be surprised if you said I didn’t know they 

weren’t a veteran, and I don’t think anyone would begrudge anyone 

for gives that title to them. 

Mr. MCNERNEY. Okay, thank you. 

Mr. Cohen, thank you, I think your testimony was very clear 

today, I appreciate that. 

On H.R. 1826, could you elaborate on the VA system for accrediting attorneys and other agents who represent veterans and other 

beneficiaries who make claims at the VA? 

Mr. COHEN. Yes. Initially whether it is an agent or an attorney, 

they must submit to the VA an application, which shows their 

background. An attorney would have to state where he or she is 

admitted and provide a certificate of good standing. An agent needs 

to additionally pass an exam with a grade of 75 or higher. Both an 

agent and an attorney has to show, within the first year, that they 

have completed 3 hours of VA law specific training, CLE (continuing legal education) training. Then there are annual reports 

that have to be submitted to show that they are still in good standing and that the training has continued. 


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What this does is allows the VA to monitor the actions of the attorneys and the agents, and in fact as I mentioned before, the VA 

does have the responsibility and the power to sanction anyone who 

acts improperly. 

Mr. MCNERNEY. Do you think that the possible imposition of 

criminal penalties will be an effective tool in this legislation or do 

you think it is a deterrent? 

Mr. COHEN. Well, I don’t know that an accredited agent or attorney would be further deterred by criminal penalties. The likely loss 

of the opportunity to practice VA law and for an attorney to practice any law is a very powerful deterrent. For that reason, I don’t 

see that that the legislation is necessary. In fact, what we are seeing in the media, and the complaints that I hear anecdotally are 

not concerning attorneys and agents. They concern insurance 

agents or financial consultants who are consulting with veterans 

regarding eligibility for pensions and aid and attendance. 

Mr. MCNERNEY. Thank you. I have run out of time so I am going 

to yield back. 

Ms. BUERKLE. Thank you very much. 

I know yield to the gentleman, Mr. Walz. 

Mr. WALZ. Thank you, Madam Chairwoman. 

And again, I want to thank each of you for your thoughtfulness 

you put into that. I am always so proud of this Committee of serving on it, I feel like it is the way democracy should work, that suggestions are proposed by citizens, we work back and forth, and I 

would like to thank each of you. 

Specifically on H.R. 1025, we worked on this quite a while. Mr. 

Garver, I want to thank you and EANGUS. In full disclosure I am 

certainly a life member of that organization and glad that you are 

there, but the thoughtfulness that all of you put into this of getting 

this right I am very appreciative of that, and I also think it is really critical that we do get that right, that this definition is narrowed 

to the point where we don’t infringe upon some of those things, because it is not where any of us wanted to go with it. And I think 

Mr. Garver is right, I think the vast majority of the public doesn’t 

understand this. 

My concern was, it is that sense of honor that goes with people 

of getting their record exactly right and having to explain technically I am not truly a veteran. I do think it misses the point and 

could be a dangerous precedence that we don’t honor those who 

serve in the capacity, whether it be support. And I look to it of all 

the years of training. There is an awful lot of Guard and Reserve 

folks down range performing professionally as well as any force 

ever has and they were trained by a lot of these folks that fall into 

this category, and so I very much appreciate that. We will watch 

very closely as it coming forward. 

I also, Mr. Cohen, I appreciate your thoughtfulness on this, especially on our colleague Mr. Rehberg’s second amendment protection. You made a great point of not linking money management 

skills to gun ownership, because I am thinking not a Member of 

Congress will ever hunt again if they try and do that. I am very 

appreciative of that, I think it is thoughtful making sure we get 

this right. 


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I had one question, Mr. Kelley, on H.R. 923, and I think some 

of these, and this is where I always struggle with when you hear 

my colleague, Mr. Hastings, describe the situation with his constituent. VFW I thought brought up a valid point on this of what 

is the VA capable of doing when we change some of these. 

So Ray, I don’t know if you have something on that you could— 

if there is anything or if I could get it from you later about some 

of the specifics on this trying to understand what the implications 

of the Pension Protection Act will be. 

Mr. KELLEY. Thank you, Mr. Walz. Currently there are twelve 

provisions. And it appears to me that most of it is a piece of paper 

that you can take to the VA to show why that money should not 

be taken away from you, or factored in. Going forward with this it 

appears that it will be a little bit tougher. Determining pain and 

suffering payments will be much tougher. It is not a piece of paper 

that you can do. The Secretary will have to do this on a case-bycase basis, and it is going to be a bigger muscle movement that 

what they have to do at this point. That is one particular issue and 

there are a couple of others that I can get back with you on. 

Mr. WALZ. Okay. Are there some fixes to this, you think, to make 

that easier? Or do you think it is the nature of this that there is 

going to be a fundamental shift if this happens? With all good intentions, but in the long run causing us more issues for a broader 

number of veterans? I am just trying to figure out as this moves 

forward where that goes. 

Mr. KELLEY. I will get back with you on that as well. 

Mr. WALZ. Okay. 

Mr. KELLEY. Let me put a little thought into it. 

[Mr. Kelley subsequently provided the following information:] 

After speaking with VA, they do not believe that this bill will affect their 

ability to accurately assess existing and the proposed value assessments on 

loss of property and medical and insurance reimbursements. Therefore, the 

VFW withdrawals its concern that this legislation will impose an undue 

burden on VA. 

Mr. WALZ. No, very good. And again, I appreciate the thoughtfulness of this entire group. It certainly helps make our job easier and 

I yield back. 

Ms. BUERKLE. Thank you, Mr. Walz. Unless either one of my colleagues have any further questions? Do you, Mr. Ranking Member? 

Mr. MCNERNEY. Well yes, I do actually, if you allow that? 

Ms. BUERKLE. Absolutely. 

Mr. MCNERNEY. Thank you. Mr. de Planque, on your testimony 

regarding H.R. 1826 you mentioned anecdotal evidence that veterans are being taken advantage of for profit. Do you have some 

specific examples so we can get some idea of what we are talking 

about here? 

Mr. DE PLANQUE. One of the things that we have been noticing 

happening in the arena, you know, we have service officers who are 

out there, you know, trying to help veterans, is that particularly in 

the area of elder care, and it was touched on by a number of people, the aid and attendants benefits and stuff like that. There are 

some predatory kind of bad actors who are swooping in and trying 

to take advantage of, you know, accessing a veteran’s benefits and 

getting money back from them on it when these people are in a 


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particularly weak position to begin with. And that, as you know, 

in America in general, even outside the veterans community, elder 

care and how people transition into that area, and whether it is 

nursing homes, or pension, or various things, that there is a tremendous opportunity for predators in that area. And we have noticed over the last several years more incursions into the veterans 

community in that area because people are realizing that there is 

a substantial portion of the veterans community that is reaching 

that area. And it is, in terms of specific cases we can try and find 

some and see if we can get back to on some specific instances. 

But you know, I mention it anecdotally in, you know, we have 

annual service officer schools where we will bring everyone together and it is something that they have definitely been voicing 

back to our national staff, of this is what is going on, you know, 

is there any way that, you know, we can try and move in? And I 

know responsible attorneys who are also, you know, involved in the 

process. They are concerned about that as well because you do not 

want to have the bad actors who are in there. And I know most 

of the VSOs, you know, we all do not charge veterans for any of 

our services. We are not there to take advantage of them. We are 

there to get all the benefit back to the veterans. And so that, when 

I mentioned the anecdotal evidence that is what I am talking 

about. Is specifically in that area, we have been seeing it more in 

the elder care and retirement home, and veterans going into old 

veterans home areas, people who are preying on that group. 

Mr. MCNERNEY. I have one more question, if the Chairman will 

allow it? To Mr. Cohen, I see you are anxious to say something 

anyway. But I wanted to change the subject to H.R. 2349. You proposed that the Subcommittee remain focused on reforming the 

work credit system rather than adopting increasing training. 

Would this legislation that is proposed in your mind help? Or, 

would it help reduce the backlog, or not? 

Mr. COHEN. Well I do not—— 

Mr. MCNERNEY. I know the backlog is an important issue to you. 

Mr. COHEN. Yes, it is. And I think the biggest impediment to reducing the backlog is the present work credit system. Yet, training 

and assessment is certainly very important. But as a practical matter I do not believe that the VA is capable, at this time, of implementing further testing and assessment with the existing burden 

of the work credit system and the monitoring that it requires. The 

work credit system imposes tremendous burdens up online workers 

and supervisors. I just do not think that this legislation is actually 

going to accomplish anything. It is a wonderful idea, and it is necessary. Had the work credit system already been fixed, this training and accession program would be a perfect thing to go to. But 

without fixing the work credit system first I do not know how this 

would actually be implemented. 

Mr. MCNERNEY. Okay, thank you. I yield back. 

Mr. RUNYAN [presiding]. Thank you, Mr. McNerney. I apologize 

to everybody for having to step out. We had to deal with some of 

our current heroes actually being taken advantage of, and I had to 

do an amendment on the floor. I do not know if it has been talked 

about a little bit but Mr. Hall, you kind of touched on some of the 

things. I think the one thing that I think we disagree on is the 


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word disciplinary action. I like being forceful with that. I know we 

have had this discussion in previous hearings but to that fact I 

think we are both on the same page. 

But I think what we are missing is the connection to the individual because we all know as individuals we have deficiencies. 

And I realize the data from the regional offices suggest one thing. 

But to be able to go down to the individual level and take care of 

those deficiencies because they do have to operate as a team. And 

like I think we agreed on, someone there 20 years should not be 

given the same training as a 2-year person. And it is being able 

to go in and give that person what they need to do their job. Do 

we have an understanding on that? 

Mr. HALL. We do. 

Mr. RUNYAN. I kind of feel like that is almost like the sticking 

point of the whole situation. But that is the direction we want to 

go. Because I really think it comes down to data collection. Where 

are the deficiencies, and how are we going to address them? Because obviously the VA says all the time training is the solution. 

No, it is proper training is the solution. I have heard that my 

whole life. My son was at a football practice the other day and it 

came out again. The football coach says, ‘‘perfect practice makes 

perfect.’’ And if you are not perfecting your procedures and how you 

are adjudicating these claims, it is not going to happen. I just want 

you to know that is the intent of the bill and that we look forward 

to getting this worked out because I know you had a couple other 

issues with it. 

Mr. HALL. Well primarily, Mr. Chairman, we are supportive of 

the intent. I want to make sure that is clear and I did not lose that 

in translation, that we are supportive of the intent of the bill because as I have appeared before this Subcommittee and others, 

other of my colleagues, training, testing, and accountability. And 

we have talked about that time and time again. So I am, you know, 

DAV is very happy to see this particular type of legislation being 

introduced. Specific language in it, those are some things that we 

would be happy to work with you, with the Subcommittee to, you 

know, to work out specific language of it if it makes it more conducive, you know, to the process. 

We can agree or not agree on specific verbiage, like disciplinary 

action. But in the scope of the entire purpose and intent of the bill, 

we are with you on that particular aspect of it. And as, again, an 

organization that prides itself on practice makes perfect, training, 

32 months of ongoing training beyond your initial 16 months, 32 

months of ongoing training for area supervisors, supervisors, and 

all of the national service officers below, we are required to complete that 32 months of ongoing training and then when we get 

done we start again with new material because laws have changed, 

things, regulations have changed. So we are never out of training. 

So the first time I have been out of training is coming, you know, 

and being part of the legislative staff is the first time. But I am 

training in a different way at this point. So we are supportive of 

the intent of the bill. We would just like to make sure that if you 

could consider those recommendations for specific change in language. 


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Mr. RUNYAN. I do realize that a lot of you and I know the Ranking Member did also, used the word duplication of the previous law 

from 2008. I think there is some carryover. But I think this is actually taking it to a level to actually get it to work, make it apply, 

make it, we talk about efficiencies, I think more efficient and more 

tailored to the cause we have. Because obviously we are dealing 

with this massive backlog that we have to get out of our way. And 

that is ultimately the goal of the whole situation, to take care of 

those who take care of us. And I appreciate that. 

I think you guys have probably touched on most of my questions. 

I will have to go back and read the rest of the transcript. With 

that, unless anybody else has any other questions? I know you 

were on your second round. Thank you all very much and we will 

have the next panel up. 

Welcome. This panel consists of Mr. Thomas Murphy of the VBA, 

who is accompanied by Mr. Richard Hipolit from the Office of General Counsel, Department of Veterans Affairs. Mr. Murphy, you are 

now recognized for 5 minutes for your testimony. 

STATEMENT OF THOMAS MURPHY, DIRECTOR, COMPENSATION SERVICE, VETERANS BENEFITS ADMINISTRATION, U.S. 

DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY 

RICHARD J. HIPOLIT, ASSISTANT GENERAL COUNSEL, OFFICE OF GENERAL COUNSEL, U.S. DEPARTMENT OF VETERANS AFFAIRS 

STATEMENT OF THOMAS MURPHY 

Mr. MURPHY. Thank you, Mr. Chairman. Chairman Runyan, 

Ranking Member McNerney, and Members of the Subcommittee, 

thank you for providing the opportunity to present the views of the 

Department of Veterans Affairs on pending benefits legislation. 

Joining me today is Richard Hipolit, Assistant General Counsel. 

This is my first time speaking before the Committee and I would 

like to tell you that I consider it an honor and a privilege to be here 

before you today. 

I would like to start out by apologizing to the Committee for the 

lateness of our testimony. I realize your time is valuable and that 

providing our testimony in advance gives you the opportunity to 

prepare for these hearings. I will make every effort to make sure 

that this is not repeated in the future. 

H.R. 923, the ‘‘Veterans Pension Protection Act of 2011,’’ would 

expand the existing exemption in 38 U.S.C. 1503(a)(5) by excluding 

two types of payments from determinations of annual income for 

the purpose of determining eligibility for improved pension; first 

would be reimbursements for expenses related to accident, theft 

loss, or casualty loss, and reimbursements for medical expenses resulting from such cause; and second regarding pain and suffering 

related to such causes. VA opposes excluding payments received for 

pain and suffering from accountable income because such payments 

do not constitute a reimbursement for expenses related to daily living. This provision with the bill would be inconsistent with a needs 

based program. 

VA does not oppose the remaining provisions of this bill, which 

would exempt payments for reimbursement for accident, theft loss, 


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casualty loss, and resulting medical expenses subject to Congress 

identifying offsets for any additional costs. VA cannot determine 

the potential benefit cost because insufficient data are available regarding the frequency or amounts of such payments to the population of pension beneficiaries. 

H.R. 1025 would add to chapter 1, title 38 U.S.C. a provision to 

honor veterans based on retirement status but who do not have 

qualifying service for veteran status under 38 U.S.C. 102(2). The 

bill states that such persons would be honored as veterans but 

would not be entitled to any other benefit by reason of this amendment. 

Veteran status is conditioned on the performance of active military, naval, or air service. Under current law, a National Guard or 

Reserve member is considered to have had such service only if he 

or she, one, served on active duty; two, was disabled or died from 

a disease or injury incurred or aggravated in the line of duty during active duty for training; three, was disabled or died from an injury incurred or aggravated in the line of duty, or from certain 

medical conditions suffered during inactive duty training. VA does 

not support this bill because it represents a departure from the active service as the foundation for veteran status. VA estimates that 

there would be no cost benefit or administrative costs associated 

with this bill if enacted. 

H.R. 1826 would amend 38 U.S.C. 5905 to reinstate in a modified 

form an earlier provision that had provided criminal penalties for 

charging improper fees in connection with representation in a claim 

for benefits before VA. Because this bill involves criminal benefits, 

courts are likely to interpret the phrase, ‘‘advice on how to file a 

claim for benefits,’’ as referring to advice on how to complete an application for VA benefits. It would be unlikely to deter the solicitation or receipt of any fee or compensation for the provision of advice on how to transfer or shield financial assets in order to become 

eligible for certain VA benefits. The proposed penalty provision 

could seemingly be easily circumvented by charging for services 

other than those specified in the bill while also providing services 

that the bill is intended to cover. 

VA supports the protection of claimants from unscrupulous fee 

practices, but we doubt that this bill would effectively address the 

entire scope of the problem. We defer to the Department of Justice 

on whether the new provision imposing criminal penalties would be 

enforceable as a practical matter. 

H.R. 1898, the ‘‘Veterans Second Amendment Protection Act,’’ 

would provide that a person who is mentally incapacitated, deemed 

mentally incompetent, or unconscious for an extended period will 

not be considered adjudicated as a mental defective for the purposes of the Brady Handgun Violence Prevention Act. We understand and appreciate the objective of the legislation, to protect the 

firearm rights of veterans determined by VA to be unable to manage their own financial affairs. We believe adequate protections can 

be provided on these veterans under current statutory authority. 

Under the NICS Improvement Act of 2007, individuals subjected to 

an incompetency determination by VA can have their firearm 

rights restored in one of two ways. By reversing the determination 

of incompetency, or by proving that they are not a threat to public 


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safety. Although VA has admittedly been slow in implementing 

this relief program, we now have a procedure in place and are fully 

committed going forward to implement this program in a timely 

and effective manner. 

But exempting certain VA mental health determinations the legislation would create a different standard for veterans and their 

survivors than is applicable to the rest of the population. VA estimates that there would be no additional benefits or administrative 

costs associated with this bill if enacted. 

This concludes my statement, Mr. Chairman. I would be happy 

to entertain any questions from you or other Members of the Subcommittee. 

[The prepared statement of Mr. Murphy appears on p. 48.] 

Mr. RUNYAN. Thank you very much, Mr. Murphy. I know on the 

last panel they really discussed the involvement of the stakeholders 

and being involved in the examination process. Because obviously 

there is a deficiency there. Was it an oversight? Or you really just 

shut the door on them, and their ability to get involved in that? 

Mr. MURPHY. What do you mean by the examination process? 

Mr. RUNYAN. The testing process. They feel like they have been 

left out of the whole deal. 

Mr. MURPHY. Are we talking about H.R. 2349? 

Mr. RUNYAN. Yes. 

Mr. MURPHY. Okay. We are not prepared to discuss that—— 

Mr. RUNYAN. You are not going to discuss it? 

Mr. MURPHY. What I can tell you is that we are prepared to provide any technical assistance you may need between now and the 

write up coming up here shortly. And my staff is available to the 

Committee staff for any assistance that you may need. 

Mr. RUNYAN. That was about half of my questions for this panel. 

But you talked a little bit about providing protections for our veterans from individuals taking advantage of them, that this may not 

go far enough and there may be backdoor ways. Do you see any 

way to be able to protect them and help with legislation so they 

are not being taken advantage of? 

Mr. MURPHY. I think, do you want to make a comment? 

Mr. HIPOLIT. Yes, I would like to address that if I could. I think 

the difficulty we have is that VA can only regulate people who 

practice before VA. We have good authority to do that now. We 

have a good program for accrediting representatives who represent 

people before VA. We have disciplinary proceedings that we can 

take for people and suspend or remove their accreditation to prevent them from practicing before VA. We can review attorneys’ fee 

agreements for attorneys that practice before VA and we can actually tell the attorneys to refund fees that we consider to be unreasonable. So we have good authority for people who are actually 

practicing before VA. 

For people who are may be just advising veterans and who do 

not actually come before VA to represent the veterans, we do not 

have much authority in that area now and it would be difficult, I 

think, for us to enforce in that area. So I think that this bill that 

is before the Committee now is intended to widen the scope a little 

bit and put some authority out there to take action against people 

who we cannot regulate under our authority. 


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The difficulty is that the proposed legislation is a criminal statute so it would be subject to enforcement by the Department of 

Justice rather than VA. We are not really sure how effective it 

would be from their standpoint. Under previous law, there was a 

provision that provided criminal penalties for charging excessive 

fees and it was not enforced very often. I think the U.S. Attorneys 

Offices were reluctant to bring those cases for one reason or another because of competing resources. As there were not very many 

prosecutions brought under the prior law, I am not sure how effective this would be. I think the Justice Department might have a 

better idea about that. But there are some concerns about whether 

it would be effective. 

Mr. RUNYAN. In your experience, have any complaints come to 

you? And do you redirect them to the Department of Justice? 

Mr. HIPOLIT. We have heard some complaints about various practices of people providing advice and charging for it who do not actually practice before VA and are outside our control. What we have 

done in those cases, we have referred some to State officials to see 

if there was any State law that might have been violated. We have 

also alerted bar associations to see if there is unauthorized practice 

of law going on. But as I have said, we do not have much authority 

in that area. So we have made some referrals. I am not sure what 

has come of that, if anybody has tried to bring enforcement action 

at the State level. 

Mr. RUNYAN. That is all I have for now. Mr. McNerney. 

Mr. MCNERNEY. Thank you, Mr. Runyan. Concerning H.R. 923, 

your hang up seems to be with the pain and suffering clause. Are 

you, as an institution, concerned that pain and suffering awards 

might be too big? Or not too big, but big enough so that the veteran 

does not need assistance? Or I do not see why that would be the 

one provision that you are against. 

Mr. MURPHY. Yes, sir. This is a pension program primarily based 

on needs and income of the individual. We do not know what the 

size or amount or the impact is going to be on the financial livelihood of that individual based on the compensation they received in 

the pain and suffering. Because it is a needs-based program, the 

dollars received there do not impact the veteran’s life as we are 

talking about from accident, death, loss, and the other provision of 

the bill. That is primarily designed to make that individual whole 

again based on the losses they suffered. 

Mr. MCNERNEY. Any idea how many veterans would fall into 

that category? 

Mr. MURPHY. I do not know that, sir. 

Mr. MCNERNEY. Can you get that to us? Can you get that kind 

of a number to us? 

Mr. MURPHY. Yes, we will take that one for the record. 

[The VA subsequently provided the following information:] 

NOTE: The HVAC DAMA Minority Staff Director supplemented this deliverable after the hearing as follows: For the second deliverable, as we discussed last week, it would likely be more feasible for VA to indicate whether excluding pain and suffering from the calculation of income for determining pension eligibility would impose an administrative burden on the 

VA pension program since you indicated that the figure requested likely 

would be difficult to deliver. 


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Response: There is currently no tracking mechanism in place to determine the number of Veterans denied pension solely on excessive income 

that would have been reduced if allowed credit for monies obtained in the 

course of ‘‘pain and suffering.’’ There would be an increased administrative 

burden to determine pension eligibility based on reducing income for pain 

and suffering proceeds. This would require additional development activities and determinations as to which part of the proceeds is from pain and 

suffering and which part is from other categories. This development would 

impact the number of claims completed nationwide. 

Mr. MCNERNEY. Okay. Regarding H.R. 1025, the Guard and Reserve bill, is your basic argument the slippery slope? You are concerned that opening this up will create an avalanche of people that 

would want to be veterans? Is that the basic, is that the crux of 

your disagreement with that bill? 

Mr. MURPHY. We would be certainly opening a door that has not 

been opened previously. Yes, that is correct. 

Mr. MCNERNEY. Okay. Well I guess that is, that clarifies that. 

On H.R. 1826—well, actually I think I will skip over to H.R. 1898. 

What I heard you say was that you, what Mr. Hipolit—how do you 

pronounce that? 

Mr. HIPOLIT. Hipolit. 

Mr. MCNERNEY. Hipolit, I am sorry, say that it was not really 

needed. That piece of legislation was not needed because internal 

regulations are going to take care of that problem. Is that what you 

are saying? 

Mr. HIPOLIT. Let me clarify. For people who are actually practicing before VA, say attorneys or service organization people or 

claims agents who actually come in and practice before VA, who 

submit things to us, who come in to hearings and so forth, I think 

we have very good regulations in place right now to take care of 

those people because we have the accreditation program, we 

have—— 

Mr. MCNERNEY. Well I am talking about the Second Amendment 

Protection Act. 

Mr. MURPHY. Yeah—— 

Mr. HIPOLIT. Oh, oh, I am sorry. 

Mr. MURPHY. I will take that one. 

Mr. HIPOLIT. Okay. 

Mr. MURPHY. There are two ways right now that a veteran that 

has a fiduciary appointed can seek relief under this act. We have 

regulations in place, a specific fast letter that went out last November. There have been 142 requests for relief. At this point we are 

averaging approximately 130 days to reach a decision on that, and 

we are going back in and trying to cut that timeline in half again. 

But the bottom line is, a veteran that is declared incompetent here 

has a relief method to address it with VA and has his rights restored, and that has happened in many instances. 

Mr. MCNERNEY. Well on the earlier panel we heard one of the 

testifiers said that veterans would be reluctant to be classified as 

mentally incompetent for fiduciary reasons if it meant that their 

Second Amendment rights would be eliminated. So, I mean, that 

is a legitimate concern. 

Mr. HIPOLIT. Yes, but there is a relief mechanism because as an 

initial mechanism you could have your competency restored. Then 

there is a petition for relief. If you can come in and demonstrate 


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that you would not be a threat to public safety to have a handgun, 

then we can provide relief and the person would be taken off the 

list. 

Mr. MCNERNEY. And you are confident that that would be expeditious? If, I mean, the veterans, the VA, for all its virtues, is bureaucratic. And you do hear more often than not that things take 

longer than they should. Someone might have a 6-month waiting 

period, or a 1-year waiting period to have relief on that sort of adjudication? Is that going to be any different at this point forward? 

Mr. HIPOLIT. Yes, I think initially we were kind of slow in getting a procedure in place to hear the petitions for relief. But we do 

have something in place now, since last fall, and I think there have 

been a large number of adjudications under that. I think it has 

been a timely system since we have actually gotten our procedures 

in place. 

Mr. MCNERNEY. So by timely you mean 2 months? A year? 

Mr. MURPHY. At this point with all of the ones that we are doing, 

which is 142 cases, we are averaging 130 days to complete those. 

That starts from when the letter was published from last November to now. The back half of that, the most recent cases, are running significantly shorter. We have an internal goal that we are 

driving to of 60 days. 

Mr. MCNERNEY. Okay, thank you. I yield back. 

Mr. RUNYAN. Mr. Walz. 

Mr. WALZ. Thank you, Mr. Chairman. And thank you, Mr. Murphy, for your service, for being here, and for being a partner in getting it right for our veterans. And I want to just say I very much, 

the counsel and the input of VA is a very strong, it very strong 

weighs on us as we craft this legislation. 

I want to go to H.R. 1025. We spent a lot of time, on this, 

thought about it. I would expect you to be in the position where 

you are at, and I am appreciative of that. Your job is to guard as 

it is written now that law and how we view that. And I understand. Any time you change a definition, especially one, veteran, 

that is pretty fundamental to everything else that comes afterwards. So I am very appreciative of where you are at. I am very 

appreciative of the cautiousness. I think Mr. McNerney was getting 

at it. I think he is right that you, and rightfully so. I do not make 

light of a slippery slope argument because I think it is legitimate 

in many cases. I just want to ask in this, this thing was crafted 

very narrowly. And being very conscious of that very point. 

But I think as Mr. Garver said and many of us have recognized 

is we and our job on this side of the table is to be conscious of the 

societal changes and things that happened. And that Guardsman 

no longer looks the way they did 30 years ago. I think I could have 

made a case then even that 20 years of Guard or Reserve service 

would warrant that title of veteran. Not the, we differentiate already on what veterans benefits you get. My retired pay will not 

be the same as an active-duty command sergeant major, and rightfully so. It will be prorated to the time that I did. But we would 

each serve on that. 

Is there any way that the VA, and I know we have run this by 

you, we have run it by your counsel or whatever, is this just one 

of those issues that is that bright line that you cannot cross and 


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say we support because of what it opens up? And I do not know 

if that is a fair question or not. I am just trying to get, because 

what I am trying to get across to you is we want this to work exactly right for you, and the concerns you are bringing up are all 

exactly valid. And I am appreciative of them. But I think our concerns and the changing nature of this warrants that this is a good 

piece of legislation. I will just get your insights. And I know when 

you are sitting at that table it is a little harder than just telling 

us. 

Mr. MURPHY. Yes. Thank you for appreciating that. What I can 

do with this is take this back and discuss it with the Secretary’s 

staff and possibly look for a way where we may be able to modify 

this bill and come back with a support of it. 

Mr. WALZ. Well I would certainly appreciate that. And as I said, 

I think we are working together, majority, minority staff, and Senate, of trying to get there. I just want to make it very clear that 

I am very sensitive to where you are at on this. Very sensitive to 

the need to get this right. But I am also just trying to convey that 

there is a very strong sense amongst especially the Reserve component, you heard it here. This is a very emotional issue. There are 

some of these that rise to the top. This is just one as I think, you 

know, Chief Garver said, it is just about honor and they feel very 

strongly about it. I want to get this right and your input is absolutely critical. So I think that, Mr. Murphy, that is fair if you take 

it and try and see what you can do with the—— 

Mr. MURPHY. You stated a moment ago about the passion that 

is there behind the Guard and the Reserve members. That same 

passion exists in the VA for this. This was a very hotly contested 

and debated in discussion before we came out with an official position here. There is a whole lot of passion. 

Mr. WALZ. I appreciate that. 

Mr. MURPHY. There is passion about the service that the Guard 

and Reserve members have provided to this Nation, including myself. This bill directly affects me. The person they are describing 

right here is me. 

Mr. WALZ. Yeah. 

Mr. MURPHY. So I get this. And I understand. 

Mr. WALZ. Well I appreciate that. I just, convey that on if 

you—— 

Mr. MURPHY. I will work with the VA staff and see if there is 

a way that we can get to yes with this and return that as a question for the record. 

[The VA subsequently provided the following information:] 

After further consideration, VA has not changed its position regarding 

H.R. 1025, nor found a workable alternative that might ameliorate VA concerns. Please refer to VA’s testimony to further analyze our position, as it 

remains unchanged. 

Mr. WALZ. I appreciate that. Again, thank you both for your service. I yield back. 

Mr. RUNYAN. Thank you, Mr. Walz. And for your passion on this, 

because you are in that wheel house also. And going back to H.R. 

1898 and with the Second Amendment rights. Now how long did 

it take you to create the appeals process? 


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Mr. HIPOLIT. The NICS Improvement Act was enacted in 2008, 

I believe. And to be honest with you, we just got the procedure in 

place last year. So it was a very slow start, I will admit that. I 

think now we are up to speed. We are doing it in a timely manner. 

Mr. RUNYAN. Okay. And that being do you have a percentage of 

reinstatement as they go through this process? I mean, how many 

people are actually being reinstated? 

Mr. MURPHY. I do. I have specific numbers. 

Mr. RUNYAN. Not that I agree with it being taken away in the 

first place, but. 

Mr. MURPHY. As of May 2011, VA received a total of 142 requests 

for relief. Of those, VA restored competency to 6 individuals, granted the relief for 1 individual, and denied 91 requests for relief. 

There is a specific set of detailed criteria, outlined in the letter, 

that these are the items that must be met in order to provide relief. 

What we have done is written this in a way that it is not taken 

in a personal light. It is taken as, ‘‘is the individual a risk to the 

safety, to society or not?’’ ‘‘Does the individual have a history of violence?’’ It is outlined by bullet in detail when we would grant relief 

and when we would not. And those are the numbers that we have 

as of today, or as of May, excuse me. 

Mr. RUNYAN. And I am very hesitant in taking that right away 

from anybody. I know that the Social Security Administration has 

a similar kind of criteria, except it goes to a judicial forum not a 

bureaucratic forum, which I think is a more sound way to do it. 

Not that I would totally agree with that either. But here you are 

having bureaucrats taking away people’s constitutional rights and 

it is very, very frustrating to me. I am almost at a loss for words 

I think, kind of like Mr. Walz is with his bill. And it being a Second 

Amendment right it is just mind boggling that a bureaucrat can 

take that away, let alone a judge having that ability. I am just at 

a loss for words. 

Do either of the other two gentlemen have any further questions? 

Mr. McNerney. 

Mr. MCNERNEY. Thank you, Mr. Chairman. I would ask if Mr. 

Murphy, you would you be able to provide the fast letter to the 

Committee? 

Mr. MURPHY. Yes, sir. 

[The VA subsequently provided the Fast Letter 10–51, dated November 22, 2011, from Thomas J. Murphy, Director, Compensation 

and Pension Service, Veterans Benefits Administration, U.S. Department of Veterans Affairs, to Director (00/21), All VA Regional 

Office Centers, which appears on p. 56.] 

Mr. MCNERNEY. Thank you. Regarding H.R. 1826, under the previous statute, the prior enactment of P.L. 109–461. How many, 

what was the prevalence of folks being fined and found guilty of 

criminal, or committing acts of soliciting, contracting, charging, or 

so on? What was the prevalence of violation? 

Mr. HIPOLIT. Really, I cannot recall a single prosecution in the 

time I was involved in overseeing attorney fee matters. I just do 

not think it was being enforced as a criminal matter. We did pull 

the accreditation of some attorneys to practice before VA based on 

misconduct, but as far as criminal prosecutions, I just do not think 

they were being done in the time that I have been involved in it. 


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Mr. MCNERNEY. And that, at that point that would have been 

done through the DOJ as it would be with the new provisions that 

we are considering, is that correct? 

Mr. HIPOLIT. That is correct. Because it is a criminal statute, the 

Department of Justice would have to enforce it, not VA. 

Mr. MCNERNEY. So we are looking at the same situation potentially, where violators really are not prosecuted? 

Mr. HIPOLIT. I think it would be up to DOJ to do it, and based 

on their priorities, or how strong they thought a case might be, 

they would use their discretion whether or not to prosecute. 

Mr. MCNERNEY. Okay. Thank you. I yield back. 

Mr. RUNYAN. Mr. Walz, anything further? Well Mr. Murphy and 

Mr. Hipolit, thank you for your testimony. And you both are excused. Mr. McNerney do you have anything else? Closing statement 

or anything? Well, I thank all of our witnesses today for your testimony. And we always value your input and look forward to working with you to perfect these bills. 

I will remind everyone that the Subcommittee on Disability Assistance and Memorial Affairs will hold a markup at 2:30 p.m. next 

Thursday, July 14th in Room 334. If there is no further business, 

we are adjourned. 

[Whereupon, at 4:25 p.m., the Subcommittee was adjourned.] 


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A P P E N D I X 

Prepared Statement of Hon. Jon Runyan, Chairman, 

Subcommittee on Disability Assistance and Memorial Affairs 

Good afternoon. The legislative hearing on H.R. 1025, H.R. 1826, H.R. 1898, H.R. 

923, and H.R. 2349 will come to order. 

I want to thank you all for attending today’s hearing. 

As the first order of business, I ask unanimous consent that all Members present 

be allowed to sit at the dais. 

Having heard none opposed, so ordered. 

I realize that there was a short turnaround time for the witness invitations to this 

hearing due to the recent holiday. 

However, I am disappointed that the VA is again considerably late in submitting 

their testimony for this hearing. 

It is my understanding that the written testimony submitted does not address 

H.R. 2349. 

I am hopeful that the VA will be able to provide us with written testimony on 

that bill by close of business Monday, July 11th, so that we might be able to weigh 

the VA’s input on that bill before next week’s mark-up meeting of this Subcommittee. 

Before I recognize Ranking Member McNerney and other Members of the Committee, I wanted to briefly touch on H.R. 2349—which I have introduced. 

H.R. 2349, the Veterans’ Benefits Training Improvement Act of 2011, aims to improve benefit claims processing through focusing on individualized training and 

skills assessment. 

The bill creates an individualized training program for all employees and managers who process or supervise the processing of disability claims. 

Annually, these employees would take a test that assesses their skills relating to 

claims processing. 

Following this test, VA will create an individualized training program for each 

employee who took the test. This individualized program will focus on the areas of 

the test where the employee showed the greatest deficiency or need for improvement. 

This focus on individual deficiencies will avoid the redundant blanket training 

that many employees already endure. 

There is no reason why an employee of 20 years should be taking the same training as an employee who has been in the VA for only 2 years. 

I hope that by establishing this program we are able to encourage employees and 

managers alike to slow down and do the claim right the first time. Improving the 

number of claims sent out the door is not enough if the veteran is continually seeing 

mistakes being made on his claim. Quality must be improved, and the only way to 

improve quality is make sure that VA employees are properly trained. 

While I understand that some believe this bill is very similar to the certification 

testing that Congress required a few years ago, it is different and needed because 

this bill provides the individualized metrics and required follow through with training and retesting necessary to be truly effective. 

I ask all of today’s witnesses to summarize your written statement within the 5 

minutes allotted, and without objection, each written testimony will be made part 

of the hearing record. 

Before we begin with testimony, I now yield to the distinguished Ranking Member 

from the great State of California for any remarks he may have. 

f 


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Prepared Statement of Hon. Jerry McNerney, Ranking Democratic 

Member, Subcommittee on Disability Assistance and Memorial Affairs 

The purpose of today’s hearing will be to explore the policy implications of five 

bills, H.R. 923, H.R. 1025, H.R. 1826, H.R. 1898 and H.R. 2349. 

The Pension Protection Act of 2011, H.R. 923, introduced by Mr. Alcee 

Hastings of Florida, would prohibit VA from counting casualty loss and pain and 

suffering payments as income for the purposes of determining eligibility for the nonservice-connected pension benefit. 

I think this is a worthwhile bill that is on track from a policy perspective and 

I look forward to advancing it to the Full Committee. 

The second bill on today’s agenda, H.R. 1025, sponsored by Mr. Walz, a hardworking Member of this Committee, would grant honorary veteran status to retired 

members of the Guard and Reserve who completed 20 years of service. 

I support this bill but understand the reservations concerning moving the envelope on what type of service accords veteran status as outlined in VA testimony and 

in that of some of the VSOs. 

H.R. 1826, introduced by Mr. Bilirakis, would provide criminal penalties against 

any person who solicits, contracts for, charges, or receives any fee or compensation 

from a veteran for advice on how to file a benefits claim or the preparation, presentation, or prosecution of a claim before the date on which a notice of disagreement 

is filed in a proceeding on the claim. 

Our Nation’s veterans have sacrificed so much and we must protect them from 

those bad actors looking to take advantage of the benefits they have earned and deserve. However, I have heard concerns that this bill may create unintended negative effects on veterans seeking help from available sources, as well as whether imposition 

of criminal provisions are necessary in light of current law and regulations or even 

realistically enforceable. 

Next, H.R. 1898, the Veterans 2nd Amendment Protection Act, sponsored by 

Mr. Denny Rehberg of Montana would require that a judicial authority adjudicate 

a veteran or other beneficiary in need of fiduciary assistance as mentally defective 

for the purposes of reporting to the DOJ National Instant Background Check System (NICS), instead of the current system which requires VA to report these individuals to NICS. 

The final piece of legislation, H.R. 2349, the Veterans’ Benefits Training Improvement Act, is your bill, Mr. Chairman which attempts to hold the VBA to 

greater testing and training requirements. 

I applaud your effort. Nonetheless, I have concerns that its provisions may be duplicative or run counter to the law on testing, certification and training as established in P.L. 110–389. 

However, I understand that VA reports that it received the bill in too late of a 

time frame to provide views and I want the Subcommittee to have the benefit of 

all stakeholders before making a final decision on this measure. 

These are all worthwhile measures that deserve consideration by this Subcommittee. 

I thank the Members for their thoughtful legislation. 

I thank our other esteemed witnesses for joining us today and look forward to receiving their testimonies. 

Thank you and I yield back. f 

Prepared Statement of Hon. Alcee L. Hastings, 

a Representative in Congress from the State of Florida 

Chairman Runyan, Ranking Member McNerney, and Distinguished Members of 

the Subcommittee: 

Exactly 1 year ago, I testified before this Subcommittee on H.R. 4541, the Veterans Pensions Protection Act of 2010. On July 27, 2010, the bill was marked up 

and forwarded to the Committee on Veterans’ Affairs by voice vote. On September 

28, 2010, the bill passed by voice vote as part of H.R. 6132, the Veterans Benefits 

and Economic Welfare Improvement Act of 2010. 

Indeed, the Veterans Pensions Protection Act is a common sense and much-needed 

piece of legislation. It is also well supported by numerous veterans’ organizations. 

I am grateful for the opportunity to once again testify in favor of this important legislation and thank the Subcommittee for holding today’s hearing. However, I am 

saddened that the Senate did not consider this bill before Congress adjourned last 

year. It is my sincere hope that Congress can work together to pass this legislation 

in an effort to build better lives for all of America’s veterans and their families. 


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I would also like to welcome and recognize the veterans in the room today and 

express my gratitude for their service to our Nation. Each of you has served our 

Nation with honor and dignity and for that I am truly humbled by your service. 

Furthermore, I would like to recognize and thank the countless veterans’ organizations for their ongoing commitment to our veterans. 

I decided to introduce the Veterans Pensions Protection Act after one of my constituents, Mr. Kerry Scriber, a navy veteran with muscular dystrophy, had his pension abruptly cancelled. Mr. Scriber did not break the law, nor did he commit any 

crime. In March 2008, he was hit by a truck when crossing the street in his wheelchair with his service dog on his way to the pharmacy. He flew 10 feet into the air 

and landed head-first on the pavement, suffering broken bones and teeth. Additionally, his service dog was injured and his wheelchair destroyed. 

As a law-abiding citizen, Mr. Scriber reported the incident to the Veterans Administration (VA), including the insurance settlement payment that he received from 

the driver’s insurance to cover his medical expenses and the replacement cost of his 

wheelchair. As a result, the VA cancelled his pension benefits for an entire year. 

When assessing a veteran’s eligibility for a pension, the VA considers a variety 

of sources of revenue to determine a veteran’s annual income. If this amount exceeds the income limit set by the VA, the veteran does not qualify for a pension or 

loses their benefits. Currently, the VA considers any reimbursement that compensates a veteran for his or her expenses due to an accident, theft, or loss as income. 

Under current law, if a veteran is seriously injured in an accident or is the victim 

of a theft and receives insurance compensation to cover their medical expenses; the 

replacement cost of the stolen items; or for pain and suffering, they will likely lose 

their benefits. In effect, the law punishes veterans when they suffer from such an 

accident or theft. 

Mr. Scriber reached out to the VA several times, asking to have his pension reinstated because he could not cover his medical bills; replace his wheelchair; pay for 

daily expenses; or afford his mortgage without his pension. Each time, the VA refused to reinstate his pension. He had fallen below the poverty line and was on the 

verge of losing his home and joining the ranks of over 100,000 homeless veterans 

nationwide. In the spring of 2009, Mr. Scriber reached out to my office in desperate 

need of assistance. I contacted the West Palm Beach VA medical center and wrote 

several letters to Secretary Eric Shinseki, however they did not change their policy, 

nor did they restore Mr. Scriber’s benefits for a whole year. 

I understand that the VA faces greater challenges as more servicemembers return 

from the battlefield, but we must do everything in our power to ensure that our veterans have the benefits they rightly deserve. I am distraught that the VA can move 

so expeditiously to cancel the pension of an unemployed and disabled veteran without notice. The VA has a moral obligation to care for our veterans and their families. It is disheartening that veterans are overlooked and mistreated at times due 

to flaws in VA regulations. 

The Veterans Pensions Protection Act amends the U.S. Code to exempt the reimbursement of expenses related to accidents, theft, loss or casualty loss from being 

included in the determination of a veteran’s income. This will guarantee the continuity of our veterans’ pensions and that no veteran will have their benefits unfairly and abruptly depreciated or cancelled. My distinguished colleague from Montana, Senator Jon Tester, has introduced a companion bill after a similar incident 

happened to one of his constituents. The Senate Committee on Veterans’ Affairs 

held a hearing on the bill last month. 

Clearly, there is something wrong with our current law. It is imperative that the 

VA ensure that no veteran face the grave difficulties that Mr. Scriber did. We must 

enact regulations that help veterans live better lives, not hurt them, which includes 

issuing pension benefits to veterans who legitimately meet the income criteria and 

rely on such assistance to survive. Our veterans have shown their devotion to our 

Nation with their bravery and sacrifice. We must now prove our dedication to those 

heroes by treating them in accordance with the values and ideals upon which this 

great Nation was founded. 

Mr. Chairman, Ranking Member McNerney, Distinguished Members of the Subcommittee, I ask for your support of this important legislation. This concludes my 

testimony. I am now pleased to answer any questions. Thank you. 

f 


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Prepared Statement of Raymond Kelley, Director, 

National Legislative Service, Veterans of Foreign Wars of the United States 

MR. CHAIRMAN AND MEMBERS OF THIS COMMITTEE: 

On behalf of the 2.1 million members of the Veterans of Foreign Wars of the 

United States and our Auxiliaries, the VFW would like to thank this Subcommittee 

for the opportunity to present its views on these bills. 

H.R. 923, Veterans Pensions Protection Act of 2011 

The VFW appreciates the intent of this legislation, but believes it will impose an 

undue burden on VA. It would require VA to make further determinations regarding 

replacement values in cases of insurance settlements, thus reducing resources available to the timely processing of other pension claims. These additional decisions will 

further delay and complicate a relatively simple benefit. We urge the Committee to 

craft a less burdensome method for accomplishing this laudable goal. 

H.R. 1025, To amend title 38, United States Code, to recognize the service 

in the reserve components of certain persons by honoring them with 

status as veterans under law 

The VFW strongly supports this legislation and its companion bill in the Senate, 

S. 491, which would give the men and women who choose to serve our Nation in 

the Reserve component the recognition that their service demands. Many who serve 

in the Guard and Reserve are in positions that support the deployments of their active duty comrades to make sure the unit is fully prepared when called upon. Unfortunately, some of these men and women serve at least 20 years and are entitled 

to retirement pay, TRICARE, and other benefits, but are not considered a veteran 

according to the letter of the law. 

H.R. 1826, To amend title 38, United States Code, to reinstate penalties for 

charging veterans unauthorized fees 

The VFW strongly supports legislation that would make it a crime for individuals 

or companies to charge veterans for assistance in applying for disability benefits. 

Federal law prohibits charging fees for a disability claim, but VA is currently unable 

to enforce the law as there are no penalties or fines imposed. H.R. 1836 would make 

it a misdemeanor with penalties and up to 1 year in prison. Protecting our veterans 

from companies looking to make a profit off their service and sacrifice will give 

many veterans peace of mind when filing a disability claim. The VFW applauds this 

change in law, and looks forward to its enactment. 

H.R. 1898, Veterans 2nd Amendment Protection Act 

The VFW supports H.R. 1898, which would provide a layer of protection for veterans who might be seeking or undergoing mental health care for service-related 

psychological disorders from losing their Second Amendment right. Adding a provision that will require a finding through the legal system that the veteran’s condition 

causes a danger to him or herself or others will prevent a veteran’s name from being 

automatically added to Federal no-sell lists. 

H.R. 2349, The Veterans’ Benefits Training Improvement Act of 2011 

Chairman Runyan, thank you for seeing the importance of producing quality disability claims. The VFW agrees that to successfully reduce the backlog and to fix 

the claims processing system, producing a quality claim the first time is a critical 

part of that success. Your bill, H.R. 2349, begins the task of ensuring VA employees 

who process claims have core competencies and retain those competencies in an occupation that is always changing by evaluating their skills. However, much like the 

‘‘Employee Certification Act of 2008,’’ now section 7732A of title 38, U.S.C., this bill 

is a container that will be filled with a VA solution. As we have found with the Employee Certification Act, that training solution has not been beneficial in improving 

quality claims. The VFW’s concern is that VA’s solution will not be geared toward 

truly improving quality, but will only be training that conforms to the law, failing 

to achieve the goal of ensuring that claims processors have the tools they need to 

produce quality work. 

A more specific evaluation and training system is needed to ensure our mutual 

goal of increasing quality claims. To do this, the VFW believes the training and 

evaluation should be based on the findings of the Systematic Technical Accuracy Review system (STAR). Each month, STAR reports on the quality of each Regional Office. To truly improve quality, training should be ongoing and based on the findings 

of the STAR report, and conducted monthly to correct deficiencies. Tying quality assurance with quality control will ensure that VA employees are being trained on 

issues that have negatively impacted quality claims. Also, the VFW suggests that 


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the report to Congress should have an explanation of how the assessments were 

conducted. This explanation should include the type of assessment that was conducted and who was responsible for the evaluations. Basing success of training on 

assessment results alone will not provide a full picture of the quality of the training. 

Mr. Chairman, this concludes my statement. I would be happy to answer any 

questions that you or the Members of the Committee may have. 

f 

Prepared Statement of Ian de Planque, Deputy Director, 

National Legislative Commission, American Legion 

EXECUTIVE SUMMARY 

• H.R. 923: American Legion supports 

• H.R. 1025: American Legion neither supports nor opposes 

• H.R. 1826: American Legion supports 

• H.R. 1898: American Legion supports 

• H.R. 2349: American Legion supports in principle with reservations 

Chairman Runyan, Ranking Member McNerney, and Members of the Committee, 

thank you for this opportunity for The American Legion to present its views on the 

following pieces of pending legislation. 

H.R. 923: Veterans Pensions Protection Act of 2011 

This bill would exclude from annual income, for purposes of eligibility for pensions 

for veterans and their surviving spouses and children, reimbursements resulting 

from: (1) any accident; (2) any theft or loss; (3) any casualty loss; (4) medical expenses resulting from any such accident, theft, or loss; and (5) pain and suffering 

(including insurance settlement payments and general damages awarded by a court) 

related to such accident, theft, or loss. 

Currently, any money received from an insurance claim, court judgment, or injury 

settlement counts toward a veteran’s income when the VA determines pension eligibility. This means low-income veterans who are compensated even for small settlements risk losing their pensions. The bill seeks to change the rules surrounding the 

income eligibility rules. Veterans should not have to worry about losing their pensions because they became victims by some other person’s actions. 

The American Legion supports this bill. 

H.R. 1025: To amend title 38, United States Code, to recognize the service in 

the reserve components of certain persons by honoring them with status as 

veterans under law 

The purpose of this legislation is to ‘‘honor as a veteran’’ those servicemembers 

who complete 20 years of service in the Guard or Reserve components, yet ‘‘not for 

any purpose of benefits.’’ This represents an unusual distinction which requires further clarification. ‘‘Veteran’’ as a legal status confers certain benefits. Title 38 is 

quite clear in providing specific definitions. There are legal considerations for 

‘‘claiming veteran status improperly’’ here and elsewhere that carry serious consequences. 

If someone serves in the reserve components and chooses to call themselves a veteran yet not hold out that distinction for any legal benefit, it should not take an 

act of Congress to allow them to. If instead a group of servicemembers are seeking 

recognition for their service and will derive benefit from that recognition, then this 

should be acknowledged. This bill seems squarely in a no-man’s land between these 

two possible scenarios. 

Certainly, the role of the Reserve Component service-member has changed since 

the Gulf War that began in 1990. Prior to that war the reserve component was regarded as a strategic force to be called upon when greater mobilization of the armed 

forces was required for our national security. However, much of the combat power 

that comprises our warfighting efforts now resides in the reserve component. For 

this reason, the reserve component has changed from a strategic force to an operational force. Thus, in a wartime era where we as a Nation are more reliant on the 

Guard and Reserve, it is imperative that earned benefits fairly reflect level of sacrifice. The American Legion will continue to review the issue of fair entitlements 

for Reserve and Guard members to develop a fair and complete organizational resolution that supports fair equity in benefits for all who have served. 


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However, in the case of this piece of legislation, there still remain too many unanswered questions, and as The American Legion is a grassroots organization deriving 

its operational mandate from the will of the 2.4 million members, we cannot support 

or oppose this legislation without a more clear position in the form of a resolution 

provided by membership. 

The American Legion neither supports nor opposes this legislation. 

H.R. 1826: To amend title 38, United States Code, to reinstate criminal 

penalties for persons charging veterans unauthorized fees 

This bill does exactly what is stated in the title, reinstating criminal penalties for 

those who seek to exploit veterans with unauthorized fees. The American Legion 

supports this needed legislation, and recognizes its importance in the changing landscape of veterans benefits. 

As a greater proportion of veterans are reaching retirement age and older, the 

group is growing increasingly vulnerable to predatory influences already preying on 

the segment of the population requiring elder-care. As this trend continues, the potential for fraud increases more and more. Already The American Legion has recognized anecdotal evidence of veterans being taken advantage of for profit. This practice is particularly despicable when it is considered the majority of veterans falling 

prey to predatory schemes are those in need of non-service-connected pension, and 

therefore the most financially needy of veterans. This practice cannot continue. 

The American Legion does not and will not charge veterans for assistance with 

their claims for deserved benefits. While we recognize some parties may justly 

charge veterans for services, particularly at the higher court levels, this is indeed 

an area where the veterans most deserving of benefits are seeing their earned benefits leached away. Real consequences are needed to help curtail this practice. 

The American Legion supports this legislation. 

H.R. 1898: Veterans 2nd Amendment Protection Act 

The American Legion firmly supports the right of all Americans to keep and bear 

arms as protected in the Bill of Rights. We support this legislation because it recognizes certain provisions of the veterans disability process are separate and distinct 

from those in other portions of the law, and there should not be an automatic transferability of findings. 

Put simply, a veteran found incompetent to manage their own funds, as may be 

the case in fiduciary findings, is not necessarily incompetent to make other choices 

about their life, such as the responsible use of firearms. Often findings in a veterans 

disability case may reflect competency issues with finances which in no way reflect 

their rest of their capacity to make responsible and adult choices about behavior inherent to participation in polite society. 

In some ways, an automatic structure to the law reinforces already negative 

stereotypes about ‘‘crazy post-traumatic stress disorder (PTSD) veterans’’ and 

‘‘Rambo like sprees’’ when the facts clearly bear out the reality is far to the contrary. The vast and overwhelming majority of veterans suffering from mental disorder suffer only partially, and while they may have diminished emotional performance necessitating compensation, they are hardly unfit to make adult decisions and 

live their lives responsibly. When stigmas are reinforced, they unnecessarily contribute to the problem of veterans refusing to seek treatment because of associated 

stigma, and they therefore compound their disability by letting it remain untreated. 

The law still allows for veterans to be found a by judge, magistrate, or other judicial authority of competent jurisdiction that such person is a danger to himself or 

herself or others, so this is not a wholesale removal of a bar to truly dangerous individuals. This merely removes the unjust situation wherein veterans are judged solely by a class to which they belong, and not due to the individual merits of their 

situation. 

The American Legion supports this legislation. 

H.R. 2349: Veterans’ Benefits Training Improvement Act of 2011 

This bill is intriguing in principle and addresses in some way a key concern of 

The American Legion regarding the operation of the claims benefits system, namely 

the lack of consequences to VA employees for failing to understand the system they 

are implementing. As it presently stands, veterans and veterans alone bear the 

lion’s share of consequences from faulty decision-making. This is fundamentally unfair in a system ostensibly designed to compensate them for service derived disabilities. 


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While this proposal is intriguing, there are some concerns which, if properly addressed could make the overall proposal a helpful tool in moving the benefits system 

in the direction of providing the aid to veteran as intended. 

The bill proposes an annual assessment of skills of appropriate employees and 

managers, with a required remedial development plan demanded when employees 

and managers prove deficient in areas identified by testing. While the concept behind this is laudable, there is already certain required testing, and perhaps the real 

question is a lack of enforcement or consequences for testing already in place. Certainly, there have been anecdotal complaints from employees of being managed by 

personnel with no knowledge of the required tasks. This is problematic in some 

senses, because in order to develop an effective management plan one should certainly have knowledge of the operations being performed. 

Any remedial program should be conducted with the ultimate aim of improving 

the overall operations. As The American Legion has previously stated on numerous 

occasions, there is a fundamental flaw in VBA’s error reporting system in that it 

does not have a mechanism to direct training. If there is to be testing of skills, this 

also should naturally flow into directing a training mechanism. If a child fails all 

of the problems on a math test relating to binomial equations, a teacher or parent 

knows to work with that child on binomial equations. Similarly, if the entire class 

or a lion’s share of the class fails the same problems, the teacher can realize there 

may be systemic inadequacy in how the portion of the class relating to binomial 

equations is being taught. This is what The American Legion believes must drive 

VBA’s training regimen. 

Whether though testing or examination of errors through STAR and evaluation 

of common errors at the Board of Veterans Appeals and the Appeals Management 

Center, VBA must find a way to identify their weak points and strengthen them. 

In principle, The American Legion believes this legislation could, with some refinement to ensure it meshes more properly with existing testing structures, be 

helpful in changing the problem with training as outlined above. Follow through to 

ensure compliance will be essential, and as we have been previously critical of 

VBA’s policy of granting bonuses while failing to meet mission goals, perhaps some 

mechanism could be devised to also tie knowledge of material to bonus criteria, in 

addition to meeting mission goals. We cannot afford a repeat situation, such as in 

2010, where VBA saw a decrease in accuracy rate, and an increase in number of 

claims pending over 125 days, and yet the average Senior Executive Service bonus 

in VBA exceeded the annual income of a veteran living on pension. 

The American Legion supports this bill with reservations, related to implementation. 

As always, The American Legion thanks this Committee for the opportunity to 

provide commentary and to explain the position of the over 2.4 million veteran 

members of this organization. 

f 

Prepared Statement of Jeffrey C. Hall, 

Assistant National Legislative Director, Disabled American Veterans 

EXECUTIVE SUMMARY 

H.R. 2349—the Veterans’ Benefits Training Improvement Act of 2011 would direct 

the Secretary of Veterans Affairs to annually assess the skills of certain employees 

and managers of the Veterans Benefits Administration. 

• DAV supports the intent of this legislation to train, test and hold accountable 

all employees and managers involved in claims processing, however Congress 

should first enforce existing testing requirements before moving new legislation. 

• VBA training and testing programs must be fully integrated with existing and 

new quality assurance and quality control programs to ensure that claims are 

done right the first time. 

• If new testing requirements are to be implemented, VBA must be required to 

consult with VSO stakeholders and employee representatives in developing such 

tests. 

H.R. 1025—would recognize, as veterans, members of the reserves who retire due 

to age; however, these individuals would not be entitled to benefits by virtue of this 

status alone. DAV is concerned about creating misunderstanding in the American 

public about who is a ‘‘veteran’’, while also causing confusion amongst reservists as 

to their entitlement to veterans benefits. 


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H.R. 1826—would establish criminal penalties for persons unlawfully charging 

veterans unauthorized fees for claims representation. DAV supports this legislation 

in order to strengthen legal protection for disabled veterans’ resources. 

H.R. 1898—the Veterans 2nd Amendment Protection Act would prevent veterans 

from being adjudicated as mentally incompetent to purchase a firearm without an 

order or finding from a judge, magistrate or other judicial authority. DAV has no 

position on this legislation. 

H.R. 923—the Veterans Pensions Protection Act of 2011 would exclude from annual income calculations for non-service-connected pension benefits, insurance reimbursements resulting from accidents, theft or loss. DAV does not oppose passage of 

this legislation. 

Chairman Runyan, Ranking Member McNerney and Members of the Subcommittee: 

Thank you for inviting the Disabled American Veterans (DAV) to testify at this 

legislative hearing of the Subcommittee on Disability Assistance and Memorial Affairs. As you know, DAV is a non-profit organization comprised of 1.2 million service-disabled veterans focused on building better lives for America’s disabled veterans 

and their families. 

Mr. Chairman, at the Subcommittee’s request, DAV is pleased to be here today 

to present our views on the bills under consideration by the Subcommittee. 

H.R. 2349, the Veterans Benefits Training Improvements Act of 2011, would require appropriate Veterans Benefits Administration (VBA) employees and managers 

involved in processing claims for compensation or pension benefits to have their 

skills assessed annually. Any employee or manager who receives a less than satisfactory result on any part of the assessment would be subject to remediation to address each deficiency in their skills. The legislation also requires each of these employees and managers to have individualized training plans developed and implemented related to their skills or lack thereof. If after two opportunities for remediation, the employee or manager is still unable to receive a satisfactory result on 

their assessment, they would be subject to disciplinary actions. The legislation also 

requires an annual report detailing the results of the new annual skills assessments, including a summary of the remediation efforts and disciplinary actions. 

Mr. Chairman, DAV has long supported the intent of this legislation: to require 

testing, training and accountability for all employees and managers involved in 

processing claims for veterans disability compensation benefits. Like you, we believe 

regular testing of all relevant employees and managers is an effective way to determine if they have the requisite skills to properly perform their jobs. When testing 

finds gaps or deficiencies in the skills or knowledge required to properly process veterans’ benefit claims, it is imperative that additional, targeted training be provided 

to those employees or managers in order to bring their skills up to the level required 

by their positions. However, should repeated attempts to correct such identified deficiencies be unsuccessful, it is incumbent upon VBA to take appropriate personnel 

actions so that only qualified employees and managers are involved in processing 

claims. Only through such training and testing, as well as comprehensive quality 

control measures, can VBA develop a claims processing system that provides both 

accurate and timely results for disabled veterans, their loved ones and survivors. 

DAV’s employee training and development program includes significant training 

and testing requirements for each of our approximately 300 National Service Officers (NSOs) and Transition Service Officers (TSOs). Each of them are required to 

successfully complete our comprehensive 32-month Structured and Continued Training program approximately every 3 years, which includes numerous examinations 

that must be passed in order to continue moving forward. We hold our supervisors 

to the same high standards set for the personnel they manage, including all testing 

requirements. 

However, while we agree that new testing requirements may be necessary at 

VBA, we would recommend that before attempting to enact new legislation, Congress should first examine how similar laws already on the books are being implemented and enforced. Perhaps more importantly, we believe it is imperative that all 

training and testing programs are made part of and fully integrated within existing 

and new quality assurance and quality control programs. The goal must be to create 

a continuous improvement program that identifies employee errors, as well as systemic flaws and weaknesses before they lead to inaccurate decisions for veterans. 

Mr. Chairman, as you know Public Law 110–389, the Veterans Benefits Act of 

2008, which was enacted on October 10, 2008, required VBA to put in place a certification examination process for VBA employees and managers involved in processing 

claims, which included some language very similar to language found in H.R. 2349. 


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Yet, almost 3 years after enactment of that legislation there are still gaps in and 

problems with this testing process. While certification exams were developed for 

Veterans Service Representatives (VSRs), Rating Veterans Service Representatives 

(RVSRs) and Decision Review Officers (DROs), there are not yet any examinations 

for coaches, supervisors or managers in VBA Regional Offices (ROs). 

Although the law required it, VBA did not consult with ‘‘interested stakeholders’’ 

in developing these examinations; neither DAV nor other veterans service organizations involved in claims process were consulted. Considering DAV’s role, experience 

and expertise in the processing of claims for disability compensation, we believe 

VBA would be well served to consult with DAV and other VSOs when developing 

tests or examinations for their employees and managers. 

While the intention of P.L. 110–389 was to ensure that all relevant VBA employees had the requisite skills to do their jobs, we have been told that the examinations 

are primarily being done only when there is a GS-level grade increase or other promotion under consideration. We have also heard complaints that the examinations 

do not properly assess the skills or knowledge required for each position. There have 

also been some reports that early versions of the examinations resulted in extremely 

high failure rates. We would encourage the Subcommittee to require VBA to provide 

comprehensive information on the development and implementation of the certification examinations required by section 7732A of title 38, including examinations 

for managers. While there are still problems and questions related to the implementation of these certification examinations, DAV believes it would be premature to 

insert into title 38 a new section 7732B creating an annual employee assessment 

program without first fixing the problems with the existing testing program created 

by section 7732A. 

While testing and training are essential to reforming the claims processing system 

they must be integrated into VBA’s quality assurance and control programs to provide effectiveness. Results of employee testing do not just point out individual weaknesses that must be addressed; they also reveal systemic problems in both the 

claims process as well as employee training programs themselves. Unless there are 

direct linkages between training, testing and quality control, VBA will miss the opportunity to take full advantage of the myriad of data that exists, including STAR 

reviews, coaches reviews, Board of Veterans Appeals remands and other quality assurance programs. VBA may want to consider whether to consolidate training, testing, and quality control programs in a single location under the control of the Compensation Service. 

Additionally, we offer the following recommendations to strengthen the language 

in H.R. 2349 should this or something similar be advanced by the Subcommittee. 

As introduced, the bill would require that the Secretary, ‘‘. . . annually assess the 

skills of appropriate employees and managers . . .’’. While we understand that the 

term ‘‘assess’’ is intended to be mean an objective test, the terminology is not specific enough and should be clear on the type of assessment required. Since section 

7732A of the statute that would precede this new section uses the term ‘‘examination’’, we would recommend that more specific language be used to indicate exactly 

what type of assessment is intended in a new section 7732B. 

We also recommend that the Subcommittee consider further defining who the ‘‘appropriate employees and managers’’ would be. In particular, DAV believes that 

coaches, supervisors and managers who have the authority to overrule the judgment 

of an employee should be held to the same testing standard as that employee. It 

is important for any new legislation to specify exactly which employees and managers to be tested annually, as well as what testing requirements for managers that 

are substantially similar to those taken by the employees they supervise. 

Likewise, DAV strongly recommends that language about test development, similar to that already in section 7732A, be included in any new testing legislation. This 

would allow proper consultation with VSO stakeholders, as well as employee representatives, so that our input can be fully integrated in the development and implementation of new testing procedures. 

Moreover, DAV recommends that the Subcommittee include new language to ensure that the results of any new testing be used to identify not just employee deficiencies, but also problems in the training and claims processing systems. All quality assurance and control measures, whether for employees, stations or the entire 

claims processing system, should be aggregated and analyzed together in order to 

identify error trends. For example, if a statistically relevant number of employees 

all fail a particular part of a skills test or exam, VBA must not just remediate those 

employees, but also consider whether there are system-wide problems related to this 

aspect of the job, or whether training modules need to be changed, or whether the 

test itself needs to be changed. The new Veterans Benefits Management System 

should serve as the backbone to bring together all of this separate data into a uniVerDate Nov 24 2008 02:44 Dec 22, 2011 Jkt 068458 PO 00000 Frm 00044 Fmt 6604 Sfmt 6621 I:\VA\68458.XXX GPO1 PsN: 68458

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fied quality control system that is continuously using test results to strengthen 

training and to strengthen claims processing accuracy. 

Finally, we strongly recommend that the Subcommittee change the term ‘‘disciplinary action’’ to ‘‘personnel action’’, which accurately conveys the importance of individual accountability without needlessly appearing to be punitive. Disciplinary actions imply misconduct or the breaking rules or laws. Employees who perform unsatisfactorily on tests or who are unable to properly perform their jobs may need 

to be moved out of their position, which should not be seen as a disciplinary action 

or punishment. 

Mr. Chairman, like you, we believe that training and testing are important components of a benefits system designed to decide each claim right the first time. However, we believe Congress must first examine if and how current training and testing requirements are being implemented and enforced before adding new testing requirements,. More importantly, we believe that training and testing must be fully 

integrated with quality assurance and quality control programs to truly reform the 

claims processing system and would welcome the opportunity to work with the Subcommittee towards that goal. 

H.R. 1025 would amend title 38, United States Code, by recognizing as veterans 

those members of a reserve component of the armed forces who are entitled to retired pay for nonregular service. Should this legislation be passed, it would honor 

this group of reserve component retirees with the status of veteran; however, this 

new status alone would not entitle these individuals to any benefit provided to those 

who served on active duty. 

DAV does not have a resolution on this matter. We are concerned, however, that 

measures such as this may lead to a misunderstanding in the minds of the American public about those veterans who earned the designation of veteran by virtue 

of their active duty service, compared to those who would be granted the honorary 

title of veteran. Moreover, we feel a subsequent confusion might be created amongst 

reservists as to exactly what benefits they would be entitled to receive. 

H.R. 1826 would institute criminal penalties for persons charging veterans unauthorized fees for representation before the Department of Veterans Affairs (VA). 

Specifically, this bill would establish penalties, including fines and/or imprisonment 

of not more than 1 year as provided under title 18, for anyone who solicits, contracts 

for, charges, receives, or attempts to solicit, contract for, charge, or receive, any fee 

or compensation for advice on how to file a claim for benefits or the preparation, 

presentation, or prosecution of a claim before a claimant has submitted a ‘‘notice 

of disagreement’’ (NOD) in a proceeding on the claim. 

While DAV has no specific resolution on this matter, we see the intent of legislation as vital to the protection of veterans’ resources, which are often limited or fixed. 

The process upon which veterans, their families and beneficiaries receive benefits 

is designed so that they will receive the full measure of aid from disability compensation and other monetary payments without unnecessarily having part of that 

benefit diverted into the pockets of others who have no entitlement to them. Although current law only allows attorney’s to collect fees for representation once a 

claimant enters into the appellate process, it does not include penalties for anyone 

who unlawfully collects fees for representation prior to an NOD being filed. If enacted, this legislation would codify criminal penalties in order to better protect veterans from such abuse. 

Although DAV has not yet adopted a specific resolution on this particular matter, 

we support passage of H.R. 1826. 

Mr. Chairman, we would also note that from the inception of a claim and through 

all phases of the process, a claimant can obtain professional quality representation 

at no cost from accredited Veterans Service Organizations (VSOs), such as DAV, or 

from other accredited organizations. Although the current process allows an attorney to collect fees from a claimant we continue to be concerned that there is no limitation on the amount of fees that may be charged by attorneys for representing a 

veteran. During our 2010 National Convention DAV’s membership adopted resolution #288 calling for legislation to provide a reasonable cap on the amount of fees 

an attorney can charge veterans for benefits counseling and claims services before 

VA and we urge the Subcommittee to consider such legislation. 

H.R. 1898, the Veterans 2nd Amendment Protection Act, would clarify the conditions under which certain persons may be treated as adjudicated mentally incompetent without an order or finding from a judge, magistrate or other judicial authority. This legislation provides that, in the absence of a judicial determination of mental incompetency, VA would be prohibited from reporting an individual veteran’s 

identity or competency status to any authority that could restrict that veteran’s ability to purchase a firearm. 

DAV has no resolution on this matter and takes no position on this bill. 


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H.R. 923, the Veterans Pensions Protection Act of 2011,would exempt or exclude 

reimbursements of expenses related to accident, theft, loss, or casualty loss from determinations of annual income with respect to non-service-connected pension benefits. This legislation is intended to ensure those individuals who are in receipt of 

this income limited benefit will not have their benefit reduced because their loss 

was covered by insurance. 

Although this issue is outside the scope of our mission we would not oppose passage of H.R. 923. 

Mr. Chairman, this concludes my testimony and I would be happy to answer any 

questions the Subcommittee may have. Thank you. 

f 

Prepared Statement of Al Garver, Executive Director, 

Enlisted Association of the National Guard of the United States 

Chairman Runyan, Ranking Member McNerney, Members of the Committee, 

thank you for the opportunity to testify today. 

As the Executive Director of the Enlisted Association of the National Guard of the 

United States (EANGUS), I am here to speak on behalf of the 412,000 soldiers and 

airmen currently serving in our Nation’s National Guard. In this instance, I am also 

speaking on behalf of their families, as well as the hundreds of thousands of retired 

Guardsmen across America. I hope my testimony might have additional impact due 

to my 28 years of service—including 8 years on active duty and 20 years in the 

Guard and Reserve—and that I am still serving today as a Senior Master Sergeant 

in the U.S. Air Force Reserves at the Pentagon. 

When I first learned of this bill last year, I frankly read it in disbelief. In the 

past 20 years of my service in the Guard and Reserve, I was completely unaware 

that there were retired Guardsmen and Reservists who were not considered ‘‘veterans’’ simply because they served their entire period of service without ever having 

been activated for a qualifying period of Federal active duty service. While the actual numbers of Guardsmen who fall into that category may be relatively small, I 

think it is safe to state it is likely that none of them—right now . . . today—even 

know that they are not considered ‘‘veterans.’’ 

When my father, a World War II veteran, died in 1996, I was in charge of his 

funeral arrangements. I was told by the funeral director what his veterans benefits 

included. I was asked if we would like to inter him in a veterans cemetery. He 

served for 4 years on active duty in the U.S. Navy, from 1941 to 1945, and I remember thinking how nice it was that our Nation wanted to honor his service in that 

way. Now imagine the shock of the family of a retired Guardsmen who served 20– 

40 years, being told by a funeral director and the Veterans Administration that they 

would not qualify for those same honors and that their loved one was ‘‘technically 

not a veteran.’’ It is difficult to fathom how this loophole has gone on unnoticed and 

without remedy for so long. 

EANGUS is truly indebted to Congressman Tim Walz, a retired Command Sergeant Major with 24 years of service in the National Guard, for championing this 

issue and EANGUS is proud to endorse his legislation, H.R. 1025. 

The Guard has evolved over 375 years from a simple volunteer militia, to an operational reserve force that can be activated at both the State and Federal level. This 

makes for a rather interesting legal framework required to authorize and support 

a variety of missions. Everyone on this Committee clearly understands the difference between title 10 status, when the President is in command, and title 32 status, when a specific State governor exercises command over the Guard. This difference is not so simple when one takes into account title 38 and veteran status. 

As the Federal component of the Guard’s legal structure, title 10 neatly dovetails 

into title 38 and veterans issues, but the same cannot be said between title 32 and 

title 38. H.R. 1025 bridges the gap between title 32 and title 38, by changing the 

definition of veteran in title 38, section 107(A) and by linking veteran status to title 

10 retirement pay for non-regular service. 

During last year’s consideration of H.R. 3787, which was similar legislation sponsored by Congressman Walz in the 111th Congress, the Congressional Budget Office 

officially stated: 

‘‘Under H.R. 3787, those honorary veterans would not be eligible for additional 

benefits from the Department of Veterans Affairs based on this new status. Thus, 

CBO estimates that the bill would have no budgetary impact. Enacting H.R. 3787 

would not affect direct spending or revenues; therefore, pay-as-you-go procedures 

do not apply.’’ 


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A similar endorsement was made by the Department of Veterans Affairs and H.R. 

3787 moved easily through the House, but languished in the Senate at the end of 

last year. H.R. 1025 was carefully drafted to ensure that this broader definition of 

the term veteran would not be applicable for purposes of compensation; for purposes 

of dependency and indemnity compensation; or for purposes of hospital, nursing 

home, domiciliary and medical care. If enacted into law, this bill will be at NO 

COST to the Nation. Let me emphasize that this issue of bestowing veteran status 

is a matter of honor, nothing more . . . nothing less. 

This year, the Senate companion bill to H.R. 1025, S. 491, was introduced by Senator Mark Pryor in March, and the Senate Committee on Veterans’ Affairs recently 

held a hearing on the bill on June 8th. With movement on both the House and Senate versions, I am optimistic that both chambers of Congress can advance this worthy legislation before the end of the year, and hopefully in time for Veterans Day 

on November 11th. 

The Enlisted Association of the National Guard of the United States respectfully 

requests that the Subcommittee favorably report the Honor America’s Guard Reserve Retirees Act of 2011 to the full House Committee on Veterans’ Affairs. 

Thank you for the opportunity to testify today, and I look forward to your questions. 

f 

Prepared Statement of Jimmy F. Sims, Jr., Rating Veterans Service 

Representative, Veterans Benefits Administration Regional Office, 

Winston-Salem, NC, U.S. Department of Veterans Affairs, and AFGE 

Local 1738 Steward, American Federation of Government Employees, 

AFL–CIO, and AFGE National Veterans Affairs Council 

EXECUTIVE SUMMARY 

AFGE supports the goal of H.R. 2349 to improve the VBA training process by focusing on the skills of managers as well as employees. Managers are in great need 

of more subject matter expertise and hands-on experience to carry out their supervisory, quality assurance, and teaching roles. We also support individualized training plans that would give each employee a meaningful opportunity to improve the 

quality of his or her work and provide management with a valuable feedback loop 

for identifying deficiencies in training, supervision and information technology. 

When employees and managers fail to make performance improvements after attempts at remediation, the appropriate response is a personnel action (e.g. reassignments, demotions, and terminations), not a disciplinary action. 

We strongly urge the creation of a Joint AFGE–VSO Advisory Group that would 

consult regularly with VA officials on training, skills certification, performance 

standards and other aspects of the claims process. 

The proposed assessment and remediation processes should leave less discretion 

to local managers to ensure consistency across ROs and reduce the risk of continued 

misuse of Performance Improvement Plans. 

VBA’s current training capability will not support this legislation. A stronger centralized training program and greater expertise among trainers and supervisors are 

essential first steps to effective implementation of H.R. 2349. To increase training 

consistency, the Subcommittee may also wish to consider centralized video training. 

Annual assessments (Sec. 7732B(a)(1)), using skills certification tests, would be 

helpful for identifying both individual employee deficiencies as well as RO-wide and/ 

or national deficiencies. 

The proposed Individualized Training Plans (section 7732B(a)(2)) will only be effective if VBA addresses existing weaknesses in its training programs. Local managers under intense production pressures have full discretion to design training for 

40 of the 85 hours, and too often, fixed hours of classroom training with significantly 

less ‘‘excluded time’’ to learn complex concepts online. 

For remediation of deficient skills (section 7732B(b)(1), AFGE urges a clearer and 

more consistent use of ‘‘Performance Improvement Plans’’ (PIP) governed by 5 

U.S.C. section 4302, to ensure that PIPs are used to employees with meaningful opportunities to overcome deficiencies, not as a tool to target disliked employees. 


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Dear Chairman Runyan, Ranking Member McNerney and Members of the Subcommittee: 

Thank you for the opportunity to testify on H.R. 2349 on behalf of the American 

Federation of Government Employees and the AFGE National VA Council (hereinafter ‘‘AFGE’’). AFGE is the exclusive representative of Department of Veterans Affairs Veterans Benefits Administration (VBA) employees who process disability 

claims. 

AFGE commends the Chairman for introducing legislation that would improve the 

VBA training process by focusing on the skills of managers as well as employees. 

Given the growing complexity of VBA claims, any effort to improve the claims process must tackle the problem of managers who lack sufficient expertise and experience to carry out their supervisory, quality assurance, and teaching roles. 

We also support the concept of individualized training plans that target deficiencies in specific skills. This approach would give each employee a meaningful opportunity to improve the quality of his or her work. Equally important, it would give 

management a valuable feedback loop for identifying deficiencies in training, supervision, information technology and other factors that are adversely impacting the 

workforce as a whole. 

We have several general comments on the bill: 

• We urge elimination of the proposal for disciplinary actions for employees and 

managers who fail to improve their performances. Rather, Federal employers 

use personnel actions (e.g. reassignments, demotions, and terminations) to address performance after attempts at remediation. 

• We strongly support the creation of a Joint AFGE–VSO Advisory Group that 

would consult regularly with VA officials on training, skills certification, performance standards and other aspects of the claims process. 

• We are concerned about the lack of specific details in the proposed assessment 

and remediation processes; too much local discretion will lead to great inconsistencies across regional offices (RO), and continued misuse of the performance improvement process, at the cost of workplace morale and missed opportunities for 

quality improvement. 

• Currently, VBA lacks the training capability and sufficient subject matter experts to carry out the mandates of this bill. A stronger centralized training program and greater expertise among trainers and supervisors are essential first 

steps to effective implementation of H.R. 2349. 

Section-by-Section Comments (referring to 38 U.S.C. 7732) 

Sec. 7732B(a)(1): Annual Assessment 

Annual assessments would be helpful for identifying both individual employee deficiencies as well as RO-wide and national weaknesses in training, supervision, information technology and other factors that impact quality and production. 

We urge the Subcommittee to use the existing skills certification tests as an assessment tool rather than develop a new assessment tool. VBA already administers 

certification tests for VSRs, RVSRs and DROs. However, these certification tests 

have been plagued by longstanding problems with test design, test administration 

and test preparation curriculum. 

Section 225 of P.L. 110–389 requires VBA to develop certification exams for ‘‘appropriate employees and managers’’ in consultation with stakeholders and employee 

representatives. Again, AFGE strongly supports the creation of the Joint AFGE– 

VSO Advisory Group to carry out these functions. With the regular input of front 

line employees and veterans service officers, who have critical expertise in both 

process and subject matter, the VSR, RVSR and DRO tests can better assess the 

skills that are actually needed to get the claims processed correctly the first time. 

Our members report that too often, these tests measure test taking skills rather 

than needed job skills, or that they are too basic and fail to assess skills needed 

to handle more complex issues. 

H.R. 2389 requires that ‘‘appropriate employees and managers’’ undergo annual 

assessments. We urge the Subcommittee to include all managers involved in supervision, training, mentoring and quality assurance. We find it very troubling that 

VBA new supervisor training currently states in very specific terms that supervisors 

do not need to know the job of the employees they supervise! 

AFGE was troubled to learn from the last consultant team working on skills certification tests that their goal was to develop strong test questions, rather than test 

knowledge. We are concerned that the current contractor (Camber) will continue to 

take this approach. Employees must be able to rely on these tests to maintain their 


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jobs. It is both unfair to the workforce and poor policy to judge employees based on 

the number of times they take an exam that does not adequately test knowledge. 

Finally, VBA has still not implemented the manager skills certification test. Public Law 110–389 required that that this test be developed by October 2009 and administered within 90 days after development (January 2010). If managers had been 

subject to a reliable skills certification test for the past year and a half, we would 

already be seeing improvements in the quality of claims, VBA training programs 

and production levels. 

Sec. 7732B(a)(2): Individualized Training Plan 

The proposed Individualized Training Plan will only be effective if VBA addresses 

existing weaknesses in its training programs. AFGE has longstanding concerns 

about the consistency and quality of training provided to meet the 85 hour yearly 

training mandate. Currently, only 45 of the 85 hours of training are designed centrally. 

Consequently, local managers under intense production pressures who often lack 

training expertise have full discretion to design training for the remaining 40 hours. 

Our members report that managers regularly substitute fixed hours of classroom 

training on complex concepts with significantly less ‘‘excluded time’’ to learn this information online without any instruction. 

Individualized training plans will only be effective if they are designed with the 

input of front line employees and their representatives and VSOs working with 

managers who possess adequate skills in claims processing and training. In some 

offices, simply being promoted to a Decision Review Officer or Super Senior VSR 

automatically qualifies the employee as a trainer who is immediately thrust into an 

instructor role. 

VBA also needs to develop and update training curriculum on a timelier basis. 

Employees are forced to process complex new claims (e.g. in response to a court case 

or legislation) for months and sometimes years before receiving pertinent training 

and guidance. 

Section 7732B(b)(1): Remediation of Deficient Skills 

This bill provision generally describes a process similar to the ‘‘Performance Improvement Plan’’ (PIP) for Federal employees that is governed by 5 U.S.C. section 

4302. Our members experience widely inconsistent uses of PIPs in their ROs, and 

far too often, managers use PIPs to get rid of employees they do not like, rather 

than provide employees with meaningful opportunities to receive training and assistance to overcome deficiencies. Abuse of the PIP process lowers morale, results 

in unnecessary terminations, and wastes VA human resource dollars. 

Therefore, a remediation process must be clear and consistent regarding time 

frames and number of times that remediation is provided. Also, the manager assessing the deficient employee’s progress during remediation must have sufficient expertise and be impartial. If not, RO managers will continue to let favored employees 

(and managers) succeed while depriving others of a fair chance to improve their 

skills and retain their jobs, leading to more errors and delays in the claims process. 

Section 7732B(b)(2): Disciplinary actions for unsatisfactory performance 

As noted, AFGE strongly objects to the use of disciplinary actions to address unsatisfactory performance. This approach is inconsistent with Federal personnel law 

and practice. Rather, after remediation efforts have failed, employees should be subject to personnel actions, e.g. reassignment, demotion or termination as a last resort. 

Across the country, our members report that front line employees are working in 

good faith under intense pressure to meet production standards. They work through 

lunch, breaks, evenings and weekends to work claims and learn new skills. If they 

try, but fail to improve their skills in their current position, the proper and efficient 

response is to first attempt reassignment to a different position. These employees 

have already received training and have useful experience that can be put to use 

in another position at VBA. 

Greater Oversight of VBA Training Is Critical 

In the fall of 2010 I served as a member of a special Site Team that looked at 

the implementation of the final phase of new employee initial training. We found 

that this training phase was not being implemented consistently across the Nation. 

We also found that many employees were not receiving the training designed by the 

Central Training Staff. This report was provided to the Under Secretary for Benefits, yet to this date, no action has been taken to correct these discrepancies. 

We also fear that efforts to improve VBA training will continue in the same path 

as the Systematic Technical Accuracy Review (STAR) program. In March 2009 the 

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ing and monitoring of the STAR staff. It was more than 1 year before VBA took 

steps to act upon the OIG findings. A 2010 Government Accountability Office investigation revealed that STAR continued to be plagued by significant problems that 

were directly linked to the issues identified in the 2009 OIG report. 

Given VBA’s poor track record at implementing needed changes, AFGE strongly 

encourages the creation of the Joint AFGE–VSO Advisory Group previously discussed that will regularly report back to Congress on the progress of VBA reforms. 

f 

Prepared Statement of Richard Paul Cohen, Executive Director, 

National Organization of Veterans’ Advocates, Inc. 

MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE: 

Thank you for the opportunity to present the views of the National Organization 

of Veterans’ Advocates, Inc. (‘‘NOVA’’) concerning pending legislation. 

NOVA is a not-for-profit § 501(c)(6) educational membership organization incorporated in 1993. Its primary purpose and mission is dedicated to train and assist 

attorneys and non-attorney practitioners who represent veterans, surviving spouses, 

and dependents before the Department of Veterans Affairs (‘‘VA’’), the Court of Appeals for Veterans Claims (‘‘CAVC’’), and the United States Court of Appeals for the 

Federal Circuit (‘‘Federal Circuit’’). 

NOVA has written amicus briefs on behalf of claimants before the CAVC, the Federal Circuit and the Supreme Court of the United States of America. The CAVC recognized NOVA’s work on behalf of veterans when it awarded the Hart T. Mankin 

Distinguished Service Award to NOVA in 2000. The positions stated in this testimony have been approved by NOVA’s Board of Directors and represent the shared 

experiences of NOVA’s members as well as my own 19-year experience representing 

claimants before the VBA. 

H.R. 1826 

This bill seeks to amend 38 U.S.C. § 5905 to impose a penalty of fine or imprisonment on those accredited attorneys and agents who are found to be soliciting, contracting for, charging or receiving fees or attempting to do so, for providing advice 

on how to file for VA benefits or for preparing a claim. It also penalizes unlawfully 

withholding any part of a benefit that is due the claimant. 

It is unnecessary to create additional penalties for improper fee practices of accredited attorneys, because if such improper conduct occurs it will be sufficiently 

regulated by the VA and by State Bar Associations. Thus, the VA’s regulations prohibit soliciting, contracting for or receiving fees from claimants prior to the filing 

of a Notice of Disagreement. An accredited attorney who violates the VA’s regulations is subject to suspension or cancellation of accreditation, that is, the right to 

represent claimants before the VA. 38 CFR §§ 14.632 (c)(5), (c)(6), 14.633. Punishment of improper fee practices by accredited attorneys does not stop with losing accreditation because, most State Bar Associations have adopted variations of the 

ABA Model Rule 1.5(a), ABA Model Rules of Professional Conduct which prohibit 

unreasonable fees and which can result in disbarment, or loss of the privilege of 

practicing law. Even without State Bar Association rules, loss of VA accreditation 

may result in disbarment because of reciprocal enforcement of disciplinary findings 

and sanctions. See, for example, Rules 6 and 22, ABA Model Rules for Lawyer Disciplinary Enforcement. 

Similarly, accredited agents, who are not attorneys, are also subject to the VA’s 

rules prohibiting improper fees and may be punished by removal of their privilege 

to represent veterans. 

There may be, however, unregulated persons representing veterans who should be 

subject to criminal sanctions. For example, NOVA has been told that there are some 

insurance agents and ‘‘VA advisors’’, who are neither VA accredited attorneys nor 

accredited agents, and who have been receiving fees from elderly veterans and their 

families for legal advice regarding and for assistance with preparation of applications for aid and attendance benefits from the VA. 

In order punish the conduct of those insurance agents NOVA recommends that 

the bill be rewritten to target the under regulated conduct of insurance agents and 

VA benefits advisors and to establish penalties for improper fees in a new chapter 

60 added to title 38 and directed toward persons other than accredited agents and 

attorneys who are not now regulated. 


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H.R. 1898 

This bill would add 38 U.S.C. § 5511 to insure that a veteran who is deemed mentally incapacitated or incompetent or who experiences extended loss of consciousness 

will not be automatically considered adjudicated as a mental defective under 18 

U.S.C. § 922(d)(4) or (g)(4), and thus prohibited from purchasing or possessing a firearm, without a specific judicial finding that such person is a danger to himself or 

others. 

This is important to prevent veterans from unjustly losing their right to a firearm 

merely because of a VA determination of incompetency. Presently, regulations from 

Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice define 

a person as a mental defective, who is prohibited from buying or possessing a gun, 

in 27 CFR § 478.11 as a person who has had: 

(a) A determination by a court, board, commission, or other lawful authority 

that a person, as a result of marked subnormal intelligence, or mental illness, 

incompetency, condition, or disease: 

1. Is a danger to himself or to others; or 

2. Lacks the mental capacity to contract or manage his own affairs. 

Although section 105 of the ‘‘NICS Improvement Amendments Act of 2007’’ P.L. 

110–180 provides the opportunity for veterans who have been adjudged by the VA 

to be incompetent to request that the VA not report their adjudication, this right 

to request non-reporting by the VA is an unsatisfactory remedy. 

The burden of proof is on the veteran to demonstrate by clear and convincing evidence that he is not likely to act in a manner dangerous to public safety, and that 

granting relief will not be contrary to the public interest. Receiving benefits for a 

mental disability rated at greater than 10 percent disabling, substance abuse or a 

hostile demeanor are all considered by the VA to be factors unfavorable to granting 

the requested relief. In addition, the usual principles of VA law do not apply to 

these determinations, and there is no duty to assist the veteran. Also, the benefit 

of the doubt does not apply and there is no right to appeal an unfavorable determination to the BVA. VA Fast Letter 10–51. 

NOVA supports H.R. 1898 for its protection of veterans who have been found by 

the VA to be unable to manage their money, such as those who suffer from Traumatic Brain Injury, the signature injury of the Global War On Terror, yet who can 

still function as law abiding citizens and who do not present any danger to themselves and others. 

H.R. 2349 

The ‘‘Veterans’ Benefits Training Improvement Act of 2011’’ would add 38 U.S.C. 

§ 7732B to require the Secretary to develop and implement an individualized training program for each employee and manager who is responsible for claims processing and to annually assess their claims processing skills. Additionally, the Act 

provides for remediation of any deficiency in skills which is revealed in the assessment and for an annual report to Congress. 

To the extent that H.R. 2349 requires the Secretary to assess the claims processing skills of each employee and manager who is responsible for claims processing, 

this legislation duplicates the existing provisions of 38 U.S.C. § 7732A(a) which require the Secretary to provide for an examination of appropriate employees and 

managers who are responsible for claims processing. 

For that reason, although NOVA supports this bill, generally, NOVA recommends 

that the provisions of § 7732B be combined with those of § 7732A to create an 

amended § 7732A as follows: 

§ 7732A Training in and annual assessment of claims processing skills 

‘‘(a) IN GENERAL.—The Secretary shall—— 

‘‘(1) annually assess the skills of appropriate employees and managers of the Veterans Benefits Administration who are responsible for 

processing claims for compensation and pension benefits under the 

laws administered by the Secretary; and 

‘‘(2) develop and implement an individualized training plan related 

to such skills for each such employee and manager. 

‘‘(3) consult with appropriate individuals or entities, including training and examination development experts, interested stakeholders, and 

employee representatives in order to develop suitable training and assessment tools. 


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‘‘(b) REMEDIATION OF DEFICIENT SKILLS. 

‘‘(1) In providing training under subsection (a)(2), if any employee or 

manager receives a less than satisfactory result on any portion of an 

assessment under subsection (a)(1), the Secretary shall provide such 

employee or manager with remediation of any deficiency in the skills 

related to such portion of the assessment. 

‘‘(2) In accordance with this title and title 5, the Secretary shall take 

appropriate disciplinary actions with respect to any employee or manager who, after being given two opportunities for remediation under 

paragraph (1), does not receive a satisfactory result on an assessment 

under subsection (a)(1). 

‘‘(c) ANNUAL REPORT.—Not later than March 1 of each year, the Secretary 

shall submit to the Committee on Veterans’ Affairs of the House of Representatives and the Committee on Veterans’ Affairs of the Senate a report on the assessments and training conducted under this section during the previous year, 

including a summary of— ‘‘(1) the results of the assessments under subsection 

(a)(1); ‘‘(2) remediation provided under subsection 13(b)(1); and ‘‘(3) disciplinary 

action taken under subsection (b)(2).’’ 

Although NOVA supports the idea, in general, of training and assessing, as contained in this legislation, NOVA urges this Subcommittee to concentrate on correcting the systemic problems with the present work credit system prior to or in addition to mandating that VA implement new training and assessment procedures. 

The present work credit system has created an environment in which the employees 

and supervisors are rewarded based upon the number of actions they take each day, 

and not the quality or those actions nor whether the action will ultimately lead to 

correct decision-making. Thus, currently there is no incentive for these employees 

or supervisors to take time away from their duties, and thus, their production time, 

to invest in training, quality control and job improvement. 

f 

Prepared Statement of Thomas Murphy, Director, Compensation Service, 

Veterans Benefits Administration, U.S. Department of Veterans Affairs 

Mr. Chairman and Members of the Subcommittee, thank you for the opportunity 

to testify and present the views of the Department of Veterans Affairs (VA) on several legislative items of great interest to Veterans. Joining me today is Richard 

Hipolit, Assistant General Counsel. 

H.R. 923 

H.R. 923, the ‘‘Veterans Pensions Protection Act of 2011,’’ would expand the existing exemption in 38 U.S.C. § 1503(a)(5) by excluding from determinations of annual 

income, for purposes of determining eligibility for improved pension, two types of 

payments: (1) payments regarding reimbursements for expenses related to accident, 

theft, loss, or casualty loss and reimbursements for medical expenses resulting from 

such causes; and (2) payments regarding pain and suffering related to such causes. 

This bill is identical to S. 780, on which we provided testimony before the Senate 

Committee on Veterans’ Affairs on June 8, 2011. 

The exemption for payments received to reimburse Veterans for medical costs and 

payments regarding pain and suffering is an expansion of the current exclusions. 

VA opposes excluding from countable income payments received for pain and suffering because such payments do not constitute a reimbursement for expenses related to daily living. This provision of the bill would be inconsistent with a needsbased program. Payments for pain and suffering are properly considered as available income for purposes of the financial needs test for entitlement to improved pension. 

VA does not oppose the remaining provisions of this bill, which would exempt payments for reimbursement for accident, theft, loss, casualty loss, and resulting medical expenses, subject to Congress identifying offsets for any additional costs. Current law exempts from income determinations reimbursements for any kind of ‘‘casualty loss,’’ which is defined in VA regulation as ‘‘the complete or partial destruction 

of property resulting from an identifiable event of a sudden, unexpected or unusual 

nature.’’ H.R. 923 would broaden the scope of this exemption by including reimbursements for expenses resulting from accident, theft, and ordinary loss. 

VA cannot determine the potential benefit costs related to the exemption for payments for pain and suffering related to accident, theft, loss, or casualty loss because 


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insufficient data are available regarding the frequency or amounts of such payments 

to the population of pension beneficiaries. 

H.R. 1025 

H.R. 1025 would add to chapter 1, title 38, United States Code, a provision to 

honor as Veterans, based on retirement status, certain persons who performed service in reserve components of the Armed Forces but who do not have qualifying service for Veteran status under 38 U.S.C. § 101(2). The bill provides that such persons 

would be ‘‘honored’’ as Veterans, but would not be entitled to any benefit by reason 

of the amendment. 

Under 38 U.S.C. § 101(2), Veteran status is conditioned on the performance of ‘‘active military, naval, or air service.’’ Under current law, a National Guard or Reserve 

member is considered to have had such service only if he or she served on active 

duty, was disabled or died from a disease or injury incurred or aggravated in line 

of duty during active duty for training, or was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident during inactive duty training. H.R. 1025 

would eliminate these service requirements for National Guard or Reserve members 

who served in such a capacity for at least 20 years. Retirement status alone would 

make them eligible for Veteran status. 

VA recognizes that the National Guard and Reserves have admirably served this 

country and in recent years have played an important role in our Nation’s overseas 

conflicts. Nevertheless, VA does not support this bill because it represents a departure from active service as the foundation for Veteran status. This bill would extend 

Veteran status to those who never performed active military, naval, or air service, 

the very circumstance which qualifies an individual as a Veteran. Thus, this bill 

would equate longevity of reserve service with the active service long ago established as the hallmark for Veteran status. 

VA estimates that there would be no additional benefit or administrative costs associated with this bill if enacted. 

H.R. 1826 

H.R. 1826 would amend 38 U.S.C. § 5905 to reinstate in modified form an earlier 

provision that had provided criminal penalties for charging improper fees in connection with representation in a claim for benefits before VA. In particular, it would 

impose such penalties for anyone who, in connection with a proceeding before VA, 

solicits, contracts for, charges, or receives, or attempts to solicit, contract for, charge, 

or receive, any fee or compensation in connection with either the provision of advice 

on how to file a claim for VA benefits or the preparation, presentation, or prosecution of such a claim before the date on which a notice of disagreement is filed. 

In 2006, Congress enacted Public Law 109–461, which amended VA’s statutory 

scheme relating to attorney or agent representation in Veterans benefit cases before 

VA. Among other things, Public Law 109–461 authorized attorneys and agents to 

charge fees for services provided to claimants after the filing of a notice of disagreement with respect to a case. The law also amended 38 U.S.C. § 5905 by deleting a 

provision imposing criminal penalties for soliciting, contracting for, charging, or receiving improper fees for representation in a benefit claim. 

In the past few years, VA has received complaints from various sources about individuals and companies charging, or attempting to charge, fees for providing advice 

or assistance concerning the VA claims process before the filing of a notice of disagreement. VA is also aware that certain individuals or firms may have charged 

Veterans for financial services, which later proved to be ineffective, designed to assist them in qualifying for VA benefits by transferring or shielding assets that 

would otherwise disqualify them. 

The bill would subject to criminal penalty the solicitation or receipt of any fee or 

compensation for providing ‘‘advice on how to file a claim for benefits.’’ Because this 

bill involves criminal penalties, courts are likely to interpret the phrase ‘‘advice on 

how to file a claim for benefits’’ narrowly as referring to advice on how to complete 

an application for VA benefits or where to submit such an application. Consequently, the bill would be unlikely to deter the solicitation or receipt of any fee 

or compensation for the provision of advice on how to transfer or shield financial 

assets in order to become eligible for certain VA benefits. Further, the proposed penalty provision could seemingly be easily circumvented by charging for services other 

than those specified in the bill, while also providing services that the bill is intended 

to cover. The criminal penalties contemplated by H.R. 1826 may provide some deterrent to persons who would take advantage of claimants for VA benefits, and VA supports in principle the protection of claimants from unscrupulous fee practices, but 


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we doubt that this bill would effectively address the entire scope of the problem. In 

addition, we defer to the Department of Justice (DoJ) on whether the new provision 

imposing criminal penalties would be enforceable as a practical matter, and whether 

DoJ would devote scarce resources to its enforcement. 

H.R. 1898 

H.R. 1898, the ‘‘Veterans 2nd Amendment Protection Act,’’ would provide that a 

person who is mentally incapacitated, deemed mentally incompetent, or unconscious 

for an extended period will not be considered adjudicated as a ‘‘mental defective’’ 

for purposes of the Brady Handgun Violence Prevention Act in the absence of an 

order or finding by a judge, magistrate, or other judicial authority that such person 

is a danger to himself, herself, or others. The bill would have the effect of excluding 

VA determinations of incompetency from the coverage of the Brady Handgun Violence Prevention Act. 

We understand and appreciate the objective of this legislation to protect the firearms rights of veterans determined by VA to be unable manage their own financial 

affairs. VA determinations of mental incompetency are based generally on whether 

a person because of injury or disease lacks the mental capacity to manage his or 

her own financial affairs. We believe adequate protections can be provided to these 

veterans under current statutory authority. Under the NICS Improvement Amendments Act of 2007 (NIAA), there are two ways that individuals subject to an incompetency determination by VA can have their firearms rights restored: First, a person 

who has been adjudicated by VA as unable to manage his or her own affairs can 

reopen the issue based on new evidence and have the determination reversed. When 

this occurs, VA is obligated to notify the Department of Justice to remove the individual’s name from the roster of those barred from possessing and purchasing firearms. Second, even if a person remains adjudicated incompetent by VA for purposes 

of handling his or her own finances, he or she is entitled to petition VA to have 

firearms rights restored on the basis that the individual poses no threat to public 

safety. Although VA has admittedly been slow in implementing this relief program, 

we now have relief procedures in place, and we are fully committed going forward 

to implement this program in a timely and effective manner in order to fully protect 

the rights of our beneficiaries. 

We also note that the reliance on an administrative incompetency determination 

as a basis for prohibiting an individual from possessing or obtaining firearms under 

Federal law is not unique to VA or veterans. Under the applicable Federal regulations implementing the Brady Handgun Violence Prevention Act, any person determined by a lawful authority to lack the mental capacity to manage his or her own 

affairs is subject to the same prohibition. By exempting certain VA mental health 

determinations that would otherwise prohibit a person from possessing or obtaining 

firearms under Federal law, the legislation would create a different standard for 

veterans and their survivors than that applicable to the rest of the population and 

could raise public safety issues. 

VA estimates that there would be no additional benefit or administrative costs associated with this bill if enacted. 

This concludes my statement, Mr. Chairman. I would be happy to entertain any 

questions you or the other Members of the Subcommittee may have. 

f 

Statement of Paralyzed Veterans of America 

Chairman Runyan, Ranking Member McNerney, and Members of the Subcommittee, Paralyzed Veterans of America (PVA), thanks you for the opportunity to 

submit a statement for the record regarding the proposed legislation being considered today. PVA appreciates the fact that this Subcommittee is addressing these important issues with the intention of improving benefits for veterans. We particularly 

support any focus placed on meeting the complex needs of the newest generation 

of veterans, even as we continue to improve services for those who have served in 

the past. 

H.R. 923 the ‘‘Veterans Pensions Protection Act of 2011’’ 

PVA supports H.R. 923, the ‘‘Veterans Pensions Protection Act of 2011.’’ This legislation would exempt reimbursements of expenses related to accident, theft, loss, 

or casualty loss from determinations of annual income with respect to pensions for 

veterans and surviving spouses and children of veterans. Our Nation’s veterans 

should not have to claim incidental insurance compensation as income that would 


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inadvertently reduce their pension payment. This is a common sense amendment to 

current law. 

H.R. 1025 

PVA supports H.R. 1025, legislation to amend title 38, United States Code, to recognize the service of the men and women that have served in the reserve components of the armed forces. This legislation will allow those that have served in a 

reserve component and qualified for retirement pay under title 10 to be recognized 

as a veteran under law. 

H.R. 1826 

PVA supports H.R. 1826, legislation that would allow criminal penalties for charging a fee to veterans for assisting with claim preparation and filing. Although this 

procedure is currently prohibited by Federal law, individuals and organizations continue to seek out veterans that are in need of assistance and proceed to assist for 

a fee. There have been no repercussions for these violations of the law. Every State 

government, most county governments, and most veterans’ service organizations 

have designated persons who are trained to help veterans file claims without charging a fee. This legislation will help eliminate individuals that are profiting from 

such activity. 

H.R. 1898 

H.R. 1898, the ‘‘Veterans 2nd Amendment Protection Act’’. PVA has no position 

on this legislation. 

H.R. 2349 

PVA cautiously supports H.R. 2349, legislation to amend title 38, United States 

Code, to direct the Secretary of Veterans Affairs to annually assess the skills of certain employees and managers of the Veterans Benefits Administration. PVA believes that assessments should be administered to all positions at all levels in a regional office, including the Rating Board Specialists and Decision Review Officers. 

This would determine if their knowledge is sufficient for performing the difficult 

tasks that these positions require. These results will indicate areas that need more 

attention for an individual or perhaps a basic review course in some areas. However, 

training should be provided to improve their knowledge and skills to a proficient 

level, not as a punishment for a low score. Moreover, testing only for selective positions or individuals would not foster good will in a system that currently presents 

a difficult environment to work in. 

Many programs within the VA have allocated training staff members as a goal 

in future plans. But, often because of workloads, shortage of staff and a fast paced 

environment of most departments in the VA, the proposed training becomes a low 

priority. Training of these important positions should have a high priority and be 

professionally conducted in time that is aside from the day-to-day work. 

Mr. Chairman and Members of the Subcommittee, PVA would like to once again 

thank you for the opportunity to provide our views on the proposed legislation. We 

look forward to working with you to improve benefits for veterans. 

f 

Statement of Reserve Officers Association of the United States, and 

Reserve Enlisted Association of the United States 

INTRODUCTION 

Mr. Chairman and Members of the Subcommittee, the Reserve Officers Association (ROA) and the Reserve Enlisted Association (REA) would like to thank the Subcommittee for the opportunity to testify. ROA and REA applaud the ongoing efforts 

by Congress to address issues facing veterans and serving members such as veteran 

status, mental health assessments, tax exemptions, and claims processing. 

Though contingency operations in Afghanistan and Iraq are expected to drawdown, currently there are still high levels of mobilizations and deployments, and 

many of these outstanding citizen soldiers, sailors, airmen, Marines, and Coast 

Guardsmen have put their civilian careers on hold while they serve their country 

in harm’s way. As we have learned, they share the same risks as their counterparts 

in the Active Components on the battlefield. Recently we passed the 800,000th mark 

for the number of Reserve and Guard servicemembers who have been activated 


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since post-9/11. More than 275,000 have been mobilized two or more times. The 

United States is creating a new generation of combat veterans that come from its 

Reserve Components (RC). It is important, therefore, that we don’t squander this 

valuable resource of experience, nor ignore the benefits that they are entitled to because of their selfless service to their country 

PROPOSED LEGISLATION 

H.R. 923, Veterans Pensions Protection Act of 2011, introduced by Rep. Hastings 

(D–Fl), better defines the types of casualty losses that could impact a veteran, or 

surviving family receiving a pension. ROA and REA support this clarification. 

Personal injury or property loss can have a devastating impact on any family. This 

just further aggravates the situation faced by veteran families that are living on a 

pension. Improving U.S. Code to address potential losses in advance prevents administrative complications in the future. 

H.R. 1025, introduced by Reps. Tim Walz (D–Minn.), Tom Latham (R–Iowa) and 

Jon Runyon (R–N.J), amends title 38 and would recognize the honorable service of 

National Guard and Reserve members who qualify for military retirement, but have 

never been activated for a long enough period to be Federally defined as a veteran. 

ROA and REA support such legislation including the bill passed by the 

House in the 111th Congress which failed to be considered in the Senate. 

Most Reserve Component members believe they are veterans after serving their 

country, especially for20 years or more. Unfortunately, this is not the case. They are 

not considered ‘‘Veterans’’ if they have not served the required number of uninterrupted days on Federal active duty (defined as active duty other than for training). 

While a commonly accepted definition is serving more than 180 days, not all service qualifies. To gain a veterans preference when applying for a Federal job, a former 

member of the armed forces has to have either earned a campaign badge, or served 

on active duty, either since September 11, 2001, or served between August 2, 1990 

and January 2, 1992, or after January 31, 1955 and before October 15, 1976, or have 

been in a war, earned a campaign or expeditionary ribbon, orserved between April 

28, 1952 and July 1, 1955, as defined by title 5 U.S.C. section 2108. And if medically 

discharged through no fault of their own during the first 180 day period, the servicemember is considered a veteran. 

Yet, as defined in law, Reserve Component members who have completed 20 or 

more years of service become military retirees and are eligible for all of the Active 

Duty military retiree benefits once reaching 60 years of age. Whereas Active Duty retirees are veterans, without the active service Reserve retirees are not. 

Those Reserve Component members who have been called to serve in Operation Enduring Freedom or Operation Iraqi Freedom will qualify as veterans. Many others 

who stand in front of and behind these men and women, preparing them and supporting them for and on overseas missions, are individuals who are also ready to deploy but because of assigned duties may never serve in an active capacity. Nevertheless they serve faithfully. 

Twenty or more years of service in the reserve forces and eligibility for reserve retired pay should be sufficient qualifying service for full Veteran status under the law. 

And as written, this legislation will not increase their benefits. 

This issue is a matter of honor for those who through no fault of their own were 

never activated, but who still served their Nation faithfully for 20 or more years. 

H.R. 1826, introduced by Reps. Gus Bilirakis (R–Fla.) and Walz reinstates criminal penalties for persons charging veterans unauthorized fees. ROA and REA support this reinstatement. 

Because of the backlog of benefit claims being processed by the Department of Veteran Affairs, veterans have been taken advantage by unscrupulous businesses claiming to be able to shortcut the process. Individuals or businesses who try to take unethical advantage of veterans should be penalized for their actions. 

H.R. 1898, Veterans 2nd Amendment Protection Act, introduced by Rep. 

Denny Rehberg (R–Mont.), which would create a new section 5511 to chapter 55 of 

title 38, provides protection to serving members who could be discharged for mental 

defectiveness from restrictions under section 922 of title 18 on the subject of gun 

ownership. ROA and REA support such legislation that would require a review by authorities outside the Departments of Defense or Veteran Affairs 

to corroborate mental incompetence for handling civilian matters. 

There is a risk of growing public distrust of sufferers of Post-Traumatic Stress and 

Traumatic Brain Injury as the media and certain clinicians label these ailments as 

disorders. For many veterans, the transition between military and civilian life is a 

critical juncture marked by acute feelings of flux and dislocation. It does not need 

to be further hampered by labels affixed at the time of discharge. 


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Anyone who fights in combat is changed by it, but few are beyond a cure. This 

Nation can ill afford to stereotype current veterans the way they did the veterans 

from Vietnam as being dysfunctional. Legislation like Rep. Rehberg’s will provide another protection for the veteran. 

Additionally, the Army routinely dismissed hundreds of soldiers at the height of 

war from the Afghanistan and Iraq theaters for having personality disorders when 

they more likely suffering from the traumatic stresses of war. Defined as a ‘‘deeply 

ingrained maladaptive pattern of behavior,’’ a personality disorder was considered 

a ‘‘pre-existing condition’’ relieving the military from paying combat-related disability 

pay, and providing adequate health care treatment. Later, the Army shifted discharges from ‘‘personality disorder’’ to ‘‘adjustment disorder’’ dismissing hundreds 

more. The symptoms can be the same as for post-traumatic stress: flashbacks, nightmares, anger, sleeplessness, irritability and avoidance. 

The military (or the Department of Veterans Affairs) should not be the determining 

agency on a veteran’s mental capacity. Rep. Rehberg’s legislation provides veterans 

protection from being mislabeled. 

H.R. 2349, the Veterans’ Benefits Training Improvement Act of 2011 by Rep. Jon 

Runyon (R–N.J.) helps ensure standards by assessing annually those Department 

of Veteran Affairs (VA) employees who process claims and by making sure these employees have core competencies. This assessment will help them retain those competencies in an occupation where new perspectives on disabilities arise bringing 

about constant change. Congressional oversight will remain in order to ensure that 

the VA meets expectations and provides the needed tools to keep the processers current. 

With a goal of quality and efficiency in processing VA claims, ROA and 

REA can support this legislation. 

Conclusion 

ROA and REA appreciate the opportunity to submit testimony. ROA and REA 

look forward to working with the Subcommittee on Disability Assistance and Memorial Affairs and the House Veterans’ Affairs Committee, where we can present solutions to these and other issues, and offer our support, and hope in the future for 

an opportunity to discuss these issues in person. 


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MATERIAL SUBMITTED FOR THE RECORD 

U.S. Department of Veterans Affairs 

Washington, DC. 

September 6, 2011 

The Honorable Jon Runyan 

Chairman 

Subcommittee on Disability Assistance and Memorial Affairs 

Committee on Veterans Affairs 

U.S. House of Representatives 

Washington, DC 20515 

Dear Mr. Chairman: 

This letter provides the Department of Veterans Affairs’ (VA) views on a revised 

version of H.R. 2349, the ‘‘Veterans’ Benefits Training Improvement Act of 2011’’ 

you provided in your letter dated July 26, 2011. This bill would amend 38 U.S.C. 

§ 7732A to establish an annual skills assessment of employees and managers responsible for processing claims for compensation and pension, and would establish 

an individualized training plan related to such skills for each employee and manager responsible for processing such claims. 

For the reasons set forth in the enclosed summary, VA does not support the proposed amendments. The development and implementation of these assessments 

would be redundant with the robust training and skills assessment program that 

the Veterans Benefits Administration already has which sets performance requirements for each employee, and manages such performance. The assessments and the 

remediation required along with the development of individualized training plans 

would be costly, would remove key personnel from the act of claims processing, and 

produce no benefit over current procedures. 

Thank you for the opportunity to provide our views and cost estimates on the revised version of H.R. 2349. 

Sincerely, 

Eric K. Shinseki 

Secretary 

Enclosure 

Views and Costs on H.R. 2349, as revised 

Section 7732A of title 38 U.S. Code. currently requires employees and managers 

of the Veterans Benefits Administration (VBA) who are responsible for processing 

claims for compensation and pension benefits to undergo a certification examination. 

H.R. 2349 would amend 38 U.S.C. § 7732A to establish an annual skills assessment 

of those same employees and managers and would require establishment of an individualized training plan related to such skills for each employee and manager responsible for processing such claims. Additionally, the bill would require that any 

employee or manager that receives a less than satisfactory result on the initial examination be given additional training, and require such employees or managers to 

re-take the examination up to two times. H.R. 2349 requires that the Secretary take 

appropriate personnel action with respect to any employee or manager who does not 

receive a satisfactory result on the examination. Lastly, the bill requires the Secretary report to Congress the results of the assessments, remediation provided, any 

personnel actions taken, and any changes made to the training program. 

VBA already has a robust training and skills assessment program that sets performance requirements for each employee, and manages such performance. VBA’s 

National Training Curriculum consists of approximately 85 hours of annual mandatory training for each employee. This includes three separate curricula for entry-, 

intermediate-, and journey-level employees. Every curriculum is kept current 

through an annual topic reassessment. Training on emerging topics and procedural 

and policy changes are added as needed throughout the year. Each employee must 

record completed courses within one of the curricula in the Talent Management System (TMS), and the Compensation Service training staff verifies completion of the 

mandatory training requirements at each regional office by reviewing and analyzing 

learning history reports from TMS. 

VBA also currently maintains a high degree of accountability through performance appraisal ratings. Performance requirements must be stated in a performance 


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plan tailored to each employee’s position and work assignments. Nationwide performance standards are in place for Veterans Service Representatives (VSRs), Rating VSRs, and Decision Review Officers. These national performance plans standardize the evaluation process for these claims processing positions. In the event that 

an employee does not meet acceptable performance standards, remedial training 

courses are provided along with biweekly mentoring by their supervisor. If after at 

least 90 days, the employee’s performance is still deemed unacceptable, the employee will be reassigned, reduced to a lower grade, or removed. 

There has been significant attention given to VA’s quality assurance and training 

programs in recent years. In 2009, the Center for Naval Analyses reviewed VA’s 

training efforts for the Veterans’ Disability Benefits Commission and was highly 

complimentary of VA’s training efforts in testimony before the Commission. Also, in 

response to section 224 of the Veterans Benefits Improvement Act of 2007 (Public 

Law 110–389), VBA tasked the Institute for Defense Analyses with an independent 

assessment of the quality assurance program. The findings of their 3-year review 

are due to Congress on October 10, 2011. 

The proposed assessments are unnecessary in light of existing VBA training, assessment and performance evaluation programs. Moreover, the bill would potentially remove every claims processor and manager from their job for at least one full 

day every year for these additional preparation and testing requirements. If the employee does not pass the proposed assessment, additional time would be spent in the 

remediation process and away from claims processing. The bill would also require 

VBA to establish an individualized training plan for these employees. Time currently spent by supervisors on workload management would instead be spent ensuring that employees completed this additional preparation, testing, and possible remediation training as well as overseeing individualized training plans. The loss of 

one full day would result in a loss in production of, at a minimum, 13,500 claims 

annually. 

Section 2(c)(2)(B) would amend 38 U.S.C. § 7322A to require the Secretary to take 

appropriate personnel action in the case of an employee or manager who, after being 

given two opportunities for remediation, does not receive a satisfactory result on an 

assessment. This amendment mandates VA to take a personnel action, intruding on 

VBA’s responsibility and authority to take such action when it deems appropriate. 

Such intrusion undermines VBA’s managerial discretion. In addition, there would 

be labor relations implications with implementation of the bill. Accordingly, obtaining the views of the union as an important stakeholder would be appropriate and 

their input useful. 

The proposed amendment requires the Secretary to report to Congress the results 

of the assessments, remediation provided, any personnel actions taken, and any 

changes made to the training program. 38 U.S.C. § 7734 already provides that the 

Secretary report to Congress on the quality assurance activities carried out in 38 

U.S.C. §§ 7731 et seq. Accordingly, it would be more appropriate to amend 38 U.S.C. 

§ 7734 to add the additional reporting requirements proposed in H.R. 2349. 

VA estimates that costs associated with the legislation would be approximately 

$4.8 million during the first year and over $22.2 million over 5 years. 

FY 

Additional 

Contract Cost 

($000s) 

Cost of 

Production Loss to 

Support Additional 

Assessments ($000s) 

Cost of Loss in 

Production due to 

Testing ($000s) Total Cost ($000s) 

2012 $ 1,000 $ 131 $ 3,700 $ 4,831 

2013 $ 500 $ 46 $ 3,700 $ 4,246 

2014 $ 500 $ 46 $ 3,800 $ 4,346 

2015 $ 500 $ 46 $ 3,800 $ 4,346 

2016 $ 500 $ 46 $ 3,900 $ 4,446 

Total $ 3,000 $ 314 $ 18,900 $ 22,214 

If the bill were enacted, VBA would work with a contractor to develop, assess, and 

maintain assessments for at least eight categories of employees. Because six current 

skills assessments would be incorporated into the proposed assessments, resources 

devoted to the current skills assessment contract would be devoted to the proposed 

assessments. The chart above reflects costs over and above the current contracting 

cost to conduct skills assessments for all employees. 


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An additional 60 field subject matter experts (over and above the field subject 

matter experts supporting the current skills assessment program) would be needed 

for 1-week sessions to help develop the proposed assessments during FY 2012. In 

subsequent years, an additional 25 subject matter experts would be needed for 1- 

week sessions each year to evaluate and maintain the proposed assessments. Each 

subject matter expert would participate in workshops to draft questions, assess and 

finalize tests, score tests, and design the test process. VBA would need to hire full 

time employees (FTE) to make up for the claims that are not completed by subject 

matter experts while they are providing contract support. 

To make up for claims not completed due to a day of lost production during the 

mandatory annual assessment, VA would need to hire additional FTE. The chart 

above reflects costs associated with hiring these FTE to complete claims that would 

be completed during the proposed mandatory assessment. 

f 

U.S. Department of Veterans Affairs 

Veterans Benefits Administration 

Washington, DC. 

November 22, 2010 

Director (00/21) 

Fast Letter 10–51 

All VA Regional Offices and Centers 

SUBJ: Processing Requests for Relief from the Reporting Requirements of the 

National Instant Criminal Background Check System (NICS) 

This letter provides new information on the National Instant Criminal Background Check System (NICS) relief program and procedures for processing relief requests. 

Within 30 days of date of this letter, the Compensation and Pension (C&P) Service will return all pending requests for relief in its possession, with their associated 

claim folders and principle guardianship folders (PGFs), to regional offices (ROs) 

and centers for action in accordance with this letter. Please conclude all actions 

within 90 days of receipt of the claims folder. 

Background 

The Brady Handgun Violence Prevention Act of 1993, Public Law 103–159 (The 

Brady Act), prohibits the sale of firearms to certain people. The NICS Improvement 

Amendments Act (NIAA) of 2007 sets new requirements for Federal and state agencies, and contains an amendment to the Brady Act that obligates VA to allow beneficiaries the opportunity to request relief from the reporting requirements imposed 

by the Brady Act. VA is also obligated to provide beneficiaries both written and oral 

notification of the firearms prohibitions, penalties for violating them, and information regarding the availability of the relief program. 

NICS Relief Program 

The NIAA places the responsibility for administering the relief program on the 

agency that provided the information to NICS. The primary focus regarding relief 

provisions outlined in this letter is public safety. Further, relief from the reporting 

requirements is not a benefit under Title 38 and as such, principles common to the 

VA adjudication process, such as benefit of the doubt and duty to assist (as demonstrated in ordering examinations or securing private medical records) do not apply 

to this program. The burden of proof for these relief requests resides with the claimant, and failure to meet that burden is sufficient to deny the request. Decisions that 

deny relief are not subject to review by the Board of Veterans’ Appeals, but VA denials of requests for relief under the NIAA are subject to review in Federal district 

court. Accordingly, it is important that all denials contain a detailed explanation of 

the basis for denial. 

Handling Requests for Relief 

Requests for relief from the Brady Act reporting requirements must be clear and 

explicit. Do not infer or interpret a request for relief as a claim for reconsideration 

of incompetence or a claim of competency as a request for relief. 

Development 

If the request for relief is received following the final rating of incompetency, establish end product (EP) 290 using the ‘‘NICS Relief Request’’ claim label. If the evidence of record is sufficient to grant relief according to the criteria outlined below, 


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follow the procedures under Administrative Decision. If the evidence is insufficient 

to grant relief, send the attached development letter (Enclosure 1). Allow the beneficiary 30 days to respond to the letter. 

The beneficiary may submit a request for relief prior to the final incompetency 

rating. If the request for relief is received prior to the final rating of incompetency, 

send the development letter (Enclosure 1), but do not render a decision on the request for relief until the rating of incompetency is final and the 30-day development 

response time has expired. Then follow the procedures under the Administrative Decision section below. 

If the beneficiary submits a claim for reconsideration of competency in conjunction 

with the request for relief, establish EP 020. After any appropriate development, 

refer the claim to the rating team. If the rating veterans service representative confirms and continues incompetency, do not address the issue of relief in the rating 

decision. Instead, follow the procedures under Administrative Decision outlined 

below. 

Note: We will program all NICS development and decision letters in PCGL as 

soon as possible. In the interim, copy and paste the text of the enclosures into a 

free text document. 

Deciding Relief 

In deciding requests for relief, decision makers must consider the beneficiary’s 

record and reputation, as well as the beneficiary’s mental and physical status. To 

grant relief, the record must show affirmatively, substantially, and specifically that 

the beneficiary is not likely to act in a manner dangerous to public safety, and that 

granting relief will not be contrary to the public interest. 

In making determinations, consider not just the beneficiary’s desire to own firearms and/or ammunition, but the safety of himself, his family, and the community. 

As VA’s determinations on requests for relief have the potential to affect public safety, grant relief on the basis of clear and convincing evidence. 

In determining whether to grant relief, relevant records may include: 

• A statement from the primary mental health physician assessing the beneficiary’s mental health status over the last 5 years. 

• Medical information addressing the extent of mental health symptoms and 

whether or not the beneficiary is likely to act in a manner dangerous to himself/ 

herself or to the public. 

• Information documenting that a court, board, or commission that originally determined incompetence has restored competency status or otherwise determined 

that the beneficiary has been rehabilitated through any procedure available 

under the law. 

• Statements or records from law enforcement officials, such as the Federal Bureau of Investigation (FBI), the Bureau of Alcohol, Tobacco, and Firearms 

(ATF), or the Attorney General, showing that the granting of relief would not 

be contrary to the public interest. 

When determining relief requests, consider if any of the following unfavorable factors are manifest over the past 5 years: 

• The presence of any mental disability that has been evaluated at more than 10- 

percent disabling. (If there is no rating of record, consider whether evidence indicates that any current mental disability causes no more than mild or transient symptoms observable only during periods of significant stress, or whether 

symptoms of mental disability are completely alleviated through the use of continuous medication (38 CFR 4.130). Also, consider the presence of any personality disorder when determining relief requests. 

• Evidence of recurring substance abuse or any substance abuse within the last 

year. 

• Local, state, or Federal convictions for felonies and/or violent offenses (including, but not limited to, menacing, stalking, assault, battery, burglary, robbery, 

rape, murder, and attempts thereof). 

• Demonstration of overtly aggressive or hostile behavior and/or demeanor. 

• Presence of suicidal or homicidal ideations. 

Administrative Decision 

The RO or center will handle all requests for relief by preparing an administrative 

decision (see M21–1MR, Part III, Subpart v, Chapter 1, Section A, Topic 2). The RO 

Director must approve all administrative decisions after concurrence by the Veterans Service or Pension Management Center Manager, or designee. 


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Inform the beneficiary of the determination by sending the NICS relief grant or 

denial letter (Enclosure 2 or 3). If relief is granted, notify the NICS Manager within 

three days at VAVBAWAS/CO/NICS under the subject ‘‘NICS relief grant.’’ The notification must include the beneficiary’s name, claim number, Social Security number 

(if different than claim number), date of birth, contact information (including address and telephone number), and the date of the grant of relief. Upon granting relief, the C&P Service will notify the FBI, which manages the NICS database for the 

Department of Justice, to remove the beneficiary from the NICS database. The FBI 

will remove the beneficiary’s name from the database within approximately 2 

months after notification by the NICS Manager. 

If a beneficiary who was formerly found incompetent is found competent, the request for relief becomes moot. In the final competency rating, include the following 

statement under Reasons for Decision for the competency issue: 

‘‘We received your request for relief from the Department of Justice (DoJ) 

reporting requirements contained in the Brady Handgun Violence Prevention Act. We have determined you are competent for VA purposes, so it is 

not necessary to render a decision on that request. VA will inform DoJ of 

your changed status.’’ 

File all documents exclusive to this relief decision on the right side of the claims 

folder. 

Questions 

Questions concerning information contained in this letter should be e-mailed to 

VAVBAWAS/CO/NICS. 

Rescission: At the earliest opportunity, we will incorporate into the M21–1MR 

the provisions of oral and written notice from pages 4 and 5 of Fast Letter (FL) 09– 

08, National Instant Criminal Background Check System (NICS) Improvement 

Amendments Act of 2007, which is otherwise rescinded. 

Thomas J. Murphy 

Director 

Compensation and Pension Service 

Enclosures 

Enclosure 1—NICS Relief Development Letter 

XXXXXXXXXXX In reply, refer to: 

XXXXXXXXXXXXX File Number: XXXXXXX 

XXXXXXXXXXXX 

IMPORTANT—reply needed 

Dear Mr./Ms.: 

We received your request for relief from the Department of Justice reporting requirements contained in 18 U.S.C. § 922(d)(4) and (g)(4). VA must report to the National Instant Criminal Background Check System (NICS) individuals whom VA determines to be unable to contract or manage their own affairs. 

Pursuant to 18 U.S.C. § 925(c) and § 101(c)(2)(A) of the NICS Improvements 

Amendment Act of 2007, Public Law 110–180, VA is obligated to decide whether you 

are eligible to receive relief from the reporting requirements of the Brady Handgun 

Violence Prevention Act. This letter contains information about what we will do 

with your request and what you can do to help us decide it. 

We may grant relief if clear and convincing evidence shows the circumstances regarding your disability, and your record and reputation are such, that you are not 

likely to act in a manner dangerous to yourself or others, and the granting of relief 

is not contrary to public safety and/or the public interest. 

What Can You Do? 

To support your claim for relief, you may submit such evidence as: 

• A statement from your primary mental health physician assessing your mental 

health status over the last 5 years. 

• Medical information addressing the extent of your mental health symptoms and 

whether or not you are likely to act in a manner dangerous to yourself or to 

public. 


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• Information documenting that a court, board or commission that originally determined incompetence has restored your competency status or otherwise determined that you have been rehabilitated through any procedure available under 

the law. 

• Statements or records from law enforcement officials, such as the Federal Bureau of Investigation (FBI), the Bureau of Alcohol, Tobacco, and Firearms 

(ATF), or the Attorney General, which show that the granting of relief would 

not be contrary to the public interest. 

Please put your VA file number on the first page of every document you 

send us. 

Where Should You Send Your Evidence? 

Please send all documents to this address: (include RO address) 

How Soon Should You Send What We Need? 

We strongly encourage you to send any information or evidence as soon as you 

can. If we do not hear from you within 30 days, we will make a decision on your 

request based on the evidence of record. 

How Can You Contact Us? 

Please give us your VA file number, XXXXXXXXXX, when you do contact us. 

• Send written correspondence to the address above. 

• Send us an inquiry using the Internet at https://iris.va.gov. 

• Call us at 1–800–827–1000. If you use a Telecommunications 

Device for the Deaf (TDD), the number is 1–800–829–4833. 

We look forward to resolving your request in a timely and fair manner. 

Sincerely yours, 

Veterans Service Center Manager 

Enclosure 2—NICS Relief Grant Letter 

XXXXXXXXXXX In reply, refer to: 

XXXXXXXXXXXXX File Number: XXXXXXX 

XXXXXXXXXXXX 

Dear Mr./Ms.: 

We received your request for relief under the National Instant Criminal Background Check System (NICS) Improvement Amendments Act (NIAA) of 2007 (Public 

Law 110–180). 

What We Decided 

We decided that you are eligible for relief from the Department of Justice reporting requirements imposed by the Brady Handgun Violence Protection Act. 

We reviewed the following evidence in considering your claim: 

• (enter evidence) 

Our review of this evidence reveals that your disability, record, and reputation are 

such that you are not likely to act in a manner dangerous to yourself or others. Further, the granting of relief is not contrary to public safety or the public interest. 

Please allow the Department of Justice up to 8 weeks to update its records in accordance with our decision. 


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If You Have Questions or Need Assistance 

You may find more information about the Relief from Disabilities program in 18 

U.S.C. § 925(c). If you have any questions regarding this decision, you may contact 

us by letter, Internet, or telephone. In all cases, be sure to refer to your VA file 

number, XXXXXXXX. 

To Contact VA by Here is what to do. 

Mail Send inquiries to the address at the top of this letter 

Internet Send an inquiry via VA’s Web site at https://iris.va.gov. 

Telephone Call 1–800–827–1000. If you use a Telecommunications 

Device for the Deaf (TDD), the number is 1–800–829–4833. 

We sent a copy of this letter to your representative, XXXXXX, whom you can also 

contact if you have questions or need assistance. 

Sincerely yours, 

Veterans Service Center Manager 

cc: 

Enclosure 3—NICS Relief Denial Letter 

XXXXXXXXXXX In reply, refer to: 

XXXXXXXXXXXXX File Number: XXXXXXX 

XXXXXXXXXXXX 

Dear Mr./Ms.: 

We received your request for relief under the National Instant Criminal Background Check System (NICS) Improvement Amendments Act (NIAA) of 2007 (Public 

Law 110–180). 

What We Decided 

We determined you are not eligible for relief from the Department of Justice reporting requirements imposed by the Brady Handgun Violence Protection Act. 

We considered the following evidence: 

• (enter evidence) 

Based on this review, we are unable to conclude through clear and convincing evidence regarding your disability, record, and reputation that 

• you will not likely act in a manner dangerous to yourself or others, and 

• the granting of relief would not be contrary to the public interest. 

Your Right for Review 

NIAA relief requests are not matters which fall within the scope of title 38 of the 

United States Code and denial of such requests are not subject to review by the 

Board of Veterans’ Appeals. However, denials of requests for relief under the NIAA 

are subject to review in Federal district court. See 18 U.S.C. § 925(c) for more information concerning appellate rights. 


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If You Have Questions or Need Assistance 

You may find more information about the Relief from Disabilities program in 18 

U.S.C. § 925(c). If you have any questions regarding this decision, you may contact 

us by letter, Internet, or telephone. In all cases, be sure to refer to your VA file 

number, XXXXXXXX. 

To Contact VA by Here is what to do. 

Mail Send inquiries to the address at the top of this letter 

Internet Send an inquiry via VA’s Web site at https://iris.va.gov. 

Telephone Call 1–800–827–1000. If you use a Telecommunications 

Device for the Deaf (TDD), the number is 1–800–829–4833. 

We sent a copy of this letter to your representative, XXXXXX, whom you can also 

contact if you have questions or need assistance. 

Sincerely yours, 

Veterans Service Center Manager 

cc: 

Æ 


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