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[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

 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

                  U.S. GOVERNMENT PRINTING OFFICE
68-458                    WASHINGTON : 2011
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                     COMMITTEE ON VETERANS' AFFAIRS

                     JEFF MILLER, Florida, Chairman

CLIFF STEARNS, Florida               BOB FILNER, California, Ranking
DOUG LAMBORN, Colorado               CORRINE BROWN, Florida
GUS M. BILIRAKIS, Florida            SILVESTRE REYES, Texas
DAVID P. ROE, Tennessee              MICHAEL H. MICHAUD, Maine
MARLIN A. STUTZMAN, Indiana          LINDA T. SANCHEZ, California
BILL FLORES, Texas                   BRUCE L. BRALEY, Iowa
BILL JOHNSON, Ohio                   JERRY McNERNEY, California
JEFF DENHAM, California              JOE DONNELLY, Indiana
JON RUNYAN, New Jersey               TIMOTHY J. WALZ, Minnesota
DAN BENISHEK, Michigan               JOHN BARROW, Georgia
ANN MARIE BUERKLE, New York          RUSS CARNAHAN, Missouri
TIM HUELSKAMP, Kansas
Vacancy
Vacancy

            Helen W. Tolar, Staff Director and Chief Counsel

                                 ______

       SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS

                    JON RUNYAN, New Jersey, Chairman

DOUG LAMBORN, Colorado               JERRY McNERNEY, California, 
ANN MARIE BUERKLE, New York          Ranking
MARLIN A. STUTZMAN, Indiana          JOHN BARROW, Georgia
Vacancy                              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.

                            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
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

 
 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.
    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.
    I support the bill, but I do understand there are 
reservations concerning moving the envelope on what type of 
service accords veteran 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, 
thank you all as well as the rest of the Members of this 
Subcommittee, 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 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 this is about recognizing the men and women of the 
Reserve components, 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 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, 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; 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.
    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.
    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.]
    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 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.

                     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.
    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 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.
    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 appropriate 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?
    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 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.
    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.
    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-by-case 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 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 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.
    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, 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 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.
    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.
          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 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 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?
    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.
    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.]

                            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.

                                 
 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 non-service-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 hard-working 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.
                                 
             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.
    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.

                                 
            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 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.

                                 
        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.
    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.
    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.
                                 
                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.
    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. 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 unified 
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.
    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.

                                 
         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.''

    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.
                                 
   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.

                               __________
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 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 VA Office of Inspector General (OIG) 
identified numerous problems with the training 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.

                                 
     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 Sec. 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. Sec. 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 
Sec. Sec. 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.
                               H.R. 1898
    This bill would add 38 U.S.C. Sec. 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. Sec. 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 Sec. 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. Sec. 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. Sec. 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 Sec. 7732B be combined with those of 
Sec. 7732A to create an amended Sec. 7732A as follows:
   Sec. 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.

          ``(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.

                                 
 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. Sec. 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 needs-based 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 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. Sec. 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. Sec. 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. Sec. 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. Sec. 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 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.

                                 
               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 
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.

                                 
  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 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.
    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.
                   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. Sec. 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. 
Sec. 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 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. Sec. 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. 
Sec. 7734 already provides that the Secretary report to Congress on the 
quality assurance activities carried out in 38 U.S.C. Sec. Sec. 7731 et 
seq. Accordingly, it would be more appropriate to amend 38 U.S.C. 
Sec. 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.

----------------------------------------------------------------------------------------------------------------
                                                      Cost of Production
                                      Additional        Loss to Support     Cost of Loss in
               FY                    Contract Cost        Additional       Production due to  Total Cost ($000s)
                                        ($000s)           Assessments       Testing ($000s)
                                                            ($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.
    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.

                                 

                                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, 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.

    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. Sec. 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. Sec. 925(c) and Sec. 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.
      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.
If You Have Questions or Need Assistance
    You may find more information about the Relief from Disabilities 
program in 18 U.S.C. Sec. 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. Sec. 925(c) for more information 
concerning appellate rights.
If You Have Questions or Need Assistance
    You may find more information about the Relief from Disabilities 
program in 18 U.S.C. Sec. 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:

                                 
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