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98–631 2016

LEGISLATIVE HEARING ON H.R. 675, H.R. 677, 

H.R. 732, H.R. 800, H.R. 1067, H.R. 1331, H.R. 

1379, H.R. 1414, H.R. 1569, AND H.R. 1607 

HEARING 

BEFORE THE

SUBCOMMITTEE ON DISABILITY 

ASSISTANCE AND MEMORIAL AFFAIRS 

OF THE

COMMITTEE ON VETERANS’ AFFAIRS 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

TUESDAY, APRIL 14, 2015 

Serial No. 114–14 

Printed for the use of the Committee on Veterans’ Affairs 

( 

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


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COMMITTEE ON VETERANS’ AFFAIRS 

JEFF MILLER, Florida, Chairman 

DOUG LAMBORN, Colorado 

GUS M. BILIRAKIS, Florida, Vice-Chairman 

DAVID P. ROE, Tennessee 

DAN BENISHEK, Michigan 

TIM HUELSKAMP, Kansas 

MIKE COFFMAN, Colorado 

BRAD R. WENSTRUP, Ohio 

JACKIE WALORSKI, Indiana 

RALPH ABRAHAM, Louisiana 

LEE ZELDIN, New York 

RYAN COSTELLO, Pennsylvania 

AMATA COLEMAN RADEWAGEN, American 

Samoa 

MIKE BOST, Illinois 

CORRINE BROWN, Florida, Ranking 

Minority Member 

MARK TAKANO, California 

JULIA BROWNLEY, California 

DINA TITUS, Nevada 

RAUL RUIZ, California 

ANN M. KUSTER, New Hampshire 

BETO O’ROURKE, Texas 

KATHLEEN RICE, New York 

TIMOTHY J. WALZ, Minnesota 

JERRY MCNERNEY, California 

JON TOWERS, Staff Director 

DON PHILLIPS, Democratic Staff Director 

SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL 

AFFAIRS 

RALPH ABRAHAM, Louisiana, Chairman 

DOUG LAMBORN, Colorado 

LEE ZELDIN, New York 

RYAN COSTELLO, Pennsylvania 

MIKE BOST, Illinois 

DINA TITUS, Nevada, Ranking Member 

JULIA BROWNLEY, California 

RAUL RUIZ, California 

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

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

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

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

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

is further refined. 


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C O N T E N T S 

Tuesday, April 14, 2015 

Page 

Legislative Hearing on H.R. 675, H.R. 677, H.R. 732, H.R. 800, H.R. 1067, 

H.R. 1331, H.R. 1379, H.R. 1414, H.R. 1569, and H.R. 1607 ........................... 1 

OPENING STATEMENTS 

Hon. Ralph Abraham, Chairman ........................................................................... 1 

Hon. Beto O’Rourke Ranking Member ................................................................... 2 

Hon. Jeff Miller, Chairman, Full Committee 

Prepared Statement ......................................................................................... 28 

Hon. Raul Ruiz, MD 

Prepared Statement ......................................................................................... 29 

WITNESSES 

Hon. Chellie Pingree, U.S. House of Representatives .......................................... 2 

Prepared Statement ......................................................................................... 30 

Mr. David R. McLenachen, Acting Deputy Under Secretary for Disability 

Assistance VBA, U.S. Department of Veterans Affairs .................................... 8 

Prepared Statement ......................................................................................... 32 

Accompanied by: 

Ms. Laura H. Eskenazi, Executive-in-Charge and Vice Chairman, 

Board Of Veterans’ Appeals, U.S. Department of Veterans Affairs 

And 

Mr. David J. Barrans, Assistant General Counsel, Office of General 

Counsel, U.S. Department of Veterans Affairs 

Mr. Zachary Hearn, Deputy Director for Claims, Veterans Affairs and Rehabilitation Division, The American Legion .......................................................... 15 

Prepared Statement ......................................................................................... 70 

Mr. Blake C. Ortner, Deputy Government Relations Director Paralyzed Veterans of America .................................................................................................. 17 

Prepared Statement ......................................................................................... 80 

Mr. Paul R. Varela, Assistant National Legislative Director, DAV .................... 19 

Prepared Statement ......................................................................................... 90 

Mr. Ronald B. Abrams, Joint Executive Director, National Veterans Legal 

Services Program ................................................................................................. 20 

Prepared Statement ......................................................................................... 104 

Mr. Kenneth M. Carpenter, Founding Member, National Organization of Veterans’ Advocates ................................................................................................... 21 

Prepared Statement ......................................................................................... 111 

FOR THE RECORD 

Veterans of Foreign Wars ....................................................................................... 117 

Aleks Morosky, Deputy Director, Veterans of Foreign Wars ............................... 125 


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LEGISLATIVE HEARING ON H.R. 675, H.R. 677, 

H.R. 732, H.R. 800, H.R. 1067, H.R. 1331, H.R. 

1379, H.R. 1414, H.R. 1569, AND H.R. 1607 

Tuesday, April 14, 2015 

U.S. HOUSE OF REPRESENTATIVES, 

COMMITTEE ON VETERANS’ AFFAIRS, 

SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL

AFFAIRS, 

Washington, D.C. 

The subcommittee met, pursuant to notice, at 10:34 a.m., in 

Room 334, Cannon House Office Building, Hon. Ralph Abraham 

[chairman of the subcommittee] presiding. 

Present: Representatives Abraham, Lamborn, Zeldin, Costello, 

Titus, Brownley, Ruiz, Miller, and O’Rourke. 

OPENING STATEMENT OF CHAIRMAN RALPH ABRAHAM 

Mr. ABRAHAM. Good morning. Thank you for being here. This legislative hearing of the Subcommittee on Disability Assistance and 

Memorial Affairs will now come to order. 

We are going to ask for unanimous consent for Mr. O’Rourke, if 

you will be the ranking member. 

Hearing no objections, today we are here to have a legislative 

hearing on ten pieces of legislation. In the interest of time, I will 

forego a lengthy opening statement and just briefly summarize the 

two bills on the agenda which I am proud to have introduced. The 

first is H.R. 675, Veterans’ Compensation Cost-of-Living Adjustment Act of 2015. This bill provides a cost-of-living adjustment increase to veterans disability compensation rates and other benefits. 

The amount of the increase will be determined by the Consumer 

Price Index, which also controls the cost-of-living adjustment for 

Social Security beneficiaries. As many of us here today know, any 

cost-of-living increase is beneficial to the veterans and their families who depend on the VA benefits to make ends meet. 

And although I am very supportive of this annual legislation, I 

would like to state that it is unfortunate that we have to pass a 

bill every year. I, therefore, have also introduced H.R. 677, the 

American Heroes COLA Act, which would authorize an annual 

COLA, without requiring congressional action. This would ensure 

that veterans COLA is not tied to political action or inaction in 

Washington. 

At this time, I would like to thank the committee members who 

are not on the subcommittee, who are here and have expressed interest in today’s hearing. I would like to ask unanimous consent 


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that Representative O’Rourke and Representative Walz be allowed 

to participate in today’s hearing. Hearing no objection, so ordered. 

I appreciate everybody’s attendance here at this hearing and now 

I will call on our ranking member, Mr. O’Rourke for any opening 

statement. 

OPENING STATEMENT OF RANKING MEMBER BETO O’ROURKE 

Mr. O’ROURKE. Mr. Chair, I will waive any opening statement. 

Thank you. 

Mr. ABRAHAM. Okay. Thank you. 

Are there any other members who would like to make an opening 

statement? Chairman Miller? Mr. Zeldin? Mr. Costello? Okay. 

We appreciate you joining us, Mr. Chair. 

We would like to welcome to our witness table at this time, Ms. 

Chellie Pingree, who is the sponsor of H.R. 1607, the Ruth Moore 

Act of 2015. 

Ms. Pingree, you are now recognized for five minutes. 

STATEMENT OF HON. CHELLIE PINGREE 

Ms. PINGREE. Thank you very much, Chairman Abraham and 

Ranking Member O’Rourke. I appreciate you having me here today 

and for considering the Ruth Moore Act in this morning’s legislative hearing. 

I want to talk just a little bit about the bill and why we still 

think it desperately needs to become law. It has been said that the 

greatest casualty is being forgotten. I can tell you that the hundreds of survivors who have called my office since I first introduced 

this legislation in the 113th Congress have felt forgotten by the 

military system they so proudly served. They struggle trying to 

meet an unfair standard of proof, suffer through years of denials 

and appeals in a process that re-traumatizes them. It is a system 

that is broken and I can tell you from the countless stories that I 

have heard, that it hasn’t been fixed. 

Ruth Moore, who this bill is named for, is a U.S. Navy veteran 

from Maine who was raped twice during her military service. When 

she reported it, she was discharged and labeled as having a personality disorder. She has spent over 23 years fighting the VA to get 

disability benefits and she battled homelessness and PTSD during 

that time. 

Quite simply, this act ensures that the VA treat our veterans 

whose PTSD is caused by sexual assault with the same standards 

and burden of proof that extends to veterans whose PTSD is caused 

by combat and other particularized claims. We know that fewer 

people are being assaulted and more are coming forward and that 

is progress, but still, 19,000 military personnel being sexually assaulted or sexually harassed annually is hardly a cause for celebration. 

I want to talk a little bit about approval rates, and I don’t mean 

our political approval rates that we evaluate every day; I want to 

talk about the rates at which claims for the VA benefits are being 

accepted. The GAO did find that the overall approval rate for a 

PTSD resulting from sexual assault is increasing, but it is still 

lower than the approval rating for the PTSD claim ratings for 

other factors. And what is most concerning to me is that despite 


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continued training, the subjective standards used to verify victims’ 

sexual assault meant approval ratings varied wildly depending on 

where the veteran submitted their claim. In some offices, as few as 

14 percent of claims were approved, while others approved 88 percent. 

In the GAO report, the VA states that under the current regulation, two adjudicators can interpret a marker in opposite ways and 

both will be correct. It is simply not acceptable that a veteran faces 

the roll of the dice of where they live and where their claim is reviewed, nor is it acceptable that 62 percent of the respondents in 

a recent survey stated that they face retaliation for reporting. This, 

as well as evidence that 40 percent of assaults were perpetrated by 

a superior within the veteran’s chain of command suggests to me 

that we cannot train our way out of this problem. 

After a court ruling in 2002, the VA changed its policy to allow 

veterans a wider range of evidence called ‘‘secondary markers’’ to 

be used in a personal assault disability claim. The VA will tell you 

that because the current system allows for this alternative evidence 

for verifying an assault, there is no need for patient parity with 

evidentiary standards. But every day I hear from vets who detail 

claim denials due to the vast inconsistencies in the VA application 

of these standards. What one regional office or adjudicator will accept as proof, another will deny. 

In 2010 the VA relaxed the evidentiary standards for veterans 

who suffer from combat-related PTSD, as you all know. It is the 

same diagnosis, but a very different evidentiary standard. The VA 

finally acknowledged that far too many veterans who have deployed into harm’s way suffered the emotional consequences of 

their service but could not, through no fault of their own, locate 

military documentation that verified the traumatic events that 

triggered their PTSD. The VA now accepts their statement of traumatic events, along with a PTSD diagnosis and medical link as 

enough to accept the disability benefits. 

The VA’s less-favorable treatment of veterans who suffered sexual assault than those who suffered other forms of combat trauma 

is arbitrary. The VA can articulate no rationale for why a veteran’s 

lay testimony may be adequate to establish combat trauma, but not 

trauma from sexual assault. 

The Ruth Moore Act corrects this injustice. Last congress, it was 

endorsed by a very long list of organizations including The American Legion, Disabled American Vets, Veterans of Foreign Wars, 

Vietnam Vets of America, Iraq and Afghanistan Vets of America. 

It is all detailed in my testimony—I won’t give you the whole list— 

but you can see there is a long list of organizations that support 

this, and I want to thank them for their support and applaud them 

for the work they do for veterans. 

This bill also requires the VA to report MST-related claims information back to Congress, such as the number of denied and approved MST claims each year and the reasons for denial. 

As Members of Congress, we have a responsibility to ensure that 

the VA is providing timely and accurate decisions to veterans, but 

we cannot do that without sufficient data. Over the past few years 

there has been significant public attention to sexual trauma in the 

military and the VA has re-doubled its training and prevention efVerDate Aug 31 2005 07:08 Jun 01, 2016 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 Y:\98-631.TXT PAT

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forts. But let me reiterate that the problem is not fixed. It is a 

problem of fundamental fairness. If a medical diagnosis and link to 

a claimed event is enough for one group of veterans with the same 

medical diagnosis, it ought to be enough for another. 

Critics of this legislation might say that it makes it too easy to 

get benefits and veterans can say just anything to get those benefits. First of all, that is simply not true. There still needs to be a 

medical diagnosis of PTSD and a medical link, which are not at all 

easy to come by, and less easy to live with, and, secondly, we heard 

that same argument when the VA proposed a similar change for 

combat veterans, but, in fact, I haven’t heard the veterans administration (VA) say they have had big problems with veterans lying 

about their service. 

Mr. Chair, over the last four years, I have heard from dozens and 

dozens of veterans from all over the country, men and women who 

volunteered to serve their country, many of them planning on a career in the military, only to have that career cut short by the horror of a violent sexual assault. The survivors were blamed and harassed, crimes were covered up, and the survivors themselves became the subject of further harassment and incrimination. All too 

often what followed was years of mental health issues, lost jobs, 

substance abuse, and homelessness. 

But these stories don’t have to end this way. With the Ruth 

Moore Act, we can change the VA’s policy so veterans who survive 

sexual assault get the benefits they earned and deserved. Thousands of veterans, survivors of sexual assault have fought for years 

to get the benefits that are owed them, but they didn’t give up, so 

we are not going to give up in our fight to reform this process to 

make sure that those brave women and men get the justice that 

they deserve. 

So, thank you again, Mr. Chair, Ranking Member, now Titus, 

and Members of the committee for considering this legislation. I 

appreciate your hearing me out today. 

[THE PREPARED STATEMENT OF MS. PINGREE APPEARS IN THE AP- PENDIX] 

Mr. ABRAHAM. Thank you, Ms. Pingree. 

We will forego a round of questions for Ms. Pingree, and any 

questions that anyone may have for our colleague may be submitted for the record. 

On behalf of the Committee, I thank you for joining us and you 

are excused. 

Ms. PINGREE. Thank you very much. 

Mr. ABRAHAM. The Chair will now ask Chairman Miller to talk 

about his bill. 

Mr. MILLER. Thank you, Chairman Abraham, Ranking Member 

Titus. I appreciate the opportunity to be here to talk about improving VA’s claims process for America’s warriors, and I am here to 

talk about H.R. 1379, which I am proud to have introduced and 

which would help streamline the VA appeals process. 

Our nation’s veterans, particularly those who have service-connected disabilities, have a right to have their claims decided accurately and fairly the first time, and if an appeal is necessary, the 

final decision should not only be accurate and fair, it should be consistent and it should be timely. Unfortunately, that has not been 


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the case in recent years. As of the first quarter of fiscal year 2015, 

veterans were forced to wait an average of 1,896 days—that is 

1,896 days—for their appeals to be decided by the Board of Veterans’ Appeals and that is in addition to the time it took for VA 

to issue the initial decision. 

According to the Board, in fiscal year 2014, 58 percent of all 

Board decisions contained at least one remandable issue. In those 

cases, veterans are left in limbo as their cases are bounced back 

and forth between the Board and the Appeals Management Center 

without a resolution. Imagine the frustration of a veteran who has 

waited for over five years for an appeal, only to have the Board remand the case for additional development. Then the veteran must 

wait over thirteen and a half months, on average, for the VA to 

reach another decision. If that decision is negative, the appeal will 

return to the Board where it may be remanded again. 

As Chairman Abraham noted in his January 22nd oversight 

hearing on appeals last year, the court of appeals for veterans 

claims held the secretary of Veterans Affairs in civil contempt citing the Department’s gross negligence in ignoring a veteran who 

repeatedly raised concerns on an appeal that had been remanded 

to the Department. The court noted that VA’s inaction, quote, 

‘‘Conjures a vision of a drowning man watched by a life guard in 

a nearby boat, equipped with life preservers and rescue ropes, who 

decides to do nothing even though the drowning man is blowing a 

whistle and firing flares to call attention to his plight,’’ end quote. 

Our nation’s veterans deserve much better and H.R. 1379 aims to 

do just that. 

Now, in cases where there is insufficient evidence, H.R. 1379 

would give the Board the authority to obtain all the evidence it 

needs to issue a fair and accurate decision. This very simple change 

to the law will help the Board resolve its appeals backlog and give 

the veterans the finality that they deserve, and I would ask that 

the members, when given the opportunity to vote, would support 

H.R. 1379. 

And I yield back to you, Mr. Chairman, and humbly thank you 

for allowing me to present my bill. 

Mr. ABRAHAM. Thank you, Mr. Chairman, and thank you for 

your presence. 

The Chair now recognizes Ms. Titus for both opening remarks 

and to speak about her bill. 

Ms. TITUS. Well, thank you very much, Mr. Chairman. I apologize for being late; I was in the office with some veterans who had 

been reunited with their war dogs and it was kind of hard to leave 

them. 

I will forego opening comments for now, and let me say, one 

thing that I wanted to mention is the absence of one bill that I had 

hoped would be in the markup and requested, and that is H.R. 

1598, the Veteran Spouses Equal Treatment Act. We have had a 

hearing on that. We have been talking about that for years. We 

have had nothing but positive comments and I would hope that we 

could work together to see that this gets passed so that all our veterans can receive the benefits that they are entitled to, so that one 

day when they are wearing their uniform they get the benefits, and 


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the next day when they take it off, they lose them, depending on 

what state they live in, and we don’t think that is fair. 

I have got to just flip here—I’m sorry—to talk about my bill; I 

didn’t realize that was coming up next. Can you help me? I apologize. Yeah, I have got everybody else’s bill that I was going to address in my opening remarks and I don’t even have my own list 

in front of me. It is a bill that we heard last time that we—okay, 

thank you, I will just go from here. 

Okay. It is H.R. 1414, the Pay As You Rate Act. This would ensure that all veterans and their families receive the benefits they 

have earned through the military service more expeditiously by directing the secretary to pay our veterans as their individual medical conditions are rated. Now you have to wait until the entire 

case is analyzed and adjudicated to get any benefits; sometimes 

that is a long time to wait. We thought that it would make more 

sense and would help veterans if, as different aspects of the case 

are rated, you get the benefit for that aspect. 

For example, many of the veterans who returned from the Middle East today have a series of problems; they don’t have just one 

claim, it can be eight, nine, up to eleven sometimes, different 

issues, and some are very complicated and take a long time. So 

why not give the veteran at least some benefit as they go along 

waiting for the entire case to be adjudicated. 

And thank you, Mr. Chairman, for your patience. 

Mr. ABRAHAM. Thank you, Ms. Titus. 

The Chair recognizes Mr. Zeldin to talk about his bill. 

Mr. ZELDIN. Thank you, Mr. Chairman. 

I speak today in favor of H.R. 1569. I appreciate you bringing it 

up for the Committee’s consideration. In our current system, many 

of our veterans have earned service-related benefits due to injuries 

sustained on the battlefield. Those benefits, however, can only pass 

to a small group of individuals should the veteran pass away. If 

that veteran does not have a qualifying family member and passes 

away, the VA recoups the benefits that rightfully belong to the veteran. 

The VA has struggled to complete timely reviews of claims and 

if a veteran passes away while the VA is still reviewing the claim, 

the VA no longer has to award the earned benefits. H.R. 1569 

would require the VA to pay certain benefits that were earned by 

a veteran to the veteran’s estate. Currently, only a veteran’s 

spouse, minor child, or dependent parent or parents, are eligible to 

collect the accrued benefits. By adding the estate to the current list 

of beneficiaries, adult children can now also receive the benefits 

earned, should there be no other qualifying family members. 

Servicemembers should be able to share the benefits they have 

earned with their families. 

This bill ensures that the benefits a veteran earns during his or 

her service stays with the family. Further, with the addition of this 

piece of legislation, the VA can no longer avoid awarding a claim 

to a veteran due to slow processing time. Not only will this bill protect the benefits that our veterans have earned, but it will also 

help maintain stricter levels of accountability at the VA. 

I yield back the balance of my time. 

Mr. ABRAHAM. Thank you, Mr. Zeldin. 


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The Chair now recognizes Mr. O’Rourke. 

Mr. O’ROURKE. Thank you, Mr. Chairman. 

I will speak briefly about H.R. 800, also known as the Express 

Appeals Act, and as Chairman Miller’s bill intends to do, this is to 

speed up the appeals process for veterans who are now waiting 

years instead of months to hear back on an appeal to an originally 

filed service-connected disability claim. As the Chairman’s bill 

would, this would cut out the remand process, whereby a veteran’s 

case is sent back to the VBA; instead, that would be decided by the 

Veterans’ Board of Appeals. But it would also create a five-year 

pilot program, an alternative to the current system, that would 

allow veterans to file a fully developed appeal, and they would, by 

having an expedited process, forego the ability to add additional information to that appeal during that process. We hope, and it is the 

intention, as stated in the bill, that that gets the appeal wait-time 

down to under a year, which is far better than what we are doing 

today. 

And I want to stress to the chairman and to the other members 

of the committee, that this is a voluntary pilot program. Should the 

veteran wish to file an appeal under the status quo procedures, he 

or she is fully able to do that. If at any time that a veteran who 

chooses to enter the pilot program, which is to add additional information or return to the status quo filing of an appeal, he or she 

is able to do that as well. So no veteran is forced to do anything 

different than what they are doing today; they just have the option 

to enter a pilot program which would expedite their appeal and get 

them an answer much more quickly than we are able to today. 

And I will note that there are many members of the committee, 

including the committee chairman, who are original cosponsors and 

additional cosponsors to this bill, so we certainly appreciate the 

support and I look forward to hearing testimony from those who 

you have on the second and third panel today. 

And with that, I yield back. 

Mr. ABRAHAM. Thank you, Mr. O’Rourke. 

The Chair now recognizes Mr. Costello. 

Mr. COSTELLO. Thank you, Mr. Chairman. 

Chairman Abraham, Ranking Member Titus, and fellow Members of the Subcommittee, thank you for the opportunity to speak 

to you today on behalf of my legislation, H.R. 1067, the U.S. Court 

of Appeals for Veterans Claims Reform Act; legislation, which is a 

proactive step to ensure that the U.S. Court of Appeals for Veterans Claims is able to meet the growing demand for review of veterans’ claims benefits. H.R. 1067 will ensure that not only do we 

have an adequate number of appellate judges to handle current 

and future demand, it also ensures that we continue to attract 

qualified and capable individuals to serve our veterans on this critical panel. 

To provide you with a little background, the U.S. Court of Appeals for Veterans Claims is authorized to have seven permanent 

judges and two temporary additional judges. Each judge is appointed for fifteen-year terms and each judge has the option to be 

recall-eligible for further service upon retirement. Absent legislative action, this Court is expected to revert back to its permanent 

authorization of nine judges in 2016. H.R. 1067 makes sure that 


VACREP0180 with DISTILLER
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this occurs, as the VA continues to chip away at the appeals backlog. 

As you may know, the Court has exclusive appellate jurisdiction 

over decisions of the Board of Veterans’ Appeals and plays a critical role in ensuring the timely and accurate review of veterans’ 

claims. As the VA continues to investigate backlogs, reports of data 

manipulation and excessive wait times at the VA, there is a potential for our veterans to experience future appeals backlogs; therefore, this legislation would continue the temporary authorization 

for nine judges through 2020 to ensure that there is no interruption in appellate review and service provided to our veterans. Additionally, as the Court is part of the U.S. Judiciary, this legislation 

would provide the judges with benefits commensurate to those provided to other federal appellate judges. 

I hope my colleagues will join me in supporting this legislation. 

Thank you for the opportunity to speak on behalf of H.R. 1067 this 

morning, Mr. Chairman. 

Mr. ABRAHAM. Thank you, Mr. Costello. 

Okay. We will seat the second panel now. On this panel we will 

hear from Mr. David McLenachen, the Acting Deputy Under Secretary for Disability Assistance at the Veterans Benefits Administration. He is accompanied by Ms. Laura Eskenazi, the executivein-charge and vice chairman of the Board of Veterans’ Appeals, and 

Mr. David Barrans, assistant general counsel for the VA. Thank 

you for joining us. 

Mr. McLenachen, you are now recognized for five minutes, sir. 

STATEMENTS OF MR. DAVID R. MCLENACHEN, ACTING DEPUTY UNDER SECRETARY FOR DISABILITY ASSISTANCE, VETERANS BENEFITS ADMINISTRATION, U.S. DEPARTMENT OF 

VETERANS AFFAIRS, ACCOMPANIED BY MS. LAURA H. 

ESKENAZI, EXECUTIVE–IN–CHARGE AND VICE CHAIRMAN, 

BOARD OF VETERANS’ APPEALS, U.S. DEPARTMENT OF VETERANS AFFAIRS, AND MR. DAVID J. BARRANS, ASSISTANT 

GENERAL COUNSEL, OFFICE OF GENERAL COUNSEL, U.S. 

DEPARTMENT OF VETERANS AFFAIRS. 

STATEMENT OF DAVID R. MCLENACHEN 

Mr. MCLENACHEN. Chairman Abraham, Ranking Member Titus, 

and Members of the Subcommittee, thank you for the opportunity 

to present VA’s views on several bills that are pending before the 

Committee. Joining me today are Ms. Laura Eskenazi, executivein-charge and vice chairman of the Board of Veterans’ Appeals, and 

Mr. David Barrans, assistant general counsel. 

I first want to thank the Committee for the opportunity to testify 

concerning the cost-of-living adjustment bills, H.R. 675 and H.R. 

677, which will ensure the value of veterans’ and survivors’ benefits will keep pace with consumer prices next year and in the future. VA supports these bills. 

We are also pleased to have the opportunity to discuss two bills 

that address VA’s administrative appeals process. VA fully supports H.R. 732 which would allow for greater use of video conferencing hearings by the Board of Veterans’ Appeals. We believe this 


VACREP0180 with DISTILLER
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measure would both decrease hearing wait times and offer convenience for veterans. 

We thank Congressman O’Rourke and the veteran service organizations for their efforts related to H.R. 800, which would authorize VA to conduct an express appeals pilot program for veterans 

seeking a quicker final decision on a compensation claim. VA generally supports the bill and works closely with the veterans service 

organizations to develop the fully developed appeals concept. Despite the support, we do have a few technical concerns with the approach outlined in the bill, specifically with respect to the provision 

that would allow a veteran to elect an express appeal at any time 

during the traditional appeal process and the provision that would 

limit the optional process to original compensation claims. We hope 

to work with the Committee to address these and a few other concerns to ensure that VA is able to effectively able to implement the 

pilot. 

VA does not support H.R. 1331. We appreciate the intent of the 

bill, which seeks to provide benefits to veterans more expeditiously, 

but VA already has authority to decide claims based upon medical 

evidence that the claimant submits, provided that the evidence is 

adequate for rating purposes. 

Although VA supports appeals reform such as the Committee’s 

efforts regarding H.R. 732 and H.R. 800, VA does not support H.R. 

1379 because it would not result in faster resolution of appeals for 

veterans who are waiting far too long for a final decision on their 

claims. While some efficiency might result from avoiding the need 

to transfer claims between the Board and other VA agencies, the 

workload itself, developing evidence to support a claim would not 

change. VA believes that it is important to consider the entire appeals process and institute reforms that will result in overall increased efficiency for all veterans. 

VA does not support H.R. 1414 because it already has authority 

to make intermediate rating decisions and has implemented this 

authority in its current policies and procedures. 

Also, VA cannot support H.R. 1569 because it would require VA 

to pay taxpayer funds earmarked for veterans disability payments 

to deceased veterans’ creditors and other organizations or non-family members. The bill would also force VA to discontinue its longstanding practice of reimbursing individuals for covering the costs 

of the deceased veteran’s last sickness or burial in cases where 

there is no surviving spouse, child, or dependent parent. 

Regarding H.R. 1607, the Ruth Moore Act of 2015, I assure you 

this is an important issue for veterans and a high priority for the 

secretary. It is also an issue that the under secretary, Under Secretary Hickey, is passionate about addressing. As set out in our 

testimony, we have taken steps on a number of fronts over the past 

several years including a close review of past MST claims, focused 

training and outreach to ensure that we take into account the special, sensitive nature of these claims. We have seen grant rates increase for these claims as a result of these focused efforts; thus, we 

believe H.R. 1607 is unnecessary and do not support it. Also, as 

stated in our testimony, we believe the bill could cause negative, 

unintended consequences. 


VACREP0180 with DISTILLER
10 

Finally, Mr. Chairman, VA takes no position on H.R. 1067. This 

bill pertains to the operations of the court of appeals for veterans’ 

claims and we defer to the Court for views on that bill. 

This concludes my statement, Mr. Chairman. We are happy to 

entertain any questions that you or the members of the committee 

may have. 

[THE PREPARED STATEMENT OF MR. MCLENACHEN APPEARS IN THE

APPENDIX] 

Mr. ABRAHAM. Thank you, sir. 

Mr. McLenachen, in your written testimony, you do note that the 

VA supports the American Heroes COLA Act of 2015, and you further note that making permanent, the provision to round down the 

COLA, would result in a savings of approximately $39.6 million in 

fiscal year 2016 and $3.1 billion over ten years. Please elaborate, 

then, on the Department’s support of this bill. 

Mr. MCLENACHEN. Yes, sir. I would be happy to do that. The 

round-down provision was a part of the COLA formula for many 

years. It was only within the last few years that that changed. It 

has also been part of the Administration’s baseline budget. With 

that change to again, go to the round-down provision, it is VA’s 

view, based on the bill, that it would provide VA an opportunity 

to use those savings to improve benefits for veterans and survivors 

through other legislative proposals, a few of which are in the 

present submission this year. 

Mr. ABRAHAM. Thank you, sir. One more question for you, sir: 

Many veterans find themselves stuck in this hamster wheel, as it 

has been described, in which the Board has to remand the case for 

development several times before the record is sufficient for a 

Board member to render a final decision. By way of background information, at a January 22, 2015, DAMA oversight hearing, Ms. 

Eskenazi testified that 75 percent of the Board’s inventory consists 

of cases that have been previously remanded. Isn’t it true that multiple remands substantially increase the Board’s workload, as opposed to allowing the Board to develop the evidence needed to issue 

a final decision? 

Mr. MCLENACHEN. Mr. Chairman, I will defer to Ms. Eskenazi on 

that since it is her workload. 

Mr. ABRAHAM. Okay. 

Mr. MCLENACHEN. Thank you. 

Mr. ABRAHAM. The Chair recognizes you, Laura. 

Ms. ESKENAZI. Thank you. Good morning, Dr. Abraham, Ranking 

Member Titus. I first want to thank you for the opportunity to 

speak to you this morning and thank you for your continued attention to veterans appeals issues, an area that is greatly in need of 

attention and some reform, so thank you. 

Mr. ABRAHAM. Thank you. 

Ms. ESKENAZI. Regarding my testimony in January, I believe 

what I was speaking to was the rate of remands that return to the 

Board after remand, and we had a historical figure that showed 

that when the Board remanded a case back to the Veterans Benefits Administration, about 75 percent of those appeals would return 

to the Board after the remand, and the reason was that some of 

those appeals on remand are actually allowed by VBA and they do 

not return to the Board if the benefits are granted. 


VACREP0180 with DISTILLER
11 

That is a data point from a few years ago. I think that the rate 

may be a little bit different today, but one thing to understand in 

the remand process is that it is not just the gathering of the evidence, it is the opportunity for the originating agency, VBA in this 

case, to look at the entire record again and issue a new decision 

for that veteran. And if the veteran is not happy with that decision, 

they can come back to the Board, so it provides them with another 

bite at the apple, so to speak. 

Mr. ABRAHAM. Okay. Thank you. 

Ms. Titus. 

Ms. TITUS. Thank you, Chairman. 

Mr. McLenachen, you mentioned that the VA does not support 

H.R. 1414, which is my bill. You continued to say that the VA has 

the authority to do this, to pay as you rate, but I don’t think that 

you do it even. But having the authority and doing it are two different things, so it doesn’t matter if you have the authority and you 

are not making it happen. 

You say, also, that you—you admit that you need technological 

improvements to make it happen, so how about telling us how to 

make it happen if you don’t want the legislation passed. What are 

the improvements that you need? How will they be enacted? And 

how much are they going to cost? 

And I will ask you, if you are using it and I am mistaken about 

that, how about telling me the result of using it and how many interim decisions have been issued. 

Mr. MCLENACHEN. Yes, I would be happy to answer those questions to the best of my ability without additional data. But I assure 

you that we are doing this in the cases where we can and where 

we should. 

Ms. TITUS. And I am just supposed to take your word for it? 

Mr. MCLENACHEN. No, ma’am. I will see what data we can get 

and I will provide it to you. 

Ms. TITUS. I appreciate that. 

Mr. MCLENACHEN. But let me just give you a little bit of context 

for my answer. In the past, when this—and this is not the first 

time that we have seen this bill introduced, of course. 

Ms. TITUS. Correct. 

Mr. MCLENACHEN. When it was first introduced in the past, VA 

was in a lot different situation regarding the backlog of claims and 

the inventory. Since March, 2013, veterans are now getting decisions on their claims 150 days faster than they were at that point; 

that is a 150-day improvement with an average day pending now 

for our—average days pending for our inventory is down to 132 

days. 

So, although there may have been a need at one point, to look 

carefully at whether we need to break up our decision-making, as 

your bill suggests, VA is in a very different place right now, and 

in our view, a very good place as far as our progress on the backlog. Nonetheless, if there are situations where we have a claim that 

we can grant, in part, we do that. 

Another problem with the bill is that it requires an interim payment with a later reconciliation. We don’t do that. If we have an 

interim rating that we can do, we grant the benefit in whole, regarding that separate piece of the claim. 


VACREP0180 with DISTILLER
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I would also like to remind you of VA’s priority goal, which is to 

decide all claims within 125 days. We are making progress on that 

and we are going to achieve that goal. If we can decide all claims 

within 125 days, in our view, there is less need for those types of 

intermediate ratings. 

Having said that, we are moving towards a national work queue 

where we are better able to move the work around the nation and 

get the work done, and that is the technical advances that are 

mentioned in our testimony. We would be happy to provide you 

more information on how that will work. 

Ms. TITUS. I would appreciate that. Thank you very much. And 

I know you all have made great improvements and cut down on 

backlogs and shortened times, but when do you think that you are 

going to meet that goal? 

Mr. MCLENACHEN. It is our position that we are going to meet 

the goal by the end of the year and we are committed to that and 

that is what is going to happen. 

Ms. TITUS. Okay. Thank you. 

I would also like to ask about the outreach on the MST claims. 

You say that you contacted veterans to inform them to let them 

know that they can request a review of those claims that were decided before the current reforms were begun. Is there any followup to the people that you contacted? Did you contact them a second 

time? Did you follow-up if you weren’t able to find them? How 

many people have taken advantage of it? Do you have some statistics on that? 

Mr. MCLENACHEN. I do have a few that I would be happy to provide you. In 2013, we sent out 2500 outreach letters to potential 

claimants. We received 627 requests for a second look at those 

claims; of those, there was approximately a 65 percent grant rate 

of those that we looked at. 

Wanting to do more, in 2014, we sent out 2,000 other letters. We 

received only 54 requests in response to that second outreach that 

we did in 2014. Of those that we looked at, the grant rate was approximately 47 percent. 

Ms. TITUS. Thank you very much. 

Mr. MCLENACHEN. You’re welcome. 

Ms. TITUS. And I yield back. 

Mr. ABRAHAM. Thank you, Ms. Titus. 

The Chair recognizes Mr. O’Rourke. 

Mr. O’ROURKE. Thank you. 

I wanted to get a little bit more feedback from you on the two 

concerns that you raised with H.R. 800. One, as I understand it 

from your testimony, was H.R. 800’s ability to allow a veteran to 

elect to pursue an express appeal at any point in the process, and 

the second one, I believe, deals with the ability to re-open an original claim through this, which, my understanding is that H.R. 800 

would limit. So could you describe your concerns with those two 

and potentially suggest a fix that you think is better than what we 

have in H.R. 800? 

Mr. MCLENACHEN. I would be happy to. 

I just want to reassure you that VA is fully committed to doing 

this pilot. Our concerns are purely technical. We are committed to 

doing this. We think it is essential to looking for ways to improve 


VACREP0180 with DISTILLER
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the administrative appeal process; however, what I would like to 

do to make sure that you get the information that you need is turn 

it over to Ms. Eskenazi to go into a little bit more detail about 

those two concerns that we had. 

And, again, there are others, but I just want to say that primarily what we are concerned about is making sure that this pilot 

program is very successful and that is the reason why we raised 

those concerns. 

Ms. ESKENAZI. Thank you, Congressman O’Rourke. 

And, again, just to restate the support for the concept of FDA or 

express appeals, as outlined in H.R. 800, and I echo the comments 

that our concerns are purely technical and can be resolved. 

The first item that you mention is the provision in the bill that 

allows veterans in the existing appeals process to opt-in to this express appeal concept. That is something that we are not recommending. We are recommending that this be a pilot for new appeals, and the reason is on the hope is, by doing this as a five-year 

pilot, this will prove as a kind of proof-of-concept to see what another type of appeals process looks like. 

And a few things to consider by allowing folks in the existing appeals process to join midstream, for one, when you look at the life 

of their appeal, if they are already in the appeals process, it will 

be a much more prolonged process. So start-to-finish, they are not 

going to have anything that looks express; it will be a lengthy appeal, and that could lead to misperception among the community 

that it is not a program that offers anything by nature of express. 

And also, it would provide lots of mixed data as to the success of 

the program itself. And, again, the hope is that this will model 

some sort of—it will prove a concept. 

And for those veterans that wish to elect into this voluntary program, we can watch this over the period of time during the pilot 

and hopefully achieve the same types of overall results for veterans 

as with the current more lengthy process. So that addresses your 

first point. 

The second point concerns the types of claims that could opt into 

fully developed appeal from the beginning. And VA actually believes that we could leave it open to any type of claim; it wouldn’t 

have to be restricted to just original claims, which is I believe, how 

it is outlined in H.R. 800. So we would support a broadening of the 

type of claims that would go in. 

Mr. O’ROURKE. Okay. Well, thanks for elaborating on that, and 

as you have described it, your suggestions sound very reasonable. 

And, you know, I think our primary goal is to expedite the appeals 

process and we want to fix the entire system. We hope this alternative, perhaps, illustrates a way to do that. I think it is the reason why you have a pilot program, but I want to make sure that 

we are focused on getting the best possible outcome for those veterans, including a timely, accurate answer. So I want that to remain the priority. 

But I think a secondary goal is to make sure that we have a good 

data related to this. So I understand your argument on the first 

point, and I am pleasantly surprised on the second one that you 

want to make sure that it is open to as many cases as possible. 


VACREP0180 with DISTILLER
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As you know, we have done a tremendous amount of work with 

veterans service organizations—I should say that they have done 

a lot of work in vetting this, providing good suggestions, committee 

staff, members on the committee. So I want to make sure that we 

vet these suggestions with them, but they sound reasonable, and 

if we can incorporate them, we would certainly want to do that and 

appreciate the VA’s support of this bill. 

So, thank you. Mr. Chair. 

Mr. ABRAHAM. Thank you, Mr. O’Rourke. 

The Chair recognizes Ms. Brownley. 

Ms. BROWNLEY. Thank you, Mr. Chairman. 

I wanted to follow up a little bit on H.R. 732. I am a co-author 

of that bill, and I am happy to see that the VA is supporting it. 

I had a couple questions, though, with regards to current practices, and wanting to know if every VBA office offers 

videoconferencing for appeals hearings and can the veteran choose 

the location of his or her video hearing? 

Ms. ESKENAZI. Certainly, I am happy to address that question, 

and, yes, currently, all VA regional offices have facilities for video 

hearings with the Board of Veterans’ Appeals. And what happens 

when the veteran makes the request for a hearing, it is usually 

scheduled in the region that the veteran lives, the closest regional 

office; that is generally how it happens. 

Ms. BROWNLEY. So what about for a veteran who lives really far 

away and doesn’t have really easy access to a VBA to office, is 

there the option to be able to do the teleconferencing in the veteran’s home? 

Ms. ESKENAZI. Right now, what we do is work with some of the 

medical centers for some of the areas that are more, you know, 

have larger jurisdictions and we will hold some video hearings at 

VA medical centers to offer a little bit more convenience to veterans. At this time, we do not hold hearings in the veteran’s home 

due to logistics and privacy and things of that nature. 

Ms. BROWNLEY. And if H.R. 732 is to become law, how would the 

VA make clear that veterans who prefer an in-person hearing can 

still receive one? 

Ms. ESKENAZI. Certainly. We would have to revise the election 

form that veterans generally use to request their hearing and make 

all that very clear on the form. Right now, we have to wait for veterans to choose a video hearing and we have done quite a bit of 

outreach to encourage more video hearing participation, but we 

can’t schedule them at the outset. 

So H.R. 732 permits a default to scheduling video hearings while 

still permitting veterans to request that face-to-face in-person hearing with the understanding that that may take a little bit longer 

to actually schedule. But we are very supportive of H.R. 732 as 

drafted, and it certainly would offer a great deal of efficiency in 

scheduling and time-saving in terms of the travel that is involved 

for our 65 or 64 veterans law judges to conduct those hearings. 

Ms. BROWNLEY. Thank you. And I also wanted to follow up on 

Mrs. Titus’ questioning on the MST bill and just wondering how 

and what the VA did to update MST training materials for the VA 

claims processors. 


VACREP0180 with DISTILLER
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Mr. MCLENACHEN. Yes, thank you for that question. Because 

there are a number of initiatives that we put in place over the past 

few years, let me just list them real quickly for you so you have 

a better idea of where we have been on this. We developed nationwide training that we delivered to everybody that works on these 

types of claims. We have dedicated processing teams, what we refer 

to as our ‘‘special operations lanes’’ where these go into, so our 

most experienced adjudicators work these claims. Our challenge 

training for every new adjudicator that comes into VBA and works 

claims, receives a training module that has been added to the challenge training, regarding working these types of claims. We have 

established MST coordinators in every VA regional office. We have 

a certification checklist that must be signed by the service center 

manager or the assistant service center manager that allows us to 

do a consistency study of these types of claims to ensure that all 

regional offices nationally are processing claims it within the acceptable tolerance. We have training that we developed for women 

veterans coordinators in each of the regional offices. Also, we have 

quality assurance-focus reviews that our compensation service does 

on these types of claims, again, to ensure that we keep variance 

among all the regional offices as low as possible. 

So all of those initiatives have gone on since 2011 when Under 

Secretary Hickey first noted that we needed to pay close attention 

to this issue. 

Ms. BROWNLEY. Thank you. I will yield back. 

Mr. ABRAHAM. Thank you, Ms. Brownley. 

Well, on behalf of the Committee, we thank you for your time 

and your testimony. You are excused. 

The third panel can come to the table as soon as they can. So, 

joining us today on the third panel is Mr. Zachary Hearn, the deputy director for Claims, Veterans Affairs and Rehabilitation Division of The American Legion; Mr. Blake Ortner, the deputy director 

of Government Relations for Paralyzed Veterans of America; Mr. 

Paul Varela, assistant national legislative director of Disabled 

American Veterans; Mr. Ronald Abrams, the joint executive director of the National Veterans Legal Services Program; and Mr. Kenneth Carpenter, founding member of the National Organization of 

Veterans’ Advocates. Thanks for coming again, gentlemen, we appreciate you. 

Mr. Hearn, you are now recognized for five minutes. 

STATEMENT OF ZACHARY HEARN 

Mr. HEARN. Thank you. Good morning, Chairman Abraham, 

Ranking Member Titus, and Members of the Committee. On behalf 

of National Commander Mike Helm and the 2.3 million members 

of The American Legion, we are pleased to offer remarks regarding 

pending legislation. The slate of bills offered covers a wide range 

of topics, proof that the impact of Department of Veterans Affairs 

and its benefits are due to the wide range and needs of the veterans community, many of whom have physical and emotional 

scars related to their service in the Armed Forces. 

The American Legion understands the intent of the American 

Heroes COLA Act of 2015 is to eliminate the political wrangling 

with veterans benefits annually. While this bill would eliminate the 


VACREP0180 with DISTILLER
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annual political debates surrounding adjusting veterans disability 

compensation, it also links the benefit to the chained Consumer 

Price Index. This bill had been floated in Congress in 2012, and as 

in 2012, The American Legion remains steadfast against the bill. 

We are not the only organization with significant concerns surrounding linking veterans benefits to the chained CPI. Two years 

ago, AARP reported that, quote, ‘‘A 30-year-old veterans of the Iraq 

or Afghanistan war who has no children and is 100 percent disabled would likely lose about $100,000 in compensation by age 75 

in today’s dollars.’’ While The American Legion understands the intention of Congress to remove veterans from the annual political 

debate, hundreds of thousands of dollars potentially lost to some of 

our most desperate veterans is a serious concern. As a result, The 

American Legion continues to not support the notion of linking veterans benefits to cost-cutting measures that could have devastating 

impact in the long run for America’s veterans. 

Turning our focus to appeals, a recent review of data provided by 

VA indicates that the amount of appeals within the appeals inventory has grown by over 55 percent in the last five years. While 

these figures apply to only veterans awaiting adjudication within 

the Department, it is reasonable to expect that an increased burden on the Court of Appeals for Veterans’ Claims could occur. VA 

routinely states that with increased adjudications, you should expect increased appeals. 

Using that logic, it would stand to reason that the CAVC should 

also expect an increased number of claims appealed to the Court. 

Couple this with the knowledge that within two years, the sequence of retirements could occur and veterans that have experienced years of backlog at regional offices and the Board of Veterans’ Appeals could experience a significant wait prior to having 

their case heard at the court. 

Instead of waiting to see this impact and watch veterans continue to suffer, we ask Congress to act now and expand the number 

of judges to the court to ensure that veterans have their cases 

heard in a timely manner. The American Legion supports a notion 

of expansion of judges within H.R. 1067. 

H.R. 1414, the Pay As You Rate Act seeks to get benefits to veterans as soon as the evidence determines they are eligible regardless of other issues that may be pending in their claims. VA’s manual for claims adjudication, the M21–1MR, states with provided exceptions that VA is to, quote, ‘‘Decide every issue for which sufficient evidence has been obtained and a benefit can be granted, including service connection at a non-compensable level, even when 

the issue of service connection for other disabilities or entitlement 

to a higher evaluation on another issue must be deferred.’’ 

VA already has the capability to do what this bill intends, unfortunately, it has been our experience that veterans’ claims are not 

adjudicated as they become available for benefits; instead, VA often 

waits to adjudicate all issues en masse. This practice can be costly 

to veterans. Not only is a veteran potentially losing hundreds of 

dollars monthly in compensation benefits, the veteran is also potentially losing the ability to seek treatment for the condition from VA 

or receive other benefits associated with service connection for the 

condition. The American Legion fully supports getting these beneVerDate Aug 31 2005 07:08 Jun 01, 2016 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 Y:\98-631.TXT PAT

VACREP0180 with DISTILLER
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fits to the veterans as quickly as possible, and as a result, we support the Pay As You Rate Act. 

Again, on behalf of National Commander Mike Helm and the 

members that comprise the nation’s largest wartime veterans service organization, we appreciate the opportunity to speak before you 

this morning to discuss these bills that could have long-lasting effects upon the veteran community. 

I will be happy to answer any questions that the Committee may 

have. Thank you. 

[THE PREPARED STATEMENT OF ZACHARY HEARN APPEARS IN THE

APPENDIX] 

Mr. ABRAHAM. Thank you, Mr. Hearn. 

Mr. Ortner, you are recognized for five minutes to provide the 

testimony of the Paralyzed Veterans of America. 

STATEMENT OF BLAKE C. ORTNER 

Mr. ORTNER. Chairman Abraham, Ranking Member Titus, Members of the Subcommittee, Paralyzed Veterans of America would 

like to thank you for the opportunity to testify today on the pending legislation. As identified in our written testimony, PVA supports many of the bills before us today, and in light of limited time, 

I will confine my testimony to the legislation where we have concerns. 

PVA is very pleased with the introduction of H.R. 800, the Express Appeals Act. We see this legislation as a good beginning and 

a framework for critical changes to the appeals process that may 

help veterans receive benefits that they have earned more rapidly. 

One concern we have with the pilot program is the opening of the 

pilot to existing traditional appeals. PVA believes that for the pilot 

to be a true test of the express appeals process, it should only allow 

entrance into the pilot at the initial notice of disagreement stage; 

to do otherwise may create a flawed process and an imperfect test. 

In addition, VA should be required to provide more case-specific 

initial notice to veterans at the time of their denial so they can better understand why their claim was denied and whether election 

of the pilot program would be advisable. 

PVA also wants to draw attention to the requirement of the secretary to transfer employees of the Appeals Management Center to 

the Board. We see this as a critical requirement to ensure that the 

Board has experts to assist with the program; however, we fear 

this may become an excuse by the Veterans Benefits Administration for why they are unable to complete traditional appeals. While 

it can be expected that reducing resources or manpower will have 

an impact on AMC’s processing rate, we ask that the Subcommittee 

apply detailed oversight to ensure that any reduction is appropriate 

and acceptable. Furthermore, oversight is critical to ensure transferred staff is properly trained to assist with implementing the 

pilot. 

In addition, PVA wants to ensure that veteran service representatives who are working under a power of attorney for a veteran 

have the ability to also be notified of actions on the appeal; as such, 

we believe it should include language that adds ‘‘and his or her 

representative’’ to ensure that a POA receives copies of whatever 


VACREP0180 with DISTILLER
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was done as part of the development and get another opportunity 

to provide argument. 

PVA strongly supports H.R. 1331, the Quicker Veterans Benefits 

Delivery Act of 2015. This bill is a high priority for PVA’s members 

and we have consistently recommended that VA accept valid medical evidence from non-Department medical professionals. The continuing actions of VA to require Department medical examinations 

does nothing to further efforts to reduce the claims backlog. 

PVA would also like to see VA better adhere to its own reasonable doubt provision when adjudicating claims that involve non-VA 

medical evidence. We still see too many VA decisions where the 

veteran-friendly rule was not applied properly. More often, it appears VA raters exercise arbitrary prerogatives to avoid ruling in 

favor of the claimant, adding obstacles to the claimant’s path without adequate justification. While due diligence and gathering evidence is absolutely necessary, too often it seems that VA is working 

to avoid a fair and legally acceptable ruling favorable to a veteran. 

Both the failure to accept and tendency to devalue non-VA medical 

evidence are symptoms of this attitude. 

PVA cannot support H.R. 1379 as it is currently proposed. While 

PVA generally supports modifications to the remand process as it 

currently exists to allow for more expeditious and accurate resolution of appeals, H.R. 1379 is so vague that we believe it is unworkable. While there may be some advantages to oversight of all remands development by the Board, it will require significant investment of resources to ensure quality is better and results in better 

decisions; however, it raises significant unanswered questions. 

The legislation indicates that, quote, ‘‘The Board may not remand any appeal case to the Veterans Benefits Administration,’’ 

unquote, but does not describe what constitutes a remand. Many 

orders from the Board involve scheduling and completion of an examination by VBA. Is the process for scheduling and quality of examinations going to be improved? Will the process be adequately 

funded and staffed? Will there be additional emphasis on private 

and VA treating evidence? Will the entire SSOC process be eliminated? Until these questions are answered, PVA cannot offer its 

support. 

Additionally, there is an absence of language that directs a predecisional review of the case by the appellant’s designated power 

of attorney. It will be significantly easier for the Board to shut 

VSOs out of the process in the name of expediency. Perhaps PVA’s 

greatest concern is that it almost eliminates VBA accountability. It 

allows for errors and poor initial decisions with no penalty or retribution. In too many cases, AMC ensure the specific orders from 

the veterans law judge are followed and completed. How much 

worse will it be when VBA can essentially wash their hands of 

their claims with no repercussions against the VBA or incompetent 

adjudicators who already have minimal accountability when they 

fail? 

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

to answer any questions. 

[THE PREPARED STATEMENT OF BLAKE C. ORTNER APPEARS IN THE

APPENDIX] 

Mr. ABRAHAM. Thank you, Mr. Ortner. 


VACREP0180 with DISTILLER
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Mr. Varela, you are now recognized for five minutes for testimony on the Disabled American Veterans. 

STATEMENT OF PAUL R. VARELA 

Mr. VARELA. Chairman Abraham, Ranking Member Titus, and 

Members of this Subcommittee, good morning and thank you for inviting DAV to testify at today’s legislative hearing. As you know, 

DAV is a nonprofit veterans service organization comprised of 1.2 

million wartime service-disabled veterans dedicated to a single purpose: Empowering veterans to lead high-quality lives with respect 

and dignity. 

For my oral remarks today, I will highlight several bills of particular importance to our organization. First, H.R. 675, the Veterans’ Compensation Cost-of-Living Adjustment Act of 2015, the 

legislation DAV supports that would increase compensation rates 

for wounded, ill and injured veterans, their survivors, and dependents, commensurate with the rate provided to Social Security recipients effective December 1st, 2015. Customarily, Congress has 

determined these COLA’s in parity with recipients of Social Security benefits to include years in which Social Security recipients received no increased COLA. Consequently, VA beneficiaries also received no increased COLA. DAV has always supported legislation 

that provides veterans with a COLA, however, DAV is adamantly 

opposed to the practice of rounding down COLAs to the nearest 

whole-dollar amount. This bill does contain a round-down provision 

and we oppose the round-down feature of this bill. 

Second, H.R. 677, the American Heroes COLA Act of 2015, a bill 

seeking to couple COLAs for wounded, injured and ill veterans, 

their dependents and survivors to that of Social Security recipients. 

While we do not oppose the automatic adjustment, DAV will continue to oppose legislation that seeks to permanently round-down 

veteran and survivor compensation payments. H.R. 677 would permanently link VA compensation COLAs to that of Social Security 

recipients, provide for an automatic adjustment whenever there is 

an increase, and make permanent the practice of rounding down 

veteran and survivor COLAs to the nearest whole dollar, again, a 

provision we adamantly oppose. DAV and our IB partners call on 

Congress to end, permanently the practice of rounding down 

COLAs. 

Next, H.R. 800, the Express Appeals Acts, a bill supported by 

DAV and other VSOs. This legislation would provide appellants 

with alternate appeals options designed to safely bypass some current VBA appeal processing requirements, potentially saving appellants up to 1,000 days of processing time and ensures appellants 

retain the absolute right to withdraw from the pilot, thus reverting 

them to the standard appeals process without any penalty at any 

time prior to the Board’s disposition. 

On January 22nd, 2005, DAV testified before this Subcommittee 

and recommended creating a new, fully developed appeals pilot 

program. Our proposal benefitted from subject matter expert input 

that spent weeks deliberating the pros and cons of establishing 

such a pilot. The FDA continues to gain widespread and growing 

support within the VSO stakeholder community, including full buyin from both VBA and the Board leadership. The FDA is not enviVerDate Aug 31 2005 07:08 Jun 01, 2016 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 Y:\98-631.TXT PAT

VACREP0180 with DISTILLER
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sioned to replace either the DRO or the traditional appeals process; 

it is another option, a fully voluntary one. Several of the leading 

VSOs responsible for representing the majority of claims and appeals before the Department of Veterans Affairs believe this pilot 

to hold real promise. 

An FDA pilot that addresses some of the overall workload challenges can be modified during its operational period and will supply Congress and stakeholders with tangible information that has 

the potential to lead to true appeals process reform. In the pilot, 

participants voluntarily agree to undertake development of private 

evidence, if any, in order to enter the FDA program. They may not 

later submit additional private evidence. Such supplemental submission results in pilot discontinuance, with one exception. When 

the Board develops any new evidence, appellants would receive copies of said evidence with 45 days to provide supplemental evidence 

in response to VA’s findings. 

To ensure the success of the pilot while preserving the best interests of appellants, we have made several formal recommendations 

that include increased reporting requirements, replacing the word 

‘‘traditional’’ with ‘‘standard,’’ limiting the FDA entry point, language preserving the DRO process, and enhanced VBA outreach. 

Dr. Abraham, we want to take this opportunity to publicly thank 

the ongoing efforts of Congressman O’Rourke, who introduced similar legislation last year. Congressman O’Rourke and his staff 

worked closely with DAV and other VSOs on this initiative. 

We also want to take this opportunity to thank the Chairman of 

the House Veterans Affairs Committee, Mr. Miller, who is the lead 

cosponsor for this bill, for his continued leadership and willingness 

to reach across party lines to support efforts at improving the lives 

of our nation’s wounded, injured and ill veterans, their dependents, 

and survivors. 

We appreciate the opportunity to present our views on these bills 

and look forward to answering any questions you or the committee 

members may have. 

[THE PREPARED STATEMENT OF PAUL R. VARELA APPEARS IN THE

APPENDIX] 

Mr. ABRAHAM. Thank you, Mr. Varela. 

Mr. Abrams. 

STATEMENT OF RONALD B. ABRAMS 

Mr. ABRAMS. Thank you, Mr. Chairman and Members of the 

Committee. 

I want to get right to it and talk about H.R. 800. NVLSP must 

oppose the passage of this bill. As written, H.R. 800 would act as 

a trap for unwary veterans who are focused on seeking a prompt 

resolution of their appeals. First, the notice letters sent by the VA 

are often lacking in crucial detail. The VA doesn’t inform veterans, 

and other claimants, as to what elements of the claim have been 

proven, what issues haven’t been decided, and what elements of the 

claim have been disproved. The VA notice letter should tell the 

claimant the specific reason why the claim was denied and what 

evidence, if any, might support the claim. Without this, how can 

anyone make a knowing decision to give up important procedural 

and due process protections? 


VACREP0180 with DISTILLER
21 

We find there is a great deal of uncertainty among veterans regarding their entitlement to VA benefits. Working with The American Legion we have interviewed hundreds of veterans in the last 

year and found that many of these veterans don’t know why they 

are getting benefits. They are misinformed as to what claims have 

been denied. Therefore, because H.R. 800 invites veterans to give 

up important procedural protections without providing adequate information to make an intelligent decision, we can’t support the bill 

as written. 

Another problem is that while the bill invites the involvement of 

the service representative, it should require their involvement. The 

VA should send a form to the veteran that indicates that the veteran has consulted his or her representative and a place on the 

form to identify the service group and the name of the representative. 

It is a good idea to require the Board to conduct appropriate development, but the bill says that the veteran, after giving up the 

right to submit evidence all through the process, will be given 45 

days to respond to a negative medical exam. That is not enough 

time; they are going to need at least 90 days with an extension of 

another 90 days. It is hard to get a doctor to give you a medical 

opinion in 90 days. I have been doing this for a long time, and even 

when I call family members who are doctors, it can take three, four 

months to get a good opinion. 

I want to shift now to 1379, NVLSP strongly supports this bill; 

however, we think that H.R. 1379 should prohibit the Board from 

developing negative evidence against the claim unless the Board 

explains in writing why the evidence is not sufficient to award benefits. This would eliminate some of the problems caused by what 

we call the ‘‘hamster wheel.’’ 

NVLSP supports the package of H.R. 1414, but wants to note 

that the VA has a manual provision that also calls for the VA to 

service connect claims that are at a non-compensable level so the 

veteran can get healthcare treatment. We would like that added to 

that bill. It is already in their rules, they ought to not have a problem adding that in. 

I see I am running out of time, and I will be happy to take any 

questions. Thank you. 

[THE PREPARED STATEMENT OF RONALD B. ABRAMS APPEARS IN

THE APPENDIX] 

Mr. ABRAHAM. Thank you, Mr. Abrams. 

Mr. Carpenter, you are recognized for five minutes, sir. 

STATEMENT OF KENNETH M. CARPENTER 

Mr. CARPENTER. Thank you very much, Members of the Committee. NOVA thanks you for inviting us to testify. Because of the 

limited time, we will address only four bills in our oral testimony. 

The first bill we would like to address is the Quicker Veterans 

Benefits Delivery Act. We believe that this is an opportunity for 

Congress to codify the treating physician rule that has been adopted by regulation with the Social Security Administration. We believe that this will reduce appeals by getting favorable decisions in 

the first instance and reduce the appeals backlog by allowing treating physicians to be given deference in their medical judgment of 


VACREP0180 with DISTILLER
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the veteran’s condition based upon their relationship and treatment relationship with the veteran. This rule has been in place 

with Social Security and veterans should be afforded the same benefit. This bill acknowledges that there is a place for non-VA medical professional opinions and acknowledges that they should be 

placed upon equal footing with VA medical professionals. We encourage the adoption of the treating physician rule, which we believe will result in the quicker delivery of benefits to veterans. 

The second bill we would like to address is the Court of Appeals 

for Veterans Claims Reform Act. This bill correctly provides for an 

appropriate salary increase for the judges of that court, and of 

equal importance, we believe that this bill recognizes the need for 

the important continuation of the size of the court. 

The Ruth Moore Act of 2015 is necessary, in our view, to place 

a thumb on the scales of justice for those servicemembers who have 

been victims of sexual assault and need this legislation in order to 

obtain benefits for their resulting disabilities. The need for this legislation, we believe is obvious and it certainly is to myself, having 

represented several dozen veterans who have been the victims of 

sexual assault. If this Congress does nothing else this year, Congress needs to enact this bill in order to do the right thing by the 

victims of sexual assault in service. 

Finally, we would like to address the Appeals Express Act. We 

believe that this act does not provide the structural change needed 

in the appeals process and simply delays for five years that necessary structural change. A pilot program is not what is needed to 

deal with the unacceptable delays in processing. At best, this will 

deal with one quarter of the appeals process. We believe that immediate and fundamental change is what is needed and with modification, we believe that this act could provide that immediate restructuring of the VA’s appeal process. 

The Express Appeals Act does contain two very necessary 

changes. First, the elimination of the statement of the case in the 

VA 9, as well as the elimination of Board remands for development. 

This is the type of structural change that is needed and should be 

in place for the benefit of all veterans who are appealing their 

cases immediately. 

H.R. 1379 authorizes the Board of Veterans’ Appeals to develop 

evidence and this is the kind of structural change that is required 

and should be incorporated into an overall structural change for 

the benefit of all veterans. There are currently 29,000 appeals on 

remand from the Board to the agency of original jurisdiction. Having the Board responsible for evidence development on appeal will 

result in faster and more efficient decision-making of appeals. 

A pilot program, as proposed by the Express Appeals Act and allowing the Board to develop evidence, however, is not enough. 

NOVA would like to make five specific additional statutory 

changes. First—and I am not obviously going to be able to get 

through all of those, as I see my time is expiring—so I will conclude my remarks and make myself available for any questions. Do 

not interpret my not addressing the other bills as not support, as 

we have indicated in our written testimony, and we will be willing 

to respond to any questions on any of the bills. 


VACREP0180 with DISTILLER
23 

[THE PREPARED STATEMENT OF KENNETH M. CARPENTER APPEARS

IN THE APPENDIX] 

Mr. ABRAHAM. Mr. Hearn, in your written testimony, you note 

that the VA’s current organizational structure and remand process 

creates an awkward relationship whereby the Board, which is independent of the VBA, directs a VBA agency to conduct the necessary 

development to issue a final decision. As a result the Board members must rely on VBA employees to conduct development over 

whom the BVA has no oversight. Please describe why this situation 

leads to inefficiencies and delays in the appeals process. 

Mr. HEARN. If you have a lack of oversight, there is no sort of 

recourse that the Board can take, and as I indicated during the testimony or The American Legion indicated during the testimony, is 

that you can sense the frustration that the judges are feeling at the 

BVA. I think one of the questions that should be asked of VA, if 

the Appeals Management Center is put underneath the Board of 

Veterans’ Appeals, do the Appeals Management Center employees 

need further training? If the answer is yes, then perhaps that 

speaks to the nature of training within VBA. If they say no, then 

the question has to be, why do you have repeated remands and 

why do you have overturns at the Board of Veterans’ Appeals? 

And I think this is what the frustration is that the veterans feel. 

Having worked over at the Board of Veterans’ Appeals for several 

years for The American Legion, this frustration is sensed in conversations that I have had with individuals over there because the 

AMC is just not responding. There is this disconnect between the 

independent BVA and the VBA. 

Mr. ABRAHAM. Thank you. 

This question goes to the whole panel. Although a few members 

of the panel have expressed some reservations about H.R. 675 and 

H.R. 677, you are all aware that the annual COLA was held up in 

the Senate in 2012—and I think you alluded to that, Mr. Hearn. 

As representatives of veterans, could you please put a face on this 

issue and provide some real-life examples of how the veterans and 

their families are impacted when they can’t count on this COLA 

from year to year. Any of you can respond. 

Mr. HEARN. You’re from Monroe? 

Mr. ABRAHAM. Right. 

Mr. HEARN. The average income is roughly 19,000 and change, 

according to census figures. 

Mr. ABRAHAM. I agree. 

Mr. HEARN. Las Vegas, you are around 25,000. 

Sorry, I didn’t check El Paso ahead of time. 

If you are looking at a hundred thousand dollars worth of benefits in today’s dollars, that is five years’ worth the benefits in your 

district and four years’ worth of benefits in your district, as far as 

income is concerned. So that is the face of it. No veteran wants to 

sit there and be the pawn in this political game, you know, as the 

winds of change occur in these halls; nobody wants to be in that, 

and we understand that, but we also recognize that we can’t be diluting benefits to veterans simply for the course of expediency. 

Mr. ORTNER. Chairman, I think in the case of—I will address 677 

because that is the one we kind of had a little bit of problem with, 

and I think we completely understand why it makes perfect sense 


VACREP0180 with DISTILLER
24 

to have it be automatic. DAV had indicated that some of the issues 

that may come along tying it in the way it is, but until Congress 

gets to a point where there is not the confrontational or the inability to get things through it, we still see—or the ability to have to 

go through the process of approving and having that bill passed to 

raise the COLA as something that provides a vehicle to deal with 

some of the issues that may get hung up in a more confrontational 

congressional aspect. 

As you say, we concur with the idea that it makes sense to have 

something be automatic, but unfortunately, removing the ability to 

have one shot at oversight on what is involved in that COLA just, 

we are not sure that this is going to be the best benefit to the veteran. 

Mr. ABRAHAM. Okay. Thank you. 

Mr. Varela. 

Mr. VARELA. Dr. Abraham, as having helped veterans directly for 

over a decade working with DAV, one of the questions that came 

up regularly as we get closer and closer to December is, are we 

going to get a COLA? Are we going to get a COLA? Are we going 

to get a COLA? And there were a couple of years where we didn’t 

get a COLA, where veterans didn’t receive a COLA, and that made 

them feel very sour that the Government couldn’t provide them 

with a small cost-of-living adjustment. 

So they feel the strain. They feel the uncertainty. They deal with 

the doubt. But if we turn around and tell them that we are going 

to permanently round-down—and that is the issue that DAV has 

primarily is the permanent round-down provision—if we tell them 

that we are going to round-down their benefits to the tune of saving the Government $39 million and whatever the forecasted estimate was in the reports that we received earlier, that is going to 

make them feel even worse. 

Mr. ABRAHAM. Okay. Thank you, Mr. Varela. 

Mr. Abrams, did you have a comment? 

Mr. ABRAMS. Just that compared to all other people getting, entitlement benefits, veterans, more than others are entitled to a 

COLA. 

Mr. ABRAHAM. Any words, Mr. Carpenter. 

Mr. CARPENTER. No. 

Mr. ABRAHAM. Okay. Ms. Titus, the Chair recognizes you for five 

minutes. 

Ms. TITUS. Thank you, Chairman. 

I appreciate all of your concerns about locking in the automatic 

increase to Social Security, and something I don’t hear you say, but 

I think might be in the back of some of your minds is what happens if Social Security goes to change CPI like some people have 

been talking about? And I will ensure you that I would never support having either Social Security or veterans benefits being tied 

to a chained CPI because that cuts out a lot of needed assistance 

that veterans have. 

Also, I just want to say I appreciate your support for the Pay As 

You Rate Act, and you seem to have some of the same concerns I 

do about the fact that the VA has the authority to do it, but they 

are not doing it or they are not doing much of it. Also, I think you 


VACREP0180 with DISTILLER
25 

had good suggestions, especially about putting in the manual, and 

I appreciate that. 

I would just ask you, how can you help us, if we move forward 

with this, assure that the interim payment doesn’t become the ceiling of the claim because we certainly don’t want that to happen. 

I know that this committee has oversight down the road and we 

can do something through legislation, but how about let’s eliminate 

the tendency to create a change before it happens for once, can stop 

it from going in the wrong direction at the front end and not deal 

with it at the back end. Do you have any suggestions for how we 

might do that, anybody? 

Yes, sir? 

Mr. ABRAMS. The VA could be proactive and do a study that reviews the subsequent rating after an interim rating has been assigned. For example, if they service-connect a particular condition 

with a 10 percent rating and then they are going to do an evaluation to evaluate the severity of the particular condition, the VA 

may want to do a study of those evaluations and you can ask for 

a report given to Congress as to how that worked out. That would 

probably ensure that the VA would pay attention to providing the 

right info, and you would also want to know how long it took to 

get to the final rating. 

Ms. TITUS. Thank you. 

Any other suggestions or comments? 

Mr. VARELA. Yes, just so I understand the question, though, 

Ranking Member, so you are saying that the VBA issues an interim decision and then they are done and then we grant a service 

connection at zero or ten percent and that is the ceiling and we 

want to avoid that, correct? 

Ms. TITUS. Well, if you have a pay as you rate system and you 

get some kind of benefit for a veteran, maybe there would be a disincentive to look for others if you have already paid that veteran 

something. We don’t want that to happen; we want it to be the opposite, that you get something while you are waiting for the rest, 

not that you get something and then you are done. 

Mr. VARELA. Right. And as was mentioned earlier, the VA has 

the authority to do that. How often they do it we don’t know, but 

typically, they will grant and then re-examine. And as Mr. Abrams 

mentioned earlier, you would have to have some kind of pending 

workload that shows you what was granted on an interim basis so 

that the VA closes that out and that may require an examination. 

And they also have DBQs now, and if the DBQs are simply going 

to be what the examiners complete anyway, why would we be doing 

two identical examinations? So we would have to look at that, what 

type of claims came in with adequate DBQs and what type of evidence came in that wasn’t in a DBQ format; that is another component. 

Ms. TITUS. Thank you. 

Mr. ORTNER. I think you actually have a very big challenge in 

trying to determine—I mean trying to determine something—you 

know, correct something in advance before you see what happens. 

And we have an example of the challenge with it today where VA 

thinks they are granting interim things and we don’t. I guess the 

greatest concern I have with it is once you establish a rating or a 


VACREP0180 with DISTILLER
26 

level or whatever it might be, I think there is somewhat of a tendency to see that as a ceiling, regardless, just, I mean human nature, because now you have got to decide that you are going to go 

beyond what has already been granted. 

And I think that gets you to the point where you are going to 

have to put much more work into something to try to determine 

how to argue, well, no, we are already giving them 60 percent, now 

we have to give them more or a higher rating. And, you know, the 

challenges that we see in some cases with the VA is that they are 

not even giving them the first rating to begin with and claims are 

being denied. So I think that would be a very difficult thing to 

overcome. Maybe checking it, being able to look at how it is being 

done over time and seeing, you know, with an outside entity that 

then reviews what was decided, you know, that might be a technique, but I think it is a very difficult undertaking. 

Ms. TITUS. Okay. Thank you. 

Mr. HEARN. I think also as we are moving closer and closer to 

the national work queue, this is something that we need to look at 

very closely, because what I have said before is let’s say that you 

are brokering a case out to Cleveland and you are talking about a 

knee situation and that person denies it, but then you have a regional office down in Texas who says, well, no, we are going to 

grant the service connection for the ankle condition. Well, now you 

are going to have to backtrack and make the argument for a secondary or aggravated condition. 

So by having the national work queue, you are going to have this 

kind of a bit of a cycle going on there to make sure that all possible 

situations are exhausted, and the pay as you rate is going to even 

become a little more complicated with that because it is no longer 

just going to be a situation where a case is being adjudicated within one regional office; you are talking one of fifty-six, so there is 

going to have to be some oversight by VA and, you know, history 

has shown, perhaps by Congress. 

But that is where I think where we are going to have to start 

moving towards in that direction. 

Ms. TITUS. Well, thank you. That has been very helpful. 

Thank you, Mr. Chairman. 

Mr. ABRAHAM. Thank you, Ms. Titus. 

Mr. O’Rourke. 

Mr. O’ROURKE. Thank you, Mr. Chairman, and I want to thank 

each of you for your testimony and your response to our questions. 

That is the reason that I am here, even though I am not a permanent member of this subcommittee, I asked to be here today because I wanted to get your feedback on the legislation that we will 

be marking up and voting on in committee and hopefully we will 

see on the floor of the House in the not-too-distant future. 

And I also want to thank you, because along with the employees 

at the VBA, it is your organizations and your members who make 

a deeply flawed, and I would say under-resourced system, work to 

the degree that it does today. We all agree that we are not seeing 

the outcomes in terms of accuracy and wait times that we want, 

but to the degree that we have success, I think it is largely in part 

to those who work with your organizations who advocate for veterans who need this kind of help, so I really appreciate that. 


VACREP0180 with DISTILLER
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Specific to H.R. 800, the Express Appeals Act, I am hearing from 

Mr. Ortner and Mr. Varela that we have some unanimity with the 

VA on limiting the point at which a veteran can enter this pilot 

program, you know, at that point of entry, not allowing somebody 

to come in at a later point. And I think we are largely on the same 

page today, and just that in itself has made today’s hearing productive, from my perspective. 

You also offered some additional suggestions like adding language that includes, quote, ‘‘and his or her representative,’’ which 

I think makes a lot of sense and reflects the work that you all are 

already doing that you will need to do going forward to make this 

successful. 

To Mr. Abrams, I think you brought a lot of good suggestions to 

the table. Language that we might want to change or look at from 

45 days to potentially 90 days, make sure that a veteran has adequate time to make that necessary response. I agree with your proposal that the response back on an initial claim should provide 

some specific detailed language so that the veteran can make an 

informed decision going forward; no one can argue with that. 

And so I would certainly love to work with you to see if those 

kinds of changes are incorporated in the final bill, that we could 

gain your support. We would love to have it and we would love to 

make it a better bill. 

And for Mr. Carpenter, again, I can’t argue with much of what 

you had to say, which is that this bill does not solve the problem; 

it certainly doesn’t. I agree with you. And we should have a comprehensive solution that completely figures this out. I am with you 

on that. 

In the absence of that, however, I do think that we need to make 

some progress, and I think there is value in a pilot program that 

could inform whatever that ultimate solution is. Now, if someone 

has that, it had been vetted and we have the facts and the figures 

and the support to get it done, I will get behind that and drop this, 

because I do agree with you that is the most important thing to do. 

But I also don’t want to allow the perfect to become the enemy of 

the good, and if we have something that can allow us to make some 

progress or help us to make a more informed decision on the final 

product, then I think we should get behind it. But I think you also 

offered some suggestions on how we could do it, and I am certainly 

open to those. 

So I just really wanted to say thank you to each of you for the 

feedback, the commentary. And then, Mr. Carpenter, you said, as 

you were running out of time, that you had some further suggestions that time did not allow you to make, I would love to hear 

those if you would like to use the last minute and a half of my 

time. 

Mr. CARPENTER. Pardon me. These are things that need to be incorporated, in our view, into the bill as a structural change to the 

system. The first is to amend 5904 to allow agents and attorneys 

in after the initial decision—currently it is after the notice of disagreement. The problem that we have with this bill is the limitation on evidence submission. Claimants need to understand what 

evidence is needed in order to be successful in their claim, and as 


VACREP0180 with DISTILLER
28 

Mr. Abrams correctly points out, that that information is not being 

currently provided by the VA. 

Additionally, we believe that this bill needs to specifically state 

that the appeal is completed with the notice of disagreement. Your 

bill says that implicitly, but in your view, it needs to say it explicitly, and that results in the elimination of the statement of the case 

in the VA. 

Also, we believe it is critically important to codify the VA’s regulation for a decision officer review and allow decision review officers the express authority for evidence development. 

Fourth, to allow claimants up to one year from the adverse decision to submit evidence. This would segway back to the first point 

about being able to get representation and advice on what kind of 

evidence needs to be submitted. 

And then we would propose that there would be a dual system 

for decision-making; one, appellate decision-making on the evidence 

in the first instance at the regional office and the second at the 

Board, by incorporating 1379 into this to allow the Board to make 

evidence development, allow the submission from the point that the 

case goes into appeal for one decision on that evidence by the 

Board. 

Thank you very much. 

Mr. ABRAHAM. Thanks again for coming. 

Mr. McLenachen and Ms. Eskenazi, thank you, again for appearing. 

And I think that we all see on the committee, certainly with the 

VSO organizations, everybody in this room wants to do what is 

best for the veteran, and as you see, we are certainly willing to listen to suggestions and ideas of things that we may need to tweak 

or change. We just want to do what is best for veterans, and I 

think everybody in the room agrees. 

So we thank you again. It is good to see you. You are excused. 

Any closing remarks, Ms. Titus, from you? 

Ms. TITUS. No. 

Mr. ABRAHAM. Okay. You are excused, gentlemen. 

I now ask unanimous consent that the statements from the Veterans of Foreign Wars and the U.S. Court of Appeals for Veterans 

Claims be submitted for the record. Hearing no objections, so ordered. 

And I ask unanimous consent that all members have five legislative days to revise and extend their remarks and include extraneous material. Having no objection, so ordered. 

I thank the members and the witnesses for their attendance, and 

this hearing is now adjourned. Thank you. 

[Whereupon, at 12:07 p.m., the subcommittee was adjourned.] 

APPENDIX 

PREPARED STATEMENT OF CHAIRMAN JEFF MILLER

Good afternoon. 

Dr. Abraham, thank you for holding this hearing focusing on the various proposals to improve the VA’s claims appeals process. Our nation’s veterans—particularly those who have service-connected disabilities—deserve to have their claims decided accurately and fairly the first time and, if an appeal is necessary, the final 

decision should not only be accurate and fair, it should be timely. 


VACREP0180 with DISTILLER
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Unfortunately, that has not been the case. As of 2014, veterans were forced to 

wait an average of 1011 days—almost 3 years—to get their case on the BVA docket. 

According to the VA’s figures, approximately half of the cases are remanded. Even 

worse, the VA puts these cases on the backburner in order to focus on certain initial 

claims. Imagine the frustration of a veteran who has waited almost 3 years only to 

have the BVA remand the case for lack of evidence and then wait even longer for 

the VA to reach another decision. 

As Dr. Abraham noted in the January 22nd oversight hearing, last year the Court 

of Appeals for Veterans Claims held the Secretary of Veterans Affairs in civil contempt, citing the Department’s gross negligence in ignoring a veteran who repeatedly raised concerns on an appeal that had been remanded to the Department. The 

court noted that VA’s inaction, quote ‘‘conjures a vision of a drowning man watched 

by a lifeguard in a nearby boat equipped with life preservers and rescue ropes who 

decides to do nothing even though the drowning man is blowing a whistle and firing 

flares to call attention to his plight,’’ end quote. 

Our nation’s veterans deserve better. 

I introduced HR 1379 to streamline the claims process by reducing the number 

of remands. In cases where there is insufficient evidence, HR 1379 would require 

the BVA to develop the evidence necessary to issue a final decision. It would also 

give the BVA the authority it needs to obtain all the evidence it needs. 

There is no reason that the BVA should not be able to develop the evidence in 

order to have all the information it needs to reach a final decision. This simple 

change in the law will help the BVA resolve its claims backlog and give the veterans 

the finality they deserve. 

I yield back. 

f 

PREPARED STATEMENT OF HON. RAUL RUIZ, M.D. 

I thank the Chairman and Ranking Member for including my bill, H.R. 732, the 

Veterans Access to Speedy Review Act in this hearing, and I appreciate the Chairman’s support as a cosponsor of this bill. This simple, bipartisan legislation will provide the Department of Veterans’ Affairs (VA) the flexibility they need—and have 

requested before this committee—to expand the use of video teleconferencing (VTC) 

for hearings before the Board of Veterans Appeals. This authority will expand VA’s 

capacity to adjudicate appeals, thereby expediting results for waiting veterans. My 

bill will also eliminate substantial travel costs to the veteran and the administration. 

Under current law, veterans may involuntarily encounter an extended wait period 

for a judge to visit the veteran’s region or for the veteran to travel to Washington, 

DC. Additionally, veterans are required to pay all travel expenses to and from an 

in-person hearing, even if they would prefer a video teleconference. My bill would 

center the appeals process on the veteran’s needs and save money for all parties involved. Importantly, veterans will retain the right to an in-person hearing, and 

under my bill the VA must honor the veteran’s preference for hearing type—whether in-person or via VTC. 

In 2012, the VA Board of Veterans’ Appeals submitted a report to Congress highlighting recent activities which include four policy recommendations that seek to expedite or streamline the claims process for our nation’s veterans. Video teleconferencing by default was included in these recommendations. In last year’s committee 

report on the amended Veterans Access to Speedy Review Act, the VA committee 

noted that the Board has historically been able to schedule video conference hearings more quickly than in-person hearings, saving valuable time in the appeals process. As the VA testified before this subcommittee, in FY 2014, on average, video conference hearings were held 124 days sooner than in-person hearings. 

This bipartisan solution will get many veterans their appeal results sooner, at no 

cost, which is why each Veterans Service Organization that testified at this legislative hearing supported my bill, as did the VA. This overwhelming support from both 

parties, the Administration, and veterans is why this bill passed the VA Committee 

by voice vote last Congress. 

I urge the members of this subcommittee to come together again to advance this 

essential measure out of committee, and to advocate for the Speaker to bring it to 

the floor. It is understandable to delay controversial and contentious policy proposals until an agreement is reached, but denying veterans relief when a consensus 

has been reached is unacceptable. 


VACREP0180 with DISTILLER
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PREPARED STATEMENT OF CHELLIE PINGREE

Thank you Chairman Abraham and Ranking Member Titus for having me here 

today, and for considering the Ruth Moore Act in this morning’s legislative hearing. 

I appreciate the opportunity to talk more about this bill and why I think we still 

desperately need it to become law. 

It has been said that the greatest casualty is being forgotten. I can tell you that 

the hundreds of survivors who have called my office since I first introduced this legislation in the 113th Congress have felt forgotten by the military system they so 

proudly served. They struggle trying to meet an unfair standard of proof, suffer 

through years of denials and appeals in a process that re-traumatizes them. It is 

a system that is broken and I can tell you from the countless stories I’ve heard that 

it hasn’t been fixed. 

Ruth Moore, who this bill is named for, is a US Navy veteran from Maine who 

was raped twice during her military service. When she reported it, she was discharged and labeled as having a personality disorder. She spent over 23 years fighting the VA to get disability benefits, and she battled homelessness and PTSD during 

that time. 

Quite simply, the Ruth Moore Act ensures that the VA treat our veterans whose 

PTSD is caused by sexual assault with the same standards and burden of proof that 

it extends to veterans whose PTSD is caused by combat and other particularized 

claims. 

We know that fewer people are being assaulted and more are coming forward— 

and that is progress. But still, 19,000 military personnel being sexually assaulted 

or sexually harassed annually is hardly cause for celebration. 

I want to talk a little bit about approval rates—the rates at which claims for VA 

benefits are accepted. 

The GAO did find that the overall approval rate for PTSD resulting from sexual 

assault is increasing but it’s still lower than the approval rating for PTSD claims 

for other factors. 

And what is most concerning to me is that, despite continued training, the subjective standards used to verify victims’ sexual assault meant approval ratings varied 

widely depending on where a veteran submitted their claim. In some offices, as few 

as 14 percent of claims were approved, while others approved 88 percent. In the 

GAO report, the VA states that under the current regulation, two adjudicators can 

interpret a marker in opposite ways and both will be correct. It is simply not acceptable that a veteran faces the roll of the dice on where they live and where their 

claim is reviewed. 

Nor is it acceptable that 62% of respondents in a recent survey stated that they 

faced retaliation for reporting. This, as well as evidence that 40% of assailants were 

perpetrated by a superior within a victim’s chain of command suggests to me that 

we cannot train our way out of this problem. 

After a court ruling in 2002, the VA changed its policy to allow veterans a wider 

range of evidence—called secondary markers—to be used in a personal assault disability claim. The VA will tell you that because the current system allows for this 

alternative evidence for verifying an assault, there is no need for parity with evidentiary standards. But every day I hear from vets who detail claim denials due 

to the vast inconsistencies in the VA’s application of these standards. What one Regional office or adjudicator will accept as proof, another will deny. 

In 2010, the VA relaxed the evidentiary standards for veterans who suffer from 

combat related PTSD—same diagnosis, but different evidentiary standard. The VA 

finally acknowledged that far too many veterans who have deployed into harm’s way 

suffered the emotional consequences of their service but could not, through no fault 

of their own, locate military documentation that verified the traumatic events that 

triggered their PTSD. The VA now accepts their statement of traumatic events, 

along with a PTSD diagnosis and a medical link, as enough to receive disability benefits. 

The VA’s less favorable treatment of veterans who suffered sexual assault than 

those who suffered other forms of combat trauma is arbitrary. The VA can articulate 

no rationale for why a veteran’s lay testimony may be adequate to establish combat 

trauma, but not trauma from a sexual assault. 

The Ruth Moore Act corrects this injustice. Last Congress it was endorsed by the 

American Legion, Disabled American Veterans, Veterans of Foreign Wars, Vietnam 

Veterans of America, Iraq and Afghanistan Veterans of America, Service Women’s 

Action Network, Military Officers Association of America, the National Organization 

of Veterans’ Advocates, and the Fleet Reserve Association. I want to take this opportunity to thank them for their support and applaud the work they do for veterans. 


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This bill also requires the VA to report MST related claims information back to 

Congress, such as the number of denied and approved MST claims each year, and 

the reasons for denial. As members of Congress, we have a responsibility to ensure 

that the VA is providing timely and accurate decisions to veterans, but we cannot 

do that without sufficient data. 

Over the past few years, there has been significant public attention to sexual 

trauma in the military, and the VA has redoubled its training and prevention efforts. But let me reiterate—this problem is not fixed. This is a problem of fundamental fairness: If a medical diagnosis and link to a claimed event is enough for 

one group of veterans with the same medical diagnosis, it ought to be enough for 

another. 

Critics of this legislation might say that it makes it too easy to get benefits and 

veterans could just say anything to get those benefits. First of all, that’s simply not 

true. There still needs to be a medical diagnosis of PTSD and a medical link, which 

are not at all easy to come by and less easy to live with. And secondly, we heard 

that same argument when the VA proposed a similar change for combat veterans, 

and I haven’t heard the VA say they’ve had big problems with veterans lying about 

their service. 

Mr. Chairman, over the last four years, I have heard from dozens and dozens of 

veterans from all over the country. Men and women who volunteered to serve their 

country, many of them planning on a career in the military, only to have that career 

cut short by the horror of a violent, sexual assault. 

These survivors were blamed and harassed, crimes were covered up, and the survivors themselves became the subject of further harassment and recrimination. And 

too often, what followed was years of mental health issues, lost jobs, substance 

abuse and homelessness. 

These stories don’t have to end this way. With the Ruth Moore Act, we can change 

the VA’s policy so veterans who survive a sexual assault get the benefits they 

earned and deserve. 

Thousands of veterans—survivors of sexual assault—have fought for years to get 

the benefits that are owed them. But they didn’t give up. So we are not going to 

give up in our fight to reform this process to make sure these brave women and 

men get the justice they deserve. 

Again, thank you Mr. Chairman, Ranking Member Titus and members of the subcommittee for considering this legislation. I am happy to answer any questions you 

may have. 


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