U.S. GOVERNMENT PUBLISHING OFFICE

25–981 PDF WASHINGTON : 2018

S. HRG. 115–299 

HEARING ON PENDING LEGISLATION 

HEARING 

BEFORE THE

COMMITTEE ON VETERANS’ AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

MAY 17, 2017 

Printed for the use of the Committee on Veterans’ Affairs 

( 

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

(II) 

COMMITTEE ON VETERANS’ AFFAIRS 

JOHNNY ISAKSON, Georgia, Chairman 

JERRY MORAN, Kansas 

JOHN BOOZMAN, Arkansas 

DEAN HELLER, Nevada 

BILL CASSIDY, Louisiana 

MIKE ROUNDS, South Dakota 

THOM TILLIS, North Carolina 

DAN SULLIVAN, Alaska 

JON TESTER, Montana, Ranking Member 

PATTY MURRAY, Washington 

BERNARD SANDERS, (I) Vermont 

SHERROD BROWN, Ohio 

RICHARD BLUMENTHAL, Connecticut 

MAZIE K. HIRONO, Hawaii 

JOE MANCHIN III, West Virginia 

THOMAS G. BOWMAN, Staff Director 1

ROBERT J. HENKE, Staff Director 2

TONY MCCLAIN, Democratic Staff Director 

Majority Professional Staff 

Amanda Meredith 

Gretchan Blum 

Leslie Campbell 

Maureen O’Neill 

Adam Reece 

David Shearman 

Jillian Workman 

Minority Professional Staff 

Dahlia Melendrez 

Cassandra Byerly 

Jon Coen 

Steve Colley 

Simon Coon 

Michelle Dominguez 

Eric Gardener 

Carla Lott 

Jorge Rueda 

1Thomas G. Bowman served as Committee majority Staff Director through September 5, 

2017, after being confirmed as Deputy Secretary of Veterans Affairs on August 3, 2017. 2 Robert J. Henke became the Committee majority Staff Director on September 6, 2017. 

(III) 

C O N T E N T S 

MAY 17, 2017 

SENATORS 

Page 

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

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

Murray, Hon. Patty, U.S. Senator from Washington ........................................... 3 

Prepared statement .......................................................................................... 3 

Brown, Hon. Sherrod, U.S. Senator from Ohio ..................................................... 4 

Heller, Hon. Dean, U.S. Senator from Nevada ..................................................... 37 

Blumenthal, Hon. Richard, U.S. Senator from Connecticut ................................ 42 

Sullivan, Hon. Dan, U.S. Senator from Alaska ..................................................... 49 

Manchin, Hon. Joe, III, U.S. Senator from West Virginia ................................... 52 

Boozman, Hon. John, U.S. Senator from Arkansas .............................................. 55 

WITNESSES 

Hatch, Hon. Orrin, U.S. Senator from Utah ......................................................... 5 

Rubio, Hon. Marco, U.S. Senator from Florida ..................................................... 7 

Lee, Jennifer S., M.D., Deputy Under Secretary for Health for Policy and 

Services, Veterans Health Administration, U.S. Department of Veterans 

Affairs; accompanied by Meghan Flanz, Acting General Counsel, Office 

of General Counsel; Donnie Hachey, Chief Counsel for Operations, Board 

of Veterans’ Appeals; Dave McLenachen, Director of Appeals Management 

Office, Veterans Benefits Administration; Margaret Kabat, National Director, Caregiver Support Program, Veterans Health Administration; James 

Ruhlman, Assistant Director for Policy and Procedures, Veterans Benefits 

Administration; and Phil Parker, Acting Associate Deputy Assistant Secretary, Office of Acquisitions, Logistics, and Construction ............................... 10 

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

Response to request arising during the hearing by: 

Hon. Dean Heller .......................................................................................... 39 

Hon. Patty Murray ........................................................................................ 45,47 

Response to posthearing questions submitted by: 

Hon. Bill Cassidy .......................................................................................... 117 

Hon. Mazie K. Hirono ................................................................................... 118 

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

Division, The American Legion ........................................................................... 57 

Prepared statement .......................................................................................... 58 

Keleher, Kayda, Associate Director, National Legislative Service, Veterans 

of Foreign Wars of the United States ................................................................. 70 

Prepared statement .......................................................................................... 71 

Atizado, Adrian, Deputy Legislative Director, Disabled American Veterans ..... 79 

Prepared statement .......................................................................................... 81 

Jaslow, Allison, Executive Director, Iraq and Afghanistan Veterans of 

America ................................................................................................................. 97 

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

Cox, J. David, Sr., National President, American Federation of Government 

Employees, AFL–CIO .......................................................................................... 103 

Prepared statement .......................................................................................... 104 

Response to posthearing questions submitted by Hon. Mazie K. Hirono .... 119 

APPENDIX 

Tillis, Hon. Thom, U.S. Senator from North Carolina; prepared statement ...... 121 

Page

IV 

Reilly, Michael V., Executive Director, American Association of Collegiate 

Registrars and Admissions Officers (AACRAO); letter ..................................... 122 

Broad, Molly Corbett, President, American Council on Education (ACE); 

letter ...................................................................................................................... 124 

Webb, Amy, Legislative Policy Advisor, AMVETS (American Veterans); prepared statement ................................................................................................... 126 

Augustine, Lauren, Director of Government Relations, Got Your 6; prepared 

statement .............................................................................................................. 134 

Military Officers Association of America (MOAA); prepared statement ............. 137 

Wells, CDR John B., USN (Ret.), Executive Director, Military-Veterans Advocacy (MVA); prepared statement ........................................................................ 141 

Kriesel, John, Legislative Chairman, National Association of County Veterans 

Service Officers; prepared statement ................................................................. 145 

Wescott, Dr. Joseph, Legislative Director, National Association of State Approving Agencies (NASAA); prepared statement ............................................... 146 

Reeves, Randy, President, National Association of State Directors of Veterans 

Affairs, Inc. (NASDVA); letter ............................................................................ 148 

Sganga, Fred S., Legislative Officer, National Association of State Veterans 

Homes (NASVH); prepared statement ............................................................... 150 

Spagnolo, Samuel V., M.D., President, National Association of VA Physicians 

and Dentists (NAVAPD); prepared statement ................................................... 153 

Rauber, Diane Boyd, Esq., Executive Director, National Organization of Veterans’ Advocates, Inc. (NOVA); prepared statement ......................................... 154 

Stichman, Barton F., and Ronald B. Abrams, Joint Executive Directors, National Veterans Legal Services Program (NVLSP); prepared statement ........ 161 

Lerner, Carolyn N., Special Counsel, U.S. Office of Special Counsel (OSC) ...... 166 

Hempowicz, Liz, Policy Counsel, Project on Government Oversight (POGO); 

prepared statement .............................................................................................. 167 

Paralyzed Veterans of America (PVA); prepared statement ................................ 172 

Valdez, Bill, President, Senior Executives Association (SEA); prepared 

statement .............................................................................................................. 183 

Davis, Hon. Robert N., Chief Judge, U.S. Court of Appeals for Veterans 

Claims ................................................................................................................... 185 

Scott, Carol Wild, Esq., Legislative Chair, The Veterans & Military Law 

Section (V&MLS), Federal Bar Association; letter ............................................ 187 

Linnington, Lt. Gen. Michael S. (Ret.), Chief Executive Officer, Wounded 

Warrior Project (WWP); prepared statement ..................................................... 201 

Exhibit A ........................................................................................................... 205 

Exhibit B ........................................................................................................... 212 

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HEARING ON PENDING LEGISLATION 

WEDNESDAY, MAY 17, 2017 

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

The Committee met, pursuant to notice, at 2:30 p.m. in room 

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

Present: Senators Isakson, Boozman, Heller, Cassidy, Sullivan, 

Tester, Murray, Brown, Blumenthal, and Manchin. 

OPENING STATEMENT OF HON. JOHNNY ISAKSON, CHAIRMAN, 

U.S. SENATOR FROM GEORGIA 

Chairman ISAKSON. I call the hearing of the Senate Veterans’ Affairs Committee to order. I would like to thank all of you for coming and visiting with us today. I want to particularly thank Cindy 

Rampley—where is Cindy? That is one Georgian who came to see— 

and Barbara Kennon. Thank you all so much for being here. When 

the home folks come you have got to brag about them, so I apologize for that. 

Let me thank all of you for being here, for a very important hearing of the Senate Veterans’ Affairs Committee. I will begin with my 

opening remarks, which will be very brief, followed by Senator 

Tester’s. After his, he will have to leave for a few minutes to go 

to Indian Affairs Committee, at which time we will begin the testimony of our distinguished guests, Chairman Hatch and Senator 

Rubio. Following those we will have the Veterans Administration 

testimony, followed by questions and answers by the Committee 

Members, followed by testimony from our VSOs and other important guests, followed by Q&A for them. 

Thank you all for being here for what is the most important 

hearing that we have had in this Committee all year. I am not 

going to go over every issue, but I am going to say this: we are 

about to hear testimony on accountability, meaningful accountability, which addresses the concerns that for 2 years have plagued 

this Committee and plagued the Veterans Administration. We have 

all come together—I am very appreciative of the Ranking Member 

and what he has done to make it possible, plus other Members of 

the Committee, Republican and Democrat alike. We have worked 

through some thorny issues. We have navigated some rough seas. 

But, thanks to Senator Tester and the other Members of the minority, as well as the Members of the majority, we have come forward 

with the legislation you will hear about today. 

2 

In terms of the appeals process, we are on the cusp of dealing 

with what has been the black eye of the Veterans Administration 

for decades, and that is long backlogs of appeals that are heard 

over and over and over again without resolution. One of the things 

I had hoped to accomplish before I left the Committee as its Chairman would be to have meaningfully dealt with that appeals process. We are close to having done it; I worked closely with Senator 

Blumenthal in that process and will continue to so this Committee 

can, in fact, deal with it. 

Then, as every Member knows, Choice has been a big issue since 

Choice became an issue, and it became an issue about 3 years ago 

when this Committee passed the first Choice bill, dealing with the 

veterans’ backlog, veterans’ problems, and the veterans’ claims. We 

now are in the process of trying to perfect Choice—and that is my 

word. We will be talking about some bills that are being introduced 

today to be completed before this session is over, where with the 

Choice Act, we waived the sunset unanimously a couple of weeks 

ago on the floor of the Senate. The bill and its corrections will be 

in place. Then, we will have dealt with appeals, we will have dealt 

with Choice, and we will have dealt with accountability, which will 

be a major accomplishment for this Committee, or any committee 

in this year. It has been an honor for me to work with the Ranking 

Member, whom I will introduce now, by simply saying, here is big 

Jon. 

OPENING STATEMENT OF HON. JON TESTER, RANKING 

MEMBER, U.S. SENATOR FROM MONTANA 

Senator TESTER. Thanks, Senator Isakson. I appreciate your 

work as Chairman, too. You are a straight-up guy. It is a pleasure 

to work with you, which is a fact. 

There are a number of bills on the agenda today that I am excited about, and bills that I think are going to go do some great 

things for our veterans across this country. These bills are also representative of the bipartisan work of this Committee and they reflect the fact that we are taking our cues directly from the veterans 

and the organizations who represent them here today. 

With that said, I want to also recognize a couple of key Members 

of our Committee who are not with us here today, Tom Tillis and 

Mazie Hirono. Both those folks are tough as nails. They are tremendous advocates for veterans and for their States. They are in 

our thoughts today and we look forward to welcoming them back 

very soon. 

In terms of accountability legislation, I am glad that the Chairman and I could work together with Senator Rubio to make some 

changes to the House bill. The end result is a compromise in which 

none of us got all that we wanted, but which better allows the VA 

to hold bad actors accountable while ensuring employee protections 

and rights to appeal are protected. 

I appreciate the VA and the VSOs for their constructive input 

and for their strong bipartisan support of this legislation. I am also 

pleased that the Deborah Sampson Act, which I introduced with 

Senator Boozman, is on today’s agenda. Allison Jaslow with IAVA, 

it is good to see you again, and thank you for your tremendous advocacy on this legislation. 

3 

It is critical that the Members of this Committee hear from you 

and other women veterans about how and why we need to move 

forward on this legislation. Women are courageously signing up to 

serve our country at a higher rate than ever before and we need 

to make sure that the VA is fully capable of addressing their needs. 

We also need to take steps to increase accountability in VA contracting to establish more medical residencies at the VA, to expand 

the caregiver program, and to reform an outdated appeals process 

that has left veterans waiting months, or even years, for their 

claims to be resolved. Many of the bills that we will discuss today 

will do that just. 

Again, thank you, Senator Isakson, for your leadership, and I 

look forward to the discussion. 

Chairman ISAKSON. Thank you, Senator Tester. 

To the other Members of the Committee, we will leave the record 

open for 10 days to submit opening statements that you might 

want to submit. 

I want to echo and repeat what Senator Tester said, both about 

Senator Hirono as well as Senator Tillis. I understand Senator 

Tillis is doing well. He had a collapse this morning in a 5K or a 

3K, but he is OK. As for Mazie, we all got the report today. She 

obviously is going to be confronted with dealing with kidney cancer, 

but she is doing it. She has done everything she has ever done 

bravely, so she is going to be here with us; we are going to be pulling with her together to pull her all the way through. So, thanks, 

Jon, for mentioning that, and thanks to all the Members of the 

Committee for your support for our fellow Committee Members. 

Do you want to say something? 

STATEMENT OF HON. PATTY MURRAY, 

U.S. SENATOR FROM WASHINGTON 

Senator MURRAY. Mr. Chairman, if I could just say, I will submit 

my full comments in an opening statement for the record. I know 

you want to get to many witnesses. I want to thank you for holding 

this hearing and especially I wanted to mention the bill on caregivers that I have been working on for a long time. 

I know time is important here, but this is a critical issue. We 

have a responsibility to take care of those caregivers. There are a 

number of important parts of this bill, which I will speak to later 

during the questioning. 

[The prepared statement of Senator Murray follows:] 

PREPARED STATEMENT OF HON. PATTY MURRAY, U.S. SENATOR FROM WASHINGTON

Thank you, Mr. Chairman, for holding this hearing. We have some critically important bills on the agenda today that could really improve care for the men and 

women in our military—something I believe everyone in this room is interested in 

doing. 

CARING FOR OUR VETERANS SHOULDN’T BE A PARTISAN ISSUE. 

I think we all agree that our country has a duty to do whatever we can to improve 

the lives of those who have sacrificed so much for our country. 

I was very pleased to introduce my military caregivers legislation that will help 

us do just that. This program recognizes the sacrifice of the friends and family who 

take care of our injured servicemembers by offering assistance to ease their burden. 

This bill would finally open the caregiver program to veterans of all eras, through 

4 

a responsible, phased-in approach that will allow VA to manage the additional 

workload. 

I was very concerned when just this year we heard stories from veterans and their 

caregivers of the inconsistent application of the current program’s eligibility rules. 

We got reports of veterans and their caregivers abruptly losing access to the program, which is a terrible way to treat our military families. The VA must take responsibility for ensuring that consistent, comprehensive guidelines are applied 

throughout the country to protect the caregivers who have earned this resource. 

I believe VA should address these concerns and strengthen the program, while 

also finally opening up the program to veterans of all eras who desperately need 

these services. 

I am committed to working with my colleagues to make sure VA has the resources 

it needs to effectively administer this program, which is why I authored an amendment to the Fiscal Year 2017 VA appropriations bill that invested $10 million to 

hire more caregiver support coordinators, because it’s critical we do this right. This 

additional staff is essential for strengthening the current program and preparing VA 

to finally meet the needs of veterans of all eras. 

This bill also expands the services available for caregivers, and aligns eligibility 

for VA and DOD services. 

Finally, the bill takes a major step toward improving caregiver support for the 

whole country by coordinating the many services offered across the government. 

We know that treating a veteran through the Caregiver Program is far less expensive than through a private nursing home or through a VA nursing home, but most 

importantly, it helps veterans stay out of the hospital, and have shorter stays when 

they do have to go in. It allows veterans to be in their own homes, surrounded by 

their loved ones. Giving veterans a better quality of life is not just the cost-effective 

thing to do, it’s the right thing to do. 

This is just common sense, and it’s the right thing to do for our veterans and their 

caregivers. Our veterans shouldn’t have to wait any longer for these important improvements to their care. 

Finally, thank you to our witnesses and a special thank you to the VSOs for appearing today and for your support for this bill. 

Thank you, Mr. Chairman, and I look forward to working with you to get these 

bills through markup and then through the Senate floor. 

Senator BROWN. Mr. Chairman, real quick. 

Chairman ISAKSON. Senator Brown. 

STATEMENT OF HON. SHERROD BROWN, 

U.S. SENATOR FROM OHIO 

Senator BROWN. Thank you, Mr. Chairman. I echo Senator 

Murray’s words about the importance of this hearing. Welcome, 

Senator Hatch, and, Mr. Chairman, thank you for your leadership. 

I am working one bill particularly, S. 764, the Veterans Education Priority Enrollment Act, which I announced with Youngstown State President Jim Tressel, and am working with Senator 

Tillis, who is the other sponsor. 

There are a number of pieces of legislation with Senator Murray, 

Senator Moran, Senator Tester, and with the Chairman that will 

be a priority. It is important this Committee continues to do its bipartisan work together, as we do in the Finance Committee, Mr. 

Chairman. 

Chairman ISAKSON. Well, I thank two great Members of the 

Committee, Senator Brown from Ohio and my favorite Northwesterner. 

Senator MURRAY. Thank you. 

Chairman ISAKSON. We will go that far. Anyway, she is in the 

north and she is on the west. 

Senator BROWN. I thought Tester was your favorite Northwesterner. 

Chairman ISAKSON. Well, he is not—— 

5 

Senator BROWN. Is that not west enough? He is not west enough. 

Chairman ISAKSON. When he is here, he is my favorite. 

Senator BROWN. To me, Mr. Chairman, Iowa is west, so I do not 

know. 

Chairman ISAKSON. Well, you are one of my favorites and you 

and I have got a mutual friend that tells on both of us. 

I just want to add one particular thing, Senator Murray. I would 

not be here today were it not for a caregiver over the last 12 weeks. 

So, I do not even see anything more appropriate for us to be dealing with today than the people who make it possible for our soldiers to transition from care to independence. It is the greatest contribution people make in this country and I think it is very appropriate that you brought it up. I thank you for crafting that Bill. 

Senator Brown, we will hear your testimony, I mean hear your 

questions later on. 

Senator Rubio has arrived so I am going to introduce both of our 

special guests from our membership, who will testify, and then we 

will hear from our two panels. 

I had the good pleasure, when I got elected to the U.S. Senate 

13 years ago, of meeting Orrin Hatch and getting to know him. He 

is everything he looks like. He is distinguished, intelligent, kind, 

generous, and the most knowledgeable person on the financial affairs of the United States of America of any member of the U.S. 

Senate. It is an honor for us to have him here today to testify. We 

welcome you, Senator Hatch, for being here today. 

I cannot say all those things about Senator Rubio because he is 

young, he does not have gray hair, has not been here near as long, 

but he does one hell of a job promoting what he believes in, and 

he has done a great job on bringing together the accountability bill, 

which is before us today. 

I heard him three times over the weekend, where he did the best 

job of articulating the hard work that went into both these products. I am so glad that he is here today and a member of the U.S. 

Senate. 

So, I welcome both of you to be recognized for up to 5 minutes. 

You may submit your remaining remarks for the record, you do not 

have to submit yourselves to questions, and you are welcome to be 

excused after your testimony is over. 

First of all, Senator Hatch. 

STATEMENT OF HON. ORRIN HATCH, 

U.S. SENATOR FROM UTAH 

Senator HATCH. Well, thank you, Mr. Chairman and other Members of the Committee. I appreciate the leadership you provide, and 

Ranking Member Tester as well. 

I welcome the opportunity to join you as a guest of the Committee for this year. Today the Committee will hear testimony on 

pending legislation, including one of my bills, S. 324, the State Veterans Home Adult Day Health Care Improvement Act of 2017. I 

appreciate the opportunity to speak in support of this bipartisan 

legislation and the many veterans whose lives it would improve. 

Veterans have served and sacrificed on behalf of our country. It 

is, therefore, the duty of every Senator here to ensure that our 

country makes good on the promises we have made to them. Every 

6 

person’s presence in this room indicates an interest in working 

for—or working to fulfill our country’s commitments to our veterans. How to provide quality long-term care is an important question for everyone, particularly for aging veterans, many of whom 

need long-term care to live with service-connected disabilities. 

Traditionally, long-term care is provided in an institutional setting like a nursing home. Nursing home care for one person can 

easily cost thousands of dollars a month and that does not include 

the added cost of specialized health care services which are especially important for some of our most disabled veterans. 

Moreover, in many areas, more people are in need of long-term 

care than there are available beds in nursing homes. This scarcity 

drives up costs and forces individuals to travel farther away from 

home and family to access care, in my home State of Utah, and I 

think other States as well. Our waiting list for State veterans home 

nursing care is over 600 people long. 

Adult day health care is a sensible, cost-saving alternative to traditional long-term care. ADHC is a home- and community-based 

program that hosts participants in a care setting during the day 

but allows them to live at home at night, and it provides participants assistance with activities of daily living and coordinates medical, dental, and mental health services. At the end of each day, 

ADHC participants return home to their family or caregiver. 

Most home caregivers for individuals in need of long-term care 

are spouses and adult children, and this is especially true for veterans. Many caregivers need to work during the day, making care 

for a disabled family member challenging. ADHC gives caregivers, 

in many cases veterans’ families, the respite and some security in 

the knowledge that their loved one is safe and in good hands, receiving specialized care. 

Medical professionals and adult day care users agree and studies 

confirm that medical model ADHC provides an equal standard of 

quality health care services, as nursing home care at less cost to 

participants. In fact, the ADHC programs this bill opens to veterans, are offered by VA-approved State veterans’ nursing homes 

as an alternative to full-time care. These nursing homes offer 

ADHC programs because they want to help more of our veterans 

receive the quality care they need. 

My bill helps them to do that. My legislation also enables veterans access to ADHC by setting the per diem rate the Department 

of Veterans’ Affairs pays for these services at 65 percent of the 

nursing home per diem rate paid for veterans with service-connected disabilities of 70 percent or more. The VA already pays 100 

percent of the cost of nursing home care for these veterans. It 

makes no sense—indeed, it is wrong—to deny veterans the flexibility to maintain their independence and live at home in their 

communities, especially when we can do so at a lower cost to everyone involved. 

My State Veterans Home ADHC Improvement Bill is a cost-neutral, bipartisan bill. It enjoys widespread support from veterans’ organizations and is based on the most up-to-date research on the 

best ways to improve long-term care quality and options. 

I want to thank the Committee for considering my bill as part 

of today’s hearing, and I thank the Chairman and Ranking MemVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 Z:\ACTIVE\051717.TXT PAULIN
7 

ber again for their invitation to join the Committee as a guest. I 

also wish to thank all those in attendance here today. I trust that 

my bill will be given open and fair consideration and I hope for its 

timely passage out of Committee and on to the Senate floor. 

I am very grateful to all of you and thank you for inviting me 

to be able to testify here today. 

Chairman ISAKSON. Well, thank you, Senator Hatch. I can assure 

you it will be open and it will be fair. We are glad to have you on 

the agenda today and appreciate very much your attendance. 

Thank you. 

Senator HATCH. Thank you. If I can leave I would be happy. 

[Laughter.] 

Chairman ISAKSON. With your seniority, you can do anything you 

want to do. 

Senator HATCH. I like that, Mr. Chairman. Thanks so much. 

Chairman ISAKSON. We are delighted to have you, Orrin. 

Senator HATCH. Glad to be here. 

Chairman ISAKSON. It is now my pleasure to introduce the Senator from Florida, my friend, Marco Rubio. 

STATEMENT OF HON. MARCO RUBIO, 

U.S. SENATOR FROM FLORIDA 

Senator RUBIO. Thank you to the Chairman. Thank you very 

much for this, to the Ranking Member and to all the Members of 

the Committee. First, thank you for allowing me to appear today 

to speak on Senate Bill 10994, the Department of Veterans Affairs 

Accountability and Whistleblower Protection Act of 2017. 

I want to, at the outset, I know that the majority of people that 

work at the VA are good, they are hard-working, they are competent, and they serve our Nation’s heroes admirably. They act in 

the best interest of veterans, they are passionate about their work, 

and many of them are veterans themselves, so nothing in this bill 

is designed to punish them, stigmatize them, or in any way hurt 

them. On the contrary, it is designed to reward those who work so 

hard. 

But, it is necessary because the Secretary of the Veterans Administration currently does not have the authority he needs to remove, to demote, or to suspend employees who are unwilling and/ 

or unable to do their jobs, or employees engaged in misconduct or 

illegal activity. 

Americans who do not work for the Federal Government understand that if they violate their employers’ policies they will face 

consequences. They may even lose their jobs. And things should be 

no different at the Department of Veterans Affairs. Indeed, the 

Federal employees charged with taking care of military men and 

women must be held to the highest standard. 

The bipartisan legislation that you will consider today has been 

refined over the course of several years, thanks to you, Mr. Chairman, the Ranking Member, and many others, and it includes real 

reforms that are aimed at fixing the problems that have plagued 

the Department for many years. These are formed to ensure the 

best interest of our veterans come first at the VA. 

To craft this legislation, we worked with a number of the veteran 

service organizations represented here today, including the ParaVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6601 Z:\ACTIVE\051717.TXT PAULIN
8 

lyzed Veterans of America, The American Legion, the Veterans of 

Foreign Wars, the Concerned Veterans of America, the Reserve Officers Association, Iraq and Afghanistan Veterans of America, 

American Veterans, the Military Officers Association of America, 

and several others. The members of these organizations have borne 

the brunt of the VA’s mismanagement and failures. They understand the VA must be properly managed so it can provide timely 

quality care to our veterans. 

I thank these organizations and their members, not just for their 

service to our country and to their fellow men and women in uniform, but also for helping to inform our policy solutions. 

Since the passage of the Veterans Access, Choice, and Accountability Act in 2014, poor performance and misconduct by a few but 

significant number of VA employees has continued to come to light, 

and it is clear that there is, sadly, a pervasive lack of accountability. Just to list a few examples, one VA employee was arrested 

and spent time in jail for armed robbery. Another employee was 

caught watching pornography on the job. In my home State of Florida there have been several instances of prescription drugs being 

diverted, gone missing from VA facilities. It is terrible to think that 

some VA employees may have actively contributed to the opioid 

epidemic gripping the State of Florida and the country. 

In all these cases, the employees involved were ultimately allowed to keep their jobs, or resign with their benefits intact. Other 

management failures at the VA include construction projects that 

are over budget and behind schedule, and billions of taxpayer dollars wasted through the illegal use of government purchase cards. 

It is clear that under existing civil service rules and pressure 

from unions and others, VA leaders are not—have not been able to 

hold individuals accountable for their actions. Over and over again, 

we have seen the VA attempt to take disciplinary action against an 

employee, only to see the appeals process prove so complex, 

lengthy, and lenient that real accountability was virtually impossible to achieve. 

So, the bipartisan, common sense provision of the legislation that 

you will consider will put our veterans first, by reforming the Department’s broken civil service system, maintaining appropriate 

due process protections, and empowering whistleblowers to come 

forward without having to fear retaliation from bureaucrats who 

would rather sweep wrongdoing under the rug. 

Last week, Secretary Shulkin appeared before the Appropriations 

Subcommittee on Military Construction and Veterans Affairs, 

where I asked him about this bill, and what he needs to ensure capable workforce, and he stated, and I quote, ‘‘I wish today I could 

tell you I have the tools to do the right thing, to be able to remove 

those employees. I do not, so, unfortunately, I need a new set of 

tools if I am going to be held accountable for turning this system 

around and doing what we all want to do to serve veterans. So, I 

thank you for introducing this bill. I think it is necessary.’’ 

Mr. Chairman, to the Ranking Member, Senator Tester, to Senators Moran, Heller, and Boozman, thank you for your hard work 

and leadership on this bill and for considering it today. I am hopeful we will see this bill signed into law soon, so that our veterans 

9 

will be more likely to receive the quality health care they earned 

and deserve. 

Thank you again, Mr. Chairman, for having me today, and I look 

forward to working with you, with your staff on the Committee and 

others to move the bill forward. 

Chairman ISAKSON. Well, thank you, Senator Rubio. For the benefit of the entire audience here today, as well as those watching on 

the network, Senator Rubio has worked tirelessly over the last 2 

years, along with almost every Member, if not every Member of the 

Committee. There have been a lot of issues that we have worked 

on. He has been cooperative in working toward those to a responsible bill which brings about accountability and pride in the Department, allows us, for the first time, to be able to, as Members 

of the Senate Veterans’ Affairs Committee to answer tough questions on television in terms of what we have done to keep, or help 

prevent bad things from happening at the Veterans Administration. The rank and file veterans employees at the Administration 

are the best in the country. They are fantastic people. But one bad 

apple can drag down an entire agency, even one as large as the 

Veterans Administration. 

I am appreciative—I want to publicly thank Senator Rubio for 

his conscientious effort, and Senator Tester for working time and 

again to go to meetings, to bring people together, so we have a bipartisan bill that deals with the accountability of the VA and the 

employees in that agency. Thank you, Senator Rubio, for doing 

that. 

You are both—Senator Hatch is already excused. Senator Rubio, 

you may be excused if you like, and you can stay and listen to the 

entire hearing if you like. 

Senator RUBIO. I will watch it on TV. [Laughter.] 

Chairman ISAKSON. That is the right choice. 

We have two great panels today. I am going to introduce Panel 

I. As I call your names, if you will come forward. There will be a 

nameplate in front of the place where you are to sit. After we hear 

the opening statements by Panel I we will have questions from 

Members of the Committee, then we will go to Panel II. After that, 

we will do both questions of Panel II as well, as Members who 

come back to catch up with questions on Panel I, if necessary. 

First, Dr. Jennifer S. Lee, Deputy Under Secretary for Health for 

Policy and Services, Veterans Health Administration, U.S. Department of Veterans Affairs; accompanying Dr. Lee are Meghan Flanz, 

Acting General Counsel, Office of General Counsel; Donnie 

Hachey—did I do that right? I did it right? OK, well, that is close 

enough—Chief Counsel for Operations, Board of Veterans’ Appeals; 

David McLenachen, Director of Appeals Management Office, Veterans Benefits Administration; Margaret Kabat, National Director, 

Caregiver Support Program, Veterans Health Administration; 

James Ruhlman, Assistant Director for Policy and Procedures, Veterans Benefits Administration; and Phil Parker, Acting Associate 

Deputy Assistant Secretary, Office of Acquisition, Logistics, and 

Construction. 

Hopefully I did not miss anybody, and I apologize to anybody 

whose name I did not do a good job with. I apologize for that. 

10 

Dr. Lee, you are on board, and I think everybody else is here in 

a supporting role. Is that correct? 

Dr. LEE. It is a team effort. 

Chairman ISAKSON. A team effort. 

Dr. LEE. Yes, sir. 

Chairman ISAKSON. Well, it is my pleasure to introduce Dr. Jennifer Lee, Deputy Under Secretary for Health for Policy and Services, Veterans Health Administration. Dr. Lee. 

STATEMENT OF JENNIFER S. LEE, M.D., DEPUTY UNDER SECRETARY FOR HEALTH FOR POLICY AND SERVICES, VETERANS HEALTH ADMINISTRATION, U.S. DEPARTMENT OF 

VETERANS AFFAIRS; ACCOMPANIED BY MEGHAN FLANZ, 

ACTING GENERAL COUNSEL, OFFICE OF GENERAL COUNSEL; DONNIE HACHEY, CHIEF COUNSEL FOR OPERATIONS, 

BOARD OF VETERANS’ APPEALS; DAVE McLENACHEN, DIRECTOR OF APPEALS MANAGEMENT OFFICE, VETERANS 

BENEFITS ADMINISTRATION; MARGARET KABAT, NATIONAL 

DIRECTOR, CAREGIVER SUPPORT PROGRAM, VETERANS 

HEALTH ADMINISTRATION; JAMES RUHLMAN, ASSISTANT 

DIRECTOR FOR POLICY AND PROCEDURES, VETERANS BENEFITS ADMINISTRATION; AND PHIL PARKER, ACTING ASSOCIATE DEPUTY ASSISTANT SECRETARY, OFFICE OF ACQUISITION, LOGISTICS, AND CONSTRUCTION 

Dr. LEE. Good afternoon, Chairman Isakson, Ranking Member 

Tester, and Members of the Committee. Thank you for inviting us 

here today to present our views on several bills that would affect 

the VA’s programs and services. Joining me today are a number of 

my esteemed colleagues from across the Department, with a wide 

array of subject matter expertise. 

First I would like to thank the Members of this Committee as 

well as our colleagues from the VSOs for your hard work and commitment to advancing legislation we believe is absolutely critical to 

modernizing the VA accountability and appeals reform. 

The Department also supports many of the bills on today’s agenda, or their intent, as they provide us with authorities to better 

meet the needs of veterans and their families. 

Regarding S. 23, VA agrees with the objectives of this bill but 

does not support the bill, as written, as it may limit VA’s ability 

to maintain distinct identifiers for biologics of human origin and 

could impair our ability to obtain implants quickly when a clinical 

need arises. 

VA supports the intent of S. 112 as long as additional resources 

are available. We feel this authority is needed to fully reach the entire homeless population. 

While VA does not support S. 324 as written, VA does support 

growing adult day health care programs in general, as they are an 

important aspect of the continuum of VA’s home- and communitybased programs. VA would like the opportunity to establish mutually agreeable adult day health rates with our State veteran home 

partners. 

Although VA agrees with the overall intent of S. 543, we are still 

examining the effect this bill would have and would appreciate the 

opportunity to discuss this further with the Committee. VA agrees 

11 

there are opportunities to improve oversight of contractors and program management associated with the contracting process. 

While VA does not support S. 591, VA does favor providing comprehensive support to family caregivers of veterans of all eras. Currently VA is undergoing an internal review of the caregiver program to ensure current eligibility criteria are applied consistently. 

VA welcomes further discussion with this Committee about the current program as well as the proposed expansion. 

VA does not support S. 609. While VA is very supportive of increasing access to chiropractic care for veterans, we do not believe 

that it would be prudent to add chiropractic clinics in areas where 

demand may not exist to justify the investment. 

We support much of S. 681, the Deborah Sampson Act. VA has 

placed a high priority on ensuring equitable and high-quality care 

for women veterans and we appreciate this Committee’s support of 

this priority. The bill would provide a number of authorities to accelerate and expand our efforts to improve care for women 

veterans. 

VA supports the intent of S. 764, the Veterans Education Priority 

Enrollment Act, though we do have concerns we would like to discuss with the Committee. 

VA strongly supports S. 784, which expresses in a tangible way 

the Nation’s gratitude for the sacrifices made by service-disabled 

veterans and their surviving spouses and children. The bill would 

also ensure that the value of dependency indemnity compensation 

keeps pace with increases in consumer prices. 

VA is appreciative of the support for women veterans’ issues in 

S. 804, but has, in fact, initiated several of the actions required by 

the bill. As some provisions may be duplicative of our current effort, VA does not support the proposed legislation. 

VA also supports S. 899, which would require VA to establish a 

leave transfer program and leave bank for the benefit of certain 

disabled VA health care professionals. 

S. 1024 provides much-needed comprehensive reforms to the VA 

appeals process, to ensure veterans receive a timely VA decision on 

their appeal. VA strongly supports the intent of S. 1024 and looks 

forward to working with the Committee to address concerns with 

a few provisions, as drafted. The Department stands committed to 

getting appeals reform accomplished for veterans this year. 

VA strongly supports the aims of S. 1094, the Accountability and 

Whistleblower Protection Act. This would improve our oversight 

and investigation of whistleblower disclosures and retaliation complaints, and would allow for more timely disciplinary action against 

employees whose misconduct or performance undermines veterans’ 

and the public’s trust in VA care and services. We deeply appreciate the Committee’s efforts to meet VA’s needs for greater flexibility in dealing with underperforming and misbehaving employees. 

With the assistance of the Department of Justice, VA looks forward 

to working with the Committee through the technical assistance 

process to resolve the few remaining concerns. 

VA supports, in principle, the draft bill serving our rural veterans, in the interest of building graduate medical education capacity to better meet the needs of veterans in rural and underserved 

areas, such as Alaska. 

12 

Finally, VA has no objection to the Veteran PEER Act but notes 

VA already has the authority to execute this program to include 

more PEER specialists and patient-aligned care teams, subject to 

the availability of funding. 

My written statement provides the Department’s full view on 

each of the bills. 

Thank you, Mr. Chairman, and thank you, Ranking Member 

Tester, for the opportunity to testify before you today. My colleagues and I would be pleased to respond to questions that you 

or other Members may have at this time. 

[The prepared statement of Dr. Lee follows:] 

PREPARED STATEMENT OF DR. JENNIFER S. LEE, DEPUTY UNDER SECRETARY FOR

HEALTH FOR POLICY AND SERVICES OF VETERANS HEALTH ADMINISTRATION, U.S. 

DEPARTMENT OF VETERANS AFFAIRS

Good morning, Chairman Isakson, Ranking Member Tester, and Members of the 

Committee. Thank you for inviting us here today to present our views on several 

bills that would affect the Department of Veterans Affairs’ (VA) programs and services. Joining me today is Ms. Margaret Kabat, National Director, Caregiver Support 

Program, Veterans Health Administration (VHA); Phil Parker; Acting Associate 

Deputy Assistant Secretary, Office of Acquisition and Logistics, Office of Acquisition, 

Logistics, and Construction (OALC); Mr. James Ruhlman, Assistant Director for Policy & Procedures, Veterans Benefits Administration (VBA); Ms. Meghan Flanz, Interim General Counsel; Dave McLenachen, Director, Appeals Management Office, 

VBA; and Donnie Hachey, Chief Counsel for Operations, Board of Veterans Appeals 

(BVA). 

There are a number of bills on the agenda today, and we are unable at this time 

to provide views and cost estimates on a few of these provisions. Specifically, we 

do not have cost estimates on S. 543 and S. 764. 

S. 23, BIOLOGICAL IMPLANT TRACKING AND VETERAN SAFETY ACT OF 2017

S. 23 would direct VA to adopt and implement a standard identification protocol 

for use in the tracking and procurement of biological implants by VA. 

Section 2(a) would add a new section 7330B to title 38 to require VA to adopt 

the unique device identification system developed by the Food and Drug Administration (FDA) for medical devices (or implement a comparable standard identification 

system) for use in identifying biological implants intended for use in VA medical 

procedures conducted in medical facilities of the Department. In procuring biological 

implants under this section, VA would be required to permit a vendor to use any 

of the accredited entities identified by the FDA as an issuing agency pursuant to 

21 Code of Federal Regulations (CFR) § 830.100. The Secretary would be required 

to implement a system for tracking biological implants from donor to implantation 

that is compatible with the tracking system to be adopted and implemented. VA 

would be required to implement inventory controls compatible with the tracking system to enable VA to notify, as appropriate (based on an evaluation by appropriate 

VA medical personnel), VA patients who are in receipt of biological implants that 

are subject to a recall. In addition, section 2 of the bill would provide that in cases 

of conflict between the proposed revision to title 38 and a provision of 21 United 

States Code (U.S.C.) § 301 et seq. or 42 U.S.C. §§ 262 and 264, (including any regulations issued pursuant to these statutes), the provisions of these other statutes or 

regulations would apply. 

Section 2 of the bill would define the term ‘‘biological implant’’ as any human cell, 

tissue, or cellular or tissue-based product or animal product: (1) under the meaning 

given the term ‘‘human cells, tissues, or cellular or tissue-based products’’ in 21 CFR 

§ 1271.3 (or any successor regulation); or (2) that is regulated as a device under 21 

U.S.C. § 321(h). Under section 2(c), the standard identification system for biological 

implants would have to be adopted or implemented not later than 180 days after 

the Act’s enactment. With respect to products that are regulated as a device, the 

Secretary would be required to adopt or implement such standard identification system in compliance with the compliance dates established by the FDA pursuant to 

21 U.S.C. 360i(f). 

If the tracking system for biological implants is not operational within 180 days 

of the bill’s enactment, section 2(d) would require the Secretary to submit a written 

13 

explanation to the Committees on Veterans’ Affairs explaining why the system is 

not operational for each month until the system is operational. 

Initially, we note that section 2(a) of the bill attempts to create a new section 

7330B; however, there already is a section 7330B, requiring VA to issue an annual 

report on the Veterans Health Administration (VHA) and furnishing of hospital 

care, medical services, and nursing home care. This was enacted last December as 

part of the Jeff Miller and Richard Blumenthal Veterans Health Care and Benefits 

Improvement Act of 2016 (Public Law 114–315, section 612(a)). We recommend as 

a technical matter the bill propose to create a new section 7330C, as that would be 

the next available statute in the U.S.C., and that references throughout the bill to 

7330B be updated to 7330C. 

While VA agrees with the bill’s intentions, VA does not support section 2 of the 

bill as written. The bill recognizes the need for a higher standard for human biologics as indicated by the requirement in section 3 for the use of a distinct identifier 

at all stages in distribution. However, as written, the bill could force VA to treat 

human tissues the same as other biologics in terms of identification. 

Additionally, the bill states that VA shall permit vendors to use any of the FDA 

accredited entities identified as an issuing agency for a standard identification system for biological implants. This effectively limits VA to the use of FDA’s minimum 

issuing agency accreditation standards. VA already tracks blood and cellular products successfully using ISBT 128 identifiers in its facilities, and as a result, VA 

should be able to extend this system to ISBT 128-labeled human tissue products 

providing both electronic health record documentation and inventory control. VA is 

working with the Department of Health and Human Services (HHS) and other Federal partners to identify the optimal tracking and tracing systems to ensure the 

highest safety standards for human tissues. 

VA intends to institute new recommendations from HHS for tissue tracking. On 

April 7–8, 2015, the HHS Advisory Committee on Blood and Tissue Safety and 

Availability voted unanimously to recommend that the HHS Secretary adopt a stepwise, risk-based approach to standardizing the identification, tracking, and tracing 

of medical products of human origin. In particular, the Committee recommended establishing ISBT 128 labeling as ‘‘a universal standard for mandatory implementation of unique donation identifiers for all human tissue products.’’ It suggested that 

the HHS Secretary promote the integration of transplantation records into searchable, electronic patient records. It further recommended taking steps to ensure that 

patients are informed when they receive a tissue product and provided a means of 

tracing it. The Committee asked that the HHS Secretary promote education for 

health care providers regarding the risks of human tissue transplants, the need for 

meaningful informed consent, and the necessity of engaging in activities to ensure 

tracking and tracing of tissue products. Last, it noted the importance of promoting 

international collaboration and data sharing on outcomes of tissue transplantation. 

VA notes that HHS does not consider FDA’s Unique Device Identifier (UDI) appropriate for use as a tracking system for all biological implants. Human and animal derived implants, which are not regulated as devices, have different requirements from the devices for which the UDI was created. 

Section 3 would add a new section 8129 to title 38 to govern the procurement of 

biological implants. VA would be limited to procuring human biological implants 

from vendors that meet several conditions. First, the vendors supplying biological 

implants of human origin would have to use the standard identification system 

adopted or implemented by VA under new section 7330B (as added by section 2 of 

the bill) with safeguards to ensure that a distinct identifier has been in place at 

each step of distribution from its donor. Additionally, each vendor would have to be 

registered with the FDA, ensure that donor eligibility determinations and other 

records accompany each biological implant at all times, and agree to cooperate with 

all biological implant recalls initiated by the vendor, the manufacturer, or the FDA. 

Vendors would have to agree to notify VA of any adverse event or reaction report 

it provides to FDA as required by 21 CFR §§ 1271.3 and 1271.350 or any warning 

letter from the FDA within 60 days of the vendor’s receipt of such report or warning 

letter. Vendors would also have to agree to retain all records associated with procuring a biological implant for at least 10 years and would have to provide assurances that the biological implants provided are acquired only from tissue processors 

that maintain accreditation with the American Association of Tissue Banks or a 

similar national accreditation. 

VA would be required to procure biological implants under the Federal Supply 

Schedules (FSS) of the General Services Administration (GSA) unless such implants 

are not available under these schedules. VA would be required to accommodate reasonable vendor requests to undertake outreach efforts to educate VA medical professionals about the use and efficacy of biological implants with respect to implants 

14 

that are listed on the FSS. In the case of biological implants unavailable on FSS, 

VA would be required to procure such implants using competitive procedures in accordance with applicable law and the Federal Acquisition Regulation (FAR). The bill 

would also clarify that 38 U.S.C. § 8123, which addresses procurement of prosthetic 

appliances, does not apply to the procurement of biological implants. 

Additionally, section 3 would establish penalties, in addition to any penalty under 

another provision of law, for procurement employees who are found responsible for 

a biological implant procurement transaction with intent to avoid or with reckless 

disregard of the requirements of this section. Such an official would be ineligible to 

hold a certificate of appointment as a contracting officer or to serve as the representative of an ordering officer, contracting officer, or purchase card holder. 

The new section 8129 would take effect 180 days after the date on which the 

tracking system required by the new section 7330B is implemented. The bill also 

contains a special rule for cryopreserved products, allowing VA 3 years to procure 

biological implants produced and labeled before the effective date of section 8129 

without relabeling the products under the standard identification system adopted or 

implemented under the new section 7330B. 

VA does not support section 3 of the bill as drafted. Vendors would be required 

to retain records for up to 10 years under the bill. VA notes that some institutions 

permanently retain these records. In particular, some types of biologics may be 

stored for extended periods prior to use and it may take several years for an adverse 

outcome to manifest. Disposal of records, in particular, the actual production identifier and donor documentation, will prevent the ability to track human derived biologics to their donor and lead to the use of biologics in VHA that cannot reliably 

be tracked back to the original donor. Requiring providers to retain records for only 

10 years could produce problems in the future, and we believe that permanent 

record retention would be preferable. 

VA also has concerns with the requirement that biological implants be procured 

from FSS sources (unless the products are not available from these sources). This 

would unduly restrict VA clinicians’ best judgment as to the right implants for a 

given patient. Clinicians are not involved in the decision to place biological implants 

on the FSS. Additionally, VHA has determined that biological implants should be 

procured through national contracts that would take precedence over FSS. VA is developing an appropriate initial contract vehicle to acquire such products. 

VA is specifically concerned that enactment of the bill would end the applicability 

of 38 U.S.C. § 8123 to the procurement of biological implants. This change would 

have an immediate, measurable, and adverse effect on wait times and patient care. 

This could result in considerable morbidity in the Veteran population, who would 

be forced to wait until GSA contracting can arrange for specific implants required 

to restore function. It is important to stress that, for many patients, there is an optimal window of opportunity for the use of an implant to prevent permanent loss of 

function. Many of these items are custom made and purchased in low volume or single units and will not be on a GSA contract or be cost effective for the U.S. Government to place on a full contract. Full contracting may take much longer than is 

clinically appropriate for Veterans. Further, it is not uncommon to purchase inventory in emergency situations from other local hospitals to meet acute needs. This 

occurs under the authority of 38 U.S.C. § 8123. Limiting this authority as provided 

in the bill will prevent this activity and could jeopardize timely patient care. VA 

may then be forced to refer these patients to providers in the community, which 

could increase costs to the Department and reduce patient care if these community 

providers are not subject to the same requirements in terms of procurement and 

tracking of biological implants. 

VA is also concerned that the penalties imposed under proposed section 8129(b) 

could produce unfair results if a procurement employee needs to purchase a product 

off-contract to meet the immediate needs of a patient and provider. This could be 

exacerbated by vendors choosing not to contract with VA given the new requirements imposed upon them, thereby eliminating or limiting the availability of products for our patients. Shortages of biologic products could also affect VA’s ability to 

obtain products under contract or through competitive processes. As a result, Veterans’ medical care could be delayed. VA recommends this provision either be stricken or revised to apply penalties only for the procurement employees whose off-contract procurement is for irresponsible reasons. This would provide the Secretary the 

authority to distinguish between cases when a violation was willful and jeopardized 

patient care and when it was willful, but done with the purpose of supporting patient care. 

We estimate that S. 23 would cost $11.2 million in fiscal year (FY) 2018, $33.6 

million over 5 years, and $66.3 million over 10 years. 

15 

S. 112, CREATING A RELIABLE ENVIRONMENT FOR VETERANS’ DEPENDENTS ACT

S. 112 would amend 38 U.S.C. § 2012(a) to permit a grantee receiving per diem 

payments under the Homeless Providers Grant and Per Diem (GPD) Program to use 

part of these payments for the care of a dependent of a homeless Veteran who is 

under the care of such homeless Veteran who is receiving services covered by the 

GPD grant. This authority would be limited to the time period during which the 

Veteran is receiving services under the grant. 

VA supports the intent of S. 112, conditioned on the availability of additional resources to implement this provision. We feel that this authority is needed to fully 

reach the entire homeless population. However, full implementation of the legislation would require additional funding to avoid diminished services in VA’s full complement of programs for homeless Veterans. 

VA estimates this bill would cost $29.8 million in FY 2018, $159.3 million over 

5 years, and $347.6 million over 10 years. 

S. 324, STATE VETERANS HOMES ADULT DAY HEALTH CARE IMPROVEMENT ACT OF 2017

S. 324 would amend 38 U.S.C. § 1745 to require the Secretary to enter into a contract or agreement with each State Veterans Home (SVH) for payment by VA for 

adult day health care (ADHC) provided to an eligible Veteran. Eligible Veterans 

would be those in need of nursing home care for a service-connected disability or 

who have a service-connected disability rated at 70 percent or more and are in need 

of nursing home care. Payments for each Veteran who receives medical supervision 

model adult day health care would be made at a rate that is 65 percent of the payment VA would make if the Veteran received nursing home care, and payment by 

VA would constitute payment in full for such care. The term ‘‘medical supervision 

model adult day health care’’ would be defined to mean adult day health care that 

includes the coordination of physician services, dental services, the administration 

of drugs, and such other requirements as determined appropriate by the Secretary. 

Currently, under a grant mechanism, VA pays States not more than half the cost 

of providing ADHC. States may currently obtain reimbursement for this care from 

other sources in addition to VA’s per diem payments. 

VA supports growing ADHC programs in general as they are a part of VA’s homeand community-based programs that have been demonstrated to benefit the health 

and well-being of older Veterans. However, VA does not support this bill as written 

for several reasons. 

First, VA notes that the bill would base payment rates for ADHC on nursing 

home care rates, though these are two distinctly different levels of care and are furnished for different periods of time. VA pays per diem for three levels of care at 

SVHs: nursing home care, domiciliary care, and adult day health care. The prevailing nursing home rate is calculated based on the cost of providing nursing home 

care, and VA negotiated that rate in conjunction with SVHs. Nursing home residents live at the facility and receive 24-hour skilled nursing care, including services 

after normal business hours with registered nurses involved in care at all times. 

ADHC is a distinctly different level of care that provides health maintenance and 

rehabilitative services to eligible Veterans in a group setting during daytime hours 

only. ADHC participants live at home and only use ADHC services for a portion of 

time during the day, normally about 8 hours, or one third of the length of time that 

skilled nursing care is provided. A per diem payment is made only if the participant 

is under the care of the facility for at least 6 hours (which can be 6 hours in one 

calendar day, or any two periods of at least 3 hours each in any 2 calendar days 

of the month). The nursing home rates that would be used to compute the ADHC 

rates under this bill are based on a formula that was developed in partnership with 

VA’s state home partners and is specific to nursing home care. VA would like the 

opportunity to thoroughly review the cost of providing ADHC and, as was accomplished for nursing home care, establish a mutually agreeable ADHC rate with our 

SVH partners. VA believes revising the language to allow for VA to propose a formula for computing ADHC rates and for SVHs to provide comments on the formula 

would be consistent with the way the nursing home care rates were developed under 

38 U.S.C. § 1745. While this bill would specifically apply these payment rates to 

ADHC programs providing medical supervision, rather than any ADHC program, we 

still believe basing any ADHC payment rate on the rate for skilled nursing care is 

inappropriate. 

Second, we note that the bill would direct VA to ‘‘enter into a contract or agreement’’ with each SVH. Agreements reached under this provision would still generally be contracts. VA has requested specific authority that would allow VA to 

enter into individual agreements not subject to certain provisions of law governing 

16 

Federal contracts. We request this authority be granted before requiring VA to transition state payments from a grant to a contract mechanism. 

We do support the bill’s focus on ADHC programs providing medical supervision. 

A medical supervision model would include physician services, dental services, and 

administration of drugs, whereas these would not be required for a socialized model. 

Additionally, VA expects the numbers of both socialized and medical supervision 

model ADHCs to increase after publication of the proposed regulation. VA is not 

able to predict how many SVHs will adopt the new socialized model, nor how the 

new model’s use will affect costs. Until VA has such information, VA recommends 

against codifying a payment rate, as such a limitation could result in VA overpaying 

or underpaying states in the future. 

VA estimates S. 324 would cost an additional $492,972 in FY 2018, $3.8 million 

over 5 years, and $11.6 million over 10 years. 

S. 543, PERFORMANCE ACCOUNTABILITY AND CONTRACTOR TRANSPARENCY (PACT)

ACT OF 2017

S. 543 would amend section 513 of title 38, U.S.C., to require VA to include performance metrics to service contracts under such authority and safeguards that will 

allow VA to levy financial penalties on service providers who fail to meet established 

thresholds of quality. The bill proposes to place additional requirements for contracts over $100 million to include requiring the service provider to document its 

work in a database and submit reports to VA and the Committees on Veterans’ Affairs of the House of Representatives and the Senate. VA would be required to submit a report to these Congressional Committees if a service provider fails to meet 

its contractual obligations or if there are any modifications made on the contract. 

VA would be required to publish online information on the contract, including any 

modifications to the contract. 

We are still examining the effect this bill would have, and would appreciate the 

opportunity to discuss this further with the Committee. VA agrees that there are 

opportunities to improve our oversight of contractors and program management associated with the contracting process; however, we believe the bill could impose 

undue additional costs to VA and taxpayers, duplicate existing requirements, and/ 

or require clarifying language. Of note, the recently signed Program Management 

Improvement Accountability Act (Public Law 114–264) requires Agencies to implement program management policies and develop a strategy for enhancing the role 

of program managers within the Agency. This law aligns to a program execution 

and governance model VA is currently executing, the Acquisition Program Management Framework (APMF). The APMF has been recognized by the Office of Federal 

Procurement Policy (under the Office of Management and Budget), the Federal Acquisition Institute, and the Government Accountability Office as addressing the critical needs of stronger program management and governance. 

Many of the requirements in section 2 of the bill are already mandated by various 

parts of the Federal Acquisition Regulation (FAR) and/or Veterans Affairs Acquisition Regulation (VAAR). These regulations govern the process by which VA acquires 

goods and services by contract with appropriated funds. VA Quality Assurance, for 

example, requires government-led contract quality assurance at all times and places 

as may be necessary to determine that the supplies or services conform to contract 

requirements. Quality Assurance Surveillance Plans (QASP) should be prepared in 

conjunction with the preparation of the Performance Work Statement. These plans 

should specify: (1) all work requiring surveillance; and (2) the method of surveillance. Each contract shall designate the place or places where VA reserves the right 

to perform quality assurance. 

Moreover, all major programs should have a Program Management Plan (PMP). 

PMP should identify key milestones, detail activities necessary to reach milestones, 

identify risks and issues, and develop strategies to mitigate risks and correct issues. 

Program Managers should also be measuring the health of the program as it relates 

to cost, schedule, and execution of contract through metrics. 

Importantly, VA regulations recognize that a one-size-fits-all approach does not 

work for contracting and that there are times when it is not in VA’s best interest 

to be overly prescriptive. Therefore, VA encourages work to be described in terms 

of required results rather than either ‘‘how’’ the work is to be accomplished or the 

number of hours to be provided; to enable assessment of work performance against 

measurable performance standards; and to rely on the use of measurable performance standards and financial incentives in a competitive environment to encourage 

competitors to develop and institute innovative and cost-effective methods of performing the work. 

17 

When utilized, such contracts include: (1) a performance work statement (PWS); 

(2) measurable performance standards (i.e., in terms of quality, timeliness, quantity, 

etc.) and the method of assessing contractor performance against performance 

standards; and (3) performance incentives where appropriate. In short, VA incorporates metrics for incentive or award fees into contracts when it is in VA’s best 

interest to do so. 

Furthermore, VA Contracting Officers may utilize liquidated damages clauses 

when appropriate. Before using a liquidated damages clause, VA Contracting Officers must consider the potential impact on pricing, competition, and contract administration. Liquidated damages clauses are only used when: (1) the time of delivery 

or timely performance is so important that the Government may reasonably expect 

to suffer damage if the delivery or performance is delinquent; and (2) the extent or 

amount of such damage would be difficult or impossible to estimate accurately or 

prove. 

Although VA agrees with the overall intent of the proposed legislation, VA would 

like to express a few concerns with key sections of the legislation. 

VA also requests clarity on the types of modifications for which reports would 

have to be submitted. The FAR identifies many types of contract modifications, 

some of which may not be of congressional interest. 

While VA agrees with much of the language in the bill, there are sections of the 

legislation where VA recommends modest changes such as placing ‘‘contract’’ with 

‘‘program’’ (e.g., ‘‘use the appropriate project management accountability system of 

the Department to ensure that the contract provides an adequate return on the investment of the Secretary’’ in proposed section 513(b)(2)(B)) to clarify the broader 

responsibility of the Program Manager in ensuring adequate return on investment 

of programs that may have one or more contracts. 

VA would appreciate the opportunity to discuss the proposed legislation with the 

Acquisition Community, as well as to conduct a more formal technical review of the 

proposed legislation at a later juncture. We look forward to ongoing collaboration 

with the sponsors of this legislation. 

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

S. 591, MILITARY AND VETERAN CAREGIVERS SERVICE IMPROVEMENT ACT OF 2017

S. 591 would expand eligibility for VA’s Program of Comprehensive Assistance for 

Family Caregivers, expand benefits available to participants under such program, 

enhance special compensation for certain members of the uniformed services who require assistance, and make other amendments to increase the provision of benefits. 

The Caregivers and Veterans Omnibus Health Services Act of 2010, Public Law 

111–163, signed into law on May 5, 2010, provided expanded support and benefits 

for caregivers of eligible and covered Veterans. While the law authorized certain 

support services for caregivers of covered Veterans of all eras, other benefits were 

authorized only for qualified family caregivers of eligible Veterans who incurred or 

aggravated a serious injury in the line of duty on or after September 11, 2001. These 

new benefits for approved family caregivers, provided under the Program of Comprehensive Assistance for Family Caregivers, include a monthly stipend paid directly to designated primary family caregivers and medical care under CHAMPVA 

for designated primary family caregivers who are not eligible for TRICARE and not 

entitled to care or services under a health-plan contract. 

Section 2 of S. 591, the Military and Veteran Caregiver Services Improvement Act 

of 2017, would remove ‘‘on or after September 11, 2001’’ from the statutory eligibility 

criteria for the Program of Comprehensive Assistance for Family Caregivers, and 

thereby expand eligibility under the program to Veterans of all eras who otherwise 

meet the applicable eligibility criteria. Family caregivers could not receive assistance under this expanded eligibility until FYs 2018, 2020, or 2022 depending on the 

monthly stipend tier for which their eligible Veteran qualifies. Section 2 would also 

add ‘‘or illness’’ to the statutory eligibility criteria, and thereby expand eligibility to 

include those Veterans who require a caregiver because of an illness incurred or aggravated in the line of duty. In addition, the bill would expand the bases upon 

which a Veteran could be deemed to be in need of personal care services, to include 

‘‘a need for regular or extensive instruction or supervision without which the ability 

of the Veteran to function in daily life would be seriously impaired.’’ 

This section would also expand the assistance available to primary family caregivers under the Program of Comprehensive Assistance for Family Caregivers to include child care services, financial planning and legal services ‘‘relating to the needs 

of injured and ill Veterans and their caregivers,’’ and respite care that includes 

peer-oriented group activities. The bill would ensure that in certain circumstances 

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termining the primary family caregiver’s monthly stipend amount. In addition, the 

bill would require VA to periodically evaluate the needs of the eligible Veteran and 

the skills of the family caregiver to determine if additional instruction, preparation, 

training, or technical support is needed, and it would require certain evaluation be 

done in collaboration with the Veteran’s primary care team to the maximum extent 

practicable. 

Section 2 would also authorize VA, in providing assistance under the Program of 

Comprehensive Assistance for Family Caregivers, to ‘‘enter into contracts, provider 

agreements, and memoranda of understanding with Federal agencies, states, and 

private, nonprofit, and other entities’’ in certain circumstances. It would expand the 

definition of family member to include a non-family member who does not provide 

care to the Veteran on a professional basis, and it would amend the definition of 

‘‘personal care services.’’ The bill would also end the Program of General Caregiver 

Support Services on October 1, 2022, but would ensure that all of its activities are 

carried out under the Program of Comprehensive Assistance for Family Caregivers. 

Finally, the bill would amend the annual reporting requirements for the Program 

of Comprehensive Assistance for Family Caregivers. 

In September 2013, VA sent a report to the Committees on Veterans’ Affairs of 

the Senate and House of Representatives (as required by Section 101(d) of Public 

Law 111–163) on the feasibility and advisability of expanding the Program of Comprehensive Assistance for Family Caregivers to family caregivers of Veterans who 

incurred or aggravated a serious injury in the line of duty before September 11, 

2001. In that report, VA noted that expanding the Program of Comprehensive Assistance for Family Caregivers would allow equitable access to seriously injured Veterans from all eras (who otherwise meet the program’s eligibility criteria) and their 

approved family caregivers. 

In the report, however, VA noted difficulties with making reliable projections of 

the cost effect of opening the Program of Comprehensive Assistance for Family 

Caregivers to eligible Veterans of all eras, but estimated a population range of 

32,000 to 88,000 additional Veterans in the first year (estimated for FY 2014), at 

a cost of $1.8 billion to $3.8 billion in the first year (estimated for FY 2014). After 

VA provided this report to Congress, the RAND Corporation published a report titled, ‘‘Hidden Heroes: America’s Military Caregivers,’’ which estimates a significantly larger eligible population (1.5 million) that may be eligible if the program 

were expanded to caregivers of pre-9/11 Veterans and those qualifying due to illness. VA’s estimates in its 2013 report did not account for expansion to eligible Veterans with an illness incurred or aggravated in the line of duty, other Veterans who 

would become eligible for the program based on the amendments in section 2, or 

the additional assistance that would become available to primary family caregivers 

under the bill. This estimate also did not factor in a phased implementation of stipend expansion, as contemplated by the bill. 

VA cannot responsibly provide a position in support of expanding the Program of 

Comprehensive Assistance for Family Caregivers without a realistic consideration of 

the resources necessary to carry out such an expansion, including an analysis of the 

future resources that must be available to fund other core direct-to-Veteran health 

care services. This is especially true as VA presses to strengthen mental health 

services and ensure the fullest possible access to care across the system. 

We wish to make it very clear that VA believes an expansion of those benefits 

that are currently limited by era of service would result in equitable access to the 

Program of Comprehensive Assistance for Family Caregivers for long-deserving 

caregivers of those who have sacrificed greatly for our Nation. However, VA cannot 

endorse this measure before further engaging with Congress on these fiscal constraints, within the context of all of VA health care programs. 

Additionally, before expanding eligibility under the Program, we believe it prudent for VA to ensure that the current eligibility criteria are applied in a consistent 

manner across the program. For example, the National Caregiver Support Program 

is undergoing an internal review to evaluate consistency in revocations and reductions from the Program and standardize communication with Veterans and Caregivers. On April 17, 2017, VA suspended certain VA-initiated revocations in order 

to carry out this review. 

VA welcomes further discussion of these issues with the Committee. 

Section 3 of this bill proposes to add a new section 3319A to title 38 to authorize 

individuals who are eligible for and participating in a program of comprehensive assistance for family caregivers under 38 U.S.C. § 1720G(a) the opportunity to transfer 

their unused Post-9/11 GI Bill education benefits to their dependents. Veterans may 

complete the transfer of entitlement any time during the 15-year period beginning 

on the date of their last discharge or release from active duty. There is no length 

of service requirement, and the monthly rate of educational assistance would be the 

19 

same rate payable to the individual making the transfer. The Secretary would be 

authorized to prescribe regulations to carry out this section. We note that the Survivors’ and Dependents’ Educational Assistance (DEA) program, or chapter 35, currently offers education and training benefits to eligible dependents of members of 

the Armed Forces and Veterans who have a service-connected disability rated as 

permanently and totally disabling, including individuals who are eligible for a program of comprehensive assistance for family caregivers. Assistance includes up to 

45 months of full-time benefits. 

VA supports the intent of section 3 to take care of caregivers; however, VA cannot 

support this section as written. The transfer of entitlement provisions of the Post9/11 GI Bill were established as a recruitment and retention tool for the uniformed 

services. As such, the Department of Defense (DOD) determines eligibility for transfer of entitlement. If enacted, the proposed legislation would require VA to develop 

procedures to receive requests to transfer entitlement for certain individuals, determine eligibility, and award benefits for the transfer of entitlement program. However, VA notes that Congress would need to identify appropriate offsets for the cost 

of this legislation 

Additionally, under the proposed section 3319A, dependents would receive the 

same rate of payment as otherwise payable to the individual making the transfer. 

This is different than the rate payable for a dependent child using transferred entitlement under section 3319. Currently, a dependent child is awarded benefits as if 

the individual making the transfer were not on active duty. As such, a child is entitled to the monthly housing allowance stipend even though the individual transferring benefits is still on active duty. Under the proposed legislation, a child would 

not be eligible for the housing allowance while the individual described in 38 U.S.C. 

§ 1720G(a)(2) is on active duty. This change would impact the Long-Term Solution 

for processing Post-9/11 GI Bill claims, as VA would have to make system modifications in order to apply a blended set of rules for claims involving transferred education benefits. 

Section 4(a) would amend 37 U.S.C. 439, providing for special compensation for 

members of the uniformed services with catastrophic injuries or illnesses requiring 

assistance in everyday living, by amending the definition of covered members to include those Servicemembers who have a serious injury or illness that was incurred 

or aggravated in the line of duty and are in need of personal care services as a result of such injury or illness. Section 4(b) would further amend section 439 by requiring VA to provide family caregivers of a Servicemember in receipt of monthly 

special compensation the assistance available to family caregivers of eligible Veterans under 38 U.S.C. § 1720G(a)(3)(A), other than the monthly caregiver stipend. 

VA would provide assistance under this subsection in accordance with a memorandum of understanding (MOU) between VA and DOD, and an MOU between VA 

and the Secretary of Homeland Security. VA would be required to ensure that a 

family caregiver in receipt of assistance under this subsection is able to transition 

seamlessly to the receipt of assistance under 38 U.S.C. § 1720G. Section 4(c) would 

require DOD, in collaboration with VA, to ensure that members of the uniformed 

services in receipt of monthly special compensation are aware of the eligibility of 

such members for family caregiver assistance. Section 4(d) would define the term 

‘‘serious injury or illness,’’ which would replace the term ‘‘catastrophic injury or illness,’’ to mean an injury, disorder, or illness that (1) renders the afflicted person 

unable to carry out one or more activities of daily living; (2) renders the afflicted 

person in need of supervision or protection due to the manifestation by such person 

of symptoms or residuals of neurological or other impairment or injury; (3) renders 

the afflicted person in need of regular or extensive instruction or supervision in completing two or more instrumental activities of daily living; or (4) otherwise impairs 

the afflicted person in such manner as the Secretary of Defense or Homeland Security prescribes. 

Regarding section 4 of the bill, VA defers to DOD and the Department of Homeland Security regarding sections 4(a), 4(c), and 4(d). VA does not support section 

4(b) because DOD already provides many of the services and supports available 

under VA’s Program of Comprehensive Assistance for Family Caregivers including 

health care coverage, mental health services, and respite care. Requiring VA to provide services under its program would result in a duplication of efforts. 

Section 5 would authorize the Office of Personnel Management (OPM) to promulgate regulations under which a covered employee, which would include a caregiver 

defined in 38 U.S.C. § 1720G or a caregiver of an individual receiving compensation 

under 37 U.S.C. § 439, to use a flexible schedule or compressed schedule or to telework. VA defers to OPM on this section. 

Section 6 would amend the Public Health Service Act (42 U.S.C. § 300ii), which 

governs lifespan respite care, to amend the definition of ‘‘adult with a special need’’ 

20 

to include a Veteran participating in the family caregiver program under 38 U.S.C. 

§ 1720G(a). It would also amend the definition of ‘‘family caregiver’’ to include family 

caregivers under 38 U.S.C. § 1720G. Furthermore, in awarding grants or cooperative 

agreements to eligible state agencies to furnish lifespan respite care, HHS would be 

required to work in cooperation with the interagency working group on policies relating to caregivers of Veterans established under section 7 of this bill. Section 6 

would also authorize appropriations of $15 million for FYs 2017 through 2022 for 

these grants. VA defers to HHS on this section. 

Section 7 would establish an interagency working group on policies relating to 

caregivers of Veterans and Servicemembers. The working group would be composed 

of a chairperson selected by the President, and representatives from VA, DOD, HHS 

(including the Centers for Medicare & Medicaid Service), and the Department of 

Labor. The working group would be authorized to consult with other advisors as 

well. The working group’s duties would include regularly reviewing policies relating 

to caregivers of Veterans and Servicemembers, coordinating and overseeing the implementation of policies relating to these caregivers, evaluating the effectiveness of 

such policies, developing standards of care for caregiver and respite services, and 

others. Not later than December 31, 2017, and annually thereafter, the working 

group would be required to submit to Congress a report on policies and services relating to caregivers of Veterans and Servicemembers. 

VA generally supports a working group that would provide a forum for analyzing 

and evaluating different issues that family caregivers of Veterans and Servicemembers face. Such a working group would be ideally suited to considering in depth 

the types of issues other provisions of this bill are intended to address and would 

also be able to evaluate emerging issues. 

The Department of Justice advises, however, the bill’s method for selecting members of the working group raises Appointment Clause concerns, which DOJ will convey in greater detail under separate cover. 

We also note several technical concerns with the legislation in terms of the creation of the working group, its role, the potential applicability of the Federal Advisory Committee Act to such a group, and which agency (if any) would be responsible 

for initiating, managing, and funding the working group. We would be happy to discuss these issues with you upon your request. 

Section 8(a) would require VA to conduct a longitudinal study on Servicemembers 

who began their service after September 11, 2001. VA would be required to award 

a grant to or enter into a contract with an appropriate entity unaffiliated with VA 

to conduct the study. Within 1 year of the date of the enactment of the Act, VA 

would be required to submit to the Committees on Veterans’ Affairs a plan for the 

conduct of the study. Not later than October 1, 2021, and not less frequently than 

once every 4 years thereafter, VA would be required to submit to the Committees 

on Veterans’ Affairs a report on the results of the study. Section 8(b) would require 

VA to provide for the conduct of a comprehensive study on Veterans who have incurred a serious injury or illness and individuals who are acting as caregivers for 

Veterans. VA would be required to award a grant to or enter into a contract with 

an appropriate entity unaffiliated with VA to conduct the study. The study would 

be required to include the health of the Veteran and the impact of the caregiver on 

the health of the Veteran, the employment status of the Veteran and the impact 

of the caregiver on that status, the financial status and needs of the Veteran, the 

use by the Veteran of VA benefits, and any other information VA considers appropriate. No later than 2 years after the date of the enactment of this Act, VA would 

be required to submit to the Committees on Veterans’ Affairs a report on the results 

of this study. 

VA does not support section 8, as it would duplicate research in several ongoing 

or in-development studies. DOD and VA have a collaboration on the Millennium Cohort Study, a longitudinal cohort study that has and will continue to produce findings on health issues of multiple eras of military service. The Million Veterans Program creates a repository of clinical and genetic information on Veterans, including 

post-9/11 Veterans, which will provide data for targeted studies on health for years 

to come. VA’s Cooperative Studies Program is developing a study on the respiratory 

health of Gulf War and post-9/11 Veterans. Finally, a study of the life transitions 

of military Servicemembers who served in Iraq or Afghanistan is funded and in 

development. 

VA estimates section 8 would cost $4.3 million in FY 2018, $17.5 million over 5 

years, and $34 million over 10 years, with additional close out expenses of $3.3 million in FY 2028 for a total cost of $37.3 million. 

21 

S. 609, CHIROPRACTIC CARE AVAILABLE TO ALL VETERANS ACT OF 2017

S. 609 would require VA to carry out a program to provide chiropractic care and 

services to Veterans through VA medical facilities at not fewer than 75 VA medical 

centers (VAMC) by not later than December 31, 2018, and at all VAMCs by not later 

than December 31, 2020. It would also modify 38 U.S.C. § 1701 to amend the definition of ‘‘medical services’’ to include chiropractic services, the definition of ‘‘rehabilitative services’’ to include chiropractic services and treatment programs, and the 

definition of ‘‘preventive health services’’ to include periodic and preventive chiropractic examinations and services. 

VA does not support this bill. While adding chiropractic clinics would be consistent with ongoing VA initiatives to improve Veteran access to non-pharmacological pain treatment options, this can be accomplished through VA’s existing 

policies and processes for hiring, credentialing, and privileging chiropractors. Chiropractic treatment has been shown to be clinically effective, cost effective, and in 

high demand by Veterans. Patients who have access to chiropractic care are less 

likely to receive opiate medications and spinal surgeries. VA has already been expanding access to chiropractic services for Veterans. Currently, about half of the 

Level 1a VAMCs have chiropractic clinics, and other facilities offer chiropractic services as well. However, mandating that all VAMCs provide chiropractic services by 

the end of 2020 is unnecessary. The need for more chiropractic clinics across the 

VA health care system can most effectively be determined by continually assessing 

demand for chiropractic services and usage, and adding chiropractic care at those 

sites as warranted to meet demand. We do not believe it would be prudent as a matter of fiscal or clinical responsibility to increase the number of clinics in areas where 

demand is insufficient to support investment in such a clinic. 

We recommend the legislation not amend the definition of preventive health services in section 1701(9). Chiropractic services are provided as part of the medical 

benefits package and are administered based on clinical need, similar to all other 

medical care. It would be inconsistent with the professional standards for other 

medical disciplines and inappropriate to provide periodic and preventative chiropractic examination and services when there are no clinical indications that such 

care is needed. 

VA estimates S. 609 would cost $1.68 million in FY 2018, $60.23 million over 5 

years, and $155.9 million over 10 years. 

S. 681, DEBORAH SAMPSON ACT

S. 681 would amend title 38 of the U.S. Code to seek to improve the benefits and 

services provided by VA to women Veterans in a variety of ways. 

Section 101 would require VA to carry out a 3-year pilot program to assess the 

feasibility and advisability of facilitating peer-to-peer assistance for women Veterans, including those who are separating or are newly separated from service in 

the Armed Forces, with an emphasis on women who suffered sexual trauma during 

their service, have Post Traumatic Stress Disorder or suffer from another mental 

health condition, or are otherwise at risk of becoming homeless. Peer-to-peer assistance would consist of: (1) providing information about VA services and benefits, and 

(2) employment mentoring. VA would be required to commence the pilot program 

no later than January 1, 2018, and conduct outreach to inform women Veterans 

about the pilot program and assistance available under the pilot program. The pilot 

program may include training and the development of training materials for peer 

counselors. Under the pilot program, VA would be required to coordinate with specified government and community organizations to facilitate the transition of women 

Veterans into their communities. VA would also be required, to the degree practicable, to coordinate the pilot program with the Transition Assistance Program carried out under 10 U.S.C. § 1144. 

VA supports section 101. Women Veterans who experienced military sexual trauma, who have mental health conditions, and/or who are at risk of becoming homeless face numerous barriers in seeking and accessing assistance, including through 

VA. Such women Veterans are considered to be among VA’s most clinically complex 

patients. The program that would be required by section 101 has the potential to 

offer meaningful and powerful support to assist these women Veterans in connecting 

with needed services and assistance. Although section 101 would focus the provision 

of information about VA services and benefits and provision of employment mentoring, VA’s experience with its existing peer program suggests that perhaps the 

biggest benefit the program would offer would be role modeling and the instillation 

of hope, as peer specialists have already overcome many of the obstacles the participants are experiencing. 

22 

Section 101 would expand VA’s existing, well-established peer support program, 

which has demonstrated effectiveness in assisting Veterans in outpatient, inpatient, 

and residential mental health settings who are struggling with issues such as Post 

Traumatic Stress Disorder, substance use disorders, serious mental illness, and 

homelessness. These programs include women Veterans, and there are many women 

Veterans currently working as mental health peer specialists in VA. VA believes 

that, if enacted, development of this program would have to proceed carefully given 

the complexity of the clinical needs of the target population. In this context, the 

bill’s proposed creation of a pilot program seems most appropriate. VA estimates section 101 would cost approximately $723,000 in FY 2018 and ap- proximately $3.7 million over the 3 years of the program. 

Section 102 would require VA to expand the capabilities of the Women Veterans 

Call Center of the Department to include a text messaging capability. 

VA supports section 102. To meet the needs of women Veterans, VA needs to provide information and answer questions via methods that are convenient to them. 

The Women Veterans Call Center routinely answers questions by phone and by 

chat, and the logical next step would be to provide convenient and accessible information for women Veterans via text messages. VA understands that women Veterans have expressed interest in such a text messaging capability. VA currently includes a text messaging response capability for its Veterans Crisis Line. VA estimates section 102 would cost approximately $174,000 in FY 2018, $924,000 over 5 years, and $2.0 million over 10 years. 

Section 103 would amend section 1712A of title 38, U.S.C., to authorize VA to furnish counseling in group retreat settings to persons eligible for Readjustment Counseling Services from VA. The reintegration and readjustment services furnished 

would include information on reintegration of the individual into family, employment, and community; financial counseling; occupational counseling; information 

and counseling on stress reduction; information and counseling on conflict resolution; and such other information and counseling as the Secretary considers appropriate. VA would be required to offer women the opportunity to receive such services 

in group retreat settings in which the only participants are women. These readjustment and counseling services would be available upon the request of the individual. 

VA supports section 103. We agree that providing these retreats is beneficial to 

women Veterans, and believe other Veteran and Servicemember cohorts could also 

benefit from this treatment modality. Examples include those who have experienced 

military sexual trauma, Veterans and their families, and families that experience 

the death of a loved one while on active duty. VA estimates that section 103 would cost approximately $467,000 to conduct six retreats in FY 2018, $2.5 million over 5 years, and $5.6 million over 10 years. 

Section 201 would require VA to establish a partnership with at least one nongovernmental organization to provide legal services to women Veterans, focused on 

the 10 highest unmet needs of women Veterans as set forth in the most recently 

completed Community Homelessness Assessment, Local Education and Networking 

Groups for Veterans (CHALENG for Veterans) survey. 

VA supports section 201. The consistency of legal issues arising in VA’s annual 

CHALENG survey strongly suggests a relationship between Veterans’ unmet legal 

needs and the risk of becoming homeless. Legal issues can be a significant barrier 

to resolving homelessness, as these issues may be discovered in background checks 

conducted by landlords and employers, subsequently resulting in rejections for 

leases and employment offers. Additionally, legal issues may result in seizure of income or bank accounts, making it impossible to pay rent, or could result in the suspension of a driver’s license, creating significant challenges for Veterans seeking employment or needing health care. A number of organizations stand ready to serve 

homeless or at-risk Veterans with legal services, but face financial limitations on 

their capacity to do so. The declining accessibility of civil legal aid, combined with 

persistent indicators of unmet need for it among Veterans, indicates that this passive approach is no longer viable. Providing additional funding for legal assistance 

would have a direct bearing on the housing stability of Veteran households. However, male Veterans who are homeless are also in need of legal services, as demonstrated by the CHALENG survey referenced in the proposed legislation. In the 

most recent CHALENG survey, five of the top ten unmet needs amongst both male 

and female homeless Veterans are legal needs, such as evictions/foreclosures, outstanding warrants/fines, child support, restoration of drivers’ licenses, and discharge 

upgrades. Consequently, we recommend the bill be modified to make legal assistance available for both male and female Veterans needing such aid. 

We note, though, that it is unclear what exactly is contemplated by entering into 

a ‘‘partnership’’ with a non-governmental organization. Typically, VA provides 

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ments with non-governmental organizations to provide services, particularly to 

homeless Veterans. However, with only the term ‘‘partnership’’ in the bill, it is unclear that it would provide clear authority for VA to expend Federal funds to support legal services for women Veterans; VA would require more explicit authority 

in that regard. It is also unclear why the provision only mentions ‘‘at least one nongovernmental organization,’’ to potentially exclude other public entities from participation. VA would be happy to discuss this section further with the Committee to 

understand better what is intended, and we would be pleased to provide technical 

assistance upon request. 

Section 202 would amend section 2044(e) of title 38, U.S.C., to authorize additional amounts for the Supportive Services for Veteran Families (SSVF) grant program to support organizations that have a focus on providing assistance to women 

Veterans and their families. Specifically, section 202 would amend paragraph (1)(E) 

to strike 2017 and insert 2016, and add a new subparagraph (F) providing that $340 

million shall be available to carry out the SSVF grant program for each of FYs 2017 

and 2018. In addition, section 202 would add a new paragraph (4) providing that 

not less than $20 million shall be available under paragraph (e)(1)(F) for the provision of financial assistance to organizations that have a focus on providing assistance to women Veterans and their families. 

VA supports section 202. SSVF is designed to rapidly re-house homeless Veteran 

families and prevent homelessness for those at imminent risk due to a housing crisis. Funds are granted to private non-profit organizations and consumer cooperatives that will assist very low-income Veteran families by providing a range of supportive services designed to promote housing stability. In FY 2016, 13.3 percent of 

Veterans served by SSVF were women, the largest such percentage of any homeless 

services program. As women represent only 8 percent of the homeless Veteran population, it is evident that SSVF’s unique blend of services and capacity to serve all 

household members, including dependent children, has been successful at addressing the needs of homeless women Veterans. Further evidence of this success can be 

found in the composition of SSVF enrolled households headed by women Veterans: 

42 percent have dependent children compared to just 18 percent for men. The 

unique needs of these households led by women Veterans have imposed increased 

demands upon SSVF grantees, justifying a commensurate increase in resources to 

organizations providing support to these families. 

The SSVF program supports rapid re-housing interventions. Such interventions 

generally are defined as permanent housing opportunities and, therefore, are likely 

subject to fair housing laws. It may be helpful for the bill to be amended to indicate 

that recipient organizations that have a focus on providing assistance to women and 

their families would still be subject to complying with all Federal fair housing laws. 

VA estimates section 202 would result in additional costs of $20 million for FY 

2017 and FY 2018. 

Section 301 would amend section 1786 of title 38, U.S.C., to extend from 7 to 14 

days coverage of newborns of a woman Veteran receiving delivery care. 

VA supports section 301. A newborn needing care for a medical condition may require treatment extending beyond the current 7 days that are authorized by law. 

Additionally, the standard of care is to have further evaluations during the first two 

weeks of life to check infant weight, feeding, and newborn screening results. Pending these results, there may be a need for additional testing and follow-up. There 

are also important psychosocial needs that may apply, including monitoring stability 

of the home environment or providing clinical and other support if the newborn requires monitoring for a medical condition. Extending care to 14 days would provide 

time for further evaluations appropriate for the standard of care, as well as sufficient time to identify other health care coverage for the newborn. 

VA estimates section 301 would cost $8.8 million in FY 2018, $46.6 million over 

5 years, and $100.6 million over 10 years. 

Section 302 would amend section 1786 of title 38, U.S.C., to clarify that amounts 

paid by VA for medically necessary travel in connection with health care services 

furnished under this section would be derived from the Medical Services appropriations account. 

VA supports the intent of section 302. While most travel of a newborn is not a 

concern as the mother and newborn travel together to appointments, for those 

newborns that require transport from a community hospital to a neo-natal intensive 

care unit by ambulance or helicopter, VA lacks clear authority currently to pay for 

this travel if the care is exclusively for the newborn. However, we are concerned the 

language in this section, which refers only to a source of funding for such travel, 

does not specifically authorize VA to furnish or pay for such transportation expenses 

under 38 U.S.C. § 1786. 

24 

Depending on how the bill is interpreted, we estimate section 302 could cost ap- proximately $587,000 in FY 2018, $3.95 million over 5 years, and $11.86 million 

over 10 years. 

Section 401 would require VA to retrofit existing VA medical facilities with fixtures, materials, and other outfitting measures to support the provision of care to 

women Veterans at such facilities. Within 180 days of enactment, VA would be required to submit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate a plan to address deficiencies in environment of care for 

women Veterans at VA medical facilities. There would be authorized to be appropriated $20 million in addition to amounts otherwise available to VA to carry out 

this section. 

While we appreciate the intent of this provision, we do not support section 401. 

VA currently has the authority, and has made it a priority, to renovate or improve 

its facilities to protect the privacy, safety, and dignity of women Veterans. We are 

concerned that subsection (a), for example, would legislate specific requirements 

that are better addressed through current construction standards. These standards 

are subject to review and revision on a regular basis, which provides flexibility for 

VA to identify and prioritize emerging needs. A statutory requirement would provide no such flexibility. 

We believe the current process for identifying needs and obligating available resources to remedying them is more appropriate and better for Veterans. While we 

currently have authority to, and in fact do, conduct routine evaluations of our facilities to identify deficiencies, we would have no objection to a requirement for a recurring, system-wide assessment to identify deficiencies, similar to the requirement 

contemplated in subsection (b). We recommend that such a review occur only periodically, as some projects can take several years to complete, and that VA be given 

flexibility to take the time it needs to complete these reviews thoroughly and accurately instead of attempting to complete them within a statutory deadline. Such a 

revised requirement to review medical facilities would provide a comprehensive list 

of the specific needs of each facility. We would be happy to discuss our thoughts 

on this further with the Committee and to provide technical assistance as needed. 

Without having completed a current, comprehensive review, we are unable to estimate the cost of section 401. However, we have reason to believe the costs for retrofitting every VA medical facility would be more than the $20 million that would be 

authorized for appropriation under subsection (c). 

Section 402 would require VA to ensure that each VA medical facility has at least 

one full-time or part-time women’s health primary care provider whose duties include, to the extent possible, providing training to other VA health care providers 

on the needs of women Veterans. 

VA fully supports the intent of section 402, but notes that the provision is unnecessary because VA already has authority to employee women’s health primary care 

providers, resources permitting. Currently, approximately 475,000 women Veterans 

receive care at a VA facility, and there are approximately 2,500 designated women’s 

health providers in our health care system. There are 102 VA sites of care without 

a designated women’s health provider. For many sites, there is no justification to 

hire a full-time designated women’s health provider due to the small number of 

women Veterans assigned to the clinic, so instead, VA trains an existing provider 

who will treat both men and women on their panel. There is approximately a 20 

percent turnover each year for women’s health providers, so training new providers 

is a constant need. 

Section 403 would require VA to ensure that the VA Women Veteran Program 

Manager program is supported at each VAMC with a Women Veteran Program 

Manager and a Women Veteran Program Ombudsman, and that such individuals 

receive the proper training to carry out their duties. 

VA supports the intent of section 403 in part. Currently, VHA Directive 1330.01, 

Health Care Services for Women Veterans, requires each VA health care system to 

have a full-time Women Veterans Program Manager. To that extent, the legislation 

is generally consistent with current practice. At the end of FY 2016, VA had 130 

permanent Women Veteran Program Managers, 9 acting managers, and 1 vacancy. 

VA conducts training for these managers both virtually and face-to-face. VA does 

not support the requirement to appoint a Women Veteran Program Ombudsman, as 

we think this would be duplicative of services already available to women Veterans 

through the Patient Advocate Program. 

Section 404 would authorize to be appropriated $1 million for each fiscal year for 

the Women Veterans Health Care Mini-Residency Program to provide opportunities 

for participation by primary care and emergency care clinicians. The $1 million 

would be authorized to be appropriated in addition to amounts otherwise made 

available to VA for purposes of this program. 

25 

VA supports section 404. Today, women are the fastest growing subgroup of U.S. 

Veterans. There are more than 2.2 million women Veterans in the United States, 

and women make up 15.1 percent of today’s active duty military and 18.8 percent 

of National Guard and Reserve forces; the number of women Veterans is expected 

to grow in the future. VHA’s efforts to train clinicians to meet the needs of an ever 

increasing number of women Veterans seeking care has included large scale initiatives to deploy core curricula covering the highest priority topics in women’s health 

care (i.e., ‘‘Women’s Health Mini-Residencies’’). VA has developed four mini-residency programs in recent years and offers mini-residency programs as large, national training conferences each year. Since 2008, VA has provided mini-residency 

training to over 3,000 primary care providers and more recently to approximately 

500 primary care nurses and 250 emergency care providers and nurses. However, 

there is an ongoing need to train additional primary care and emergency care providers in the care of women Veterans to ensure that equitable, high-quality care is 

provided at all VA sites. VA estimates section 404 would cost approximately $920,000 in FY 2018, $4.84 million over 5 years, and $9.84 million over 10 years. 

Section 501 would require VA to collect and analyze data on each VA program 

that provides a service or benefit to a Veteran, to disaggregate such data by sex and 

minority status when the data lend itself to such disaggregation, and to publish the 

data collected and analyzed, except for such cases in which the Secretary determines 

that some portions of the data would undermine the anonymity of a Veteran. 

VA opposes section 501 because we are concerned about the breadth and potential 

implications of this legislation. While VA tracks various demographic information 

about Veterans, it does so only to the extent that these factors are related to eligibility for benefits or services or would assist in the delivery of benefits or services. 

Many programs and services offered by VBA and the National Cemetery Administration (NCA) do not differ in any way based upon gender, race, ethnicity, or other 

factors. Many of VHA’s programs, though, do collect this information, as it is critical 

to providing quality health care. Moreover, many of our existing forms do not collect 

this information, or at least do not require a respondent to report such information 

(for example, for race or ethnicity). If the legislation is intended to require VA to 

collect this information, such an effort would increase costs for Veterans and VA. 

VA could be forced to remove other, more mission-critical collections of information 

to account for these costs in order to reduce the burden on the public. New requirements could also duplicate other reporting requirements if, for example, this section 

also applied to grants programs. 

We would appreciate the opportunity to discuss this section to better understand 

specifically what information this provision is intended to produce. VA would be 

happy to provide such information upon the Committee’s request, but we do not believe a statutory requirement to provide such information would be appropriate. 

VA is unable to develop a cost estimate for this section at this time because we 

are unsure of the intended scope and effect of this provision. 

Section 502 would require VA, not later than 1 year after the date of enactment, 

to submit to the Committees on Veterans’ Affairs of the House of Representatives 

and the Senate a report on the availability from VA of prosthetics made for women 

Veterans, including an assessment of the availability of such prosthetics at each VA 

medical facility. 

VA does not support section 502. VA provides comprehensive prosthetic and sensory aids and services that support and optimize the health and independence of 

all Veterans, regardless of gender. While VA does not oppose providing a national 

report at the end of each FY detailing the types of prosthetic items, quantity of 

items, and amount expended on women Veterans, VA opposes providing an assessment of the availability from VA of prosthetics made for women Veterans, including 

an assessment of the availability of such prosthetics at each medical facility of the 

Department. We oppose this provision because the process for procuring prosthetic 

items for Veterans is initiated by the clinician. Hence, the types of prosthetic items 

cannot be predicted due to prescription dependency on medical necessity. VA could 

produce a retroactive report regarding the type of prosthetic items provided to 

women Veterans, but providing a report on the availability of such items at a specific point in time would not provide meaningful information. 

We estimate that section 502 would not have significant costs. 

Section 503 would require VA to survey its Internet websites and information resources and publish a website that serves as a centralized source of information 

about VA benefits and services available to women Veterans. The website would 

provide women Veterans with information about all services available in the district 

where the Veteran is seeking such services, including the name and contact information of each women’s health coordinator, a list of appropriate staff for other beneVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6621 Z:\ACTIVE\051717.TXT PAULIN
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fits from VBA and NCA, and any other information the Secretary considers appropriate. VA would be required to update the information on the website at least once 

every 90 days. Outreach conducted under 38 U.S.C. § 1720F(i) would include information about the website. VA would be directed to derive funds for this section from 

the amounts made available to publish VA internet websites. 

VA supports the intent of section 503, but the provision is unnecessary because 

VA can accomplish the objectives of the provision under existing authority. VA already has in place for each medical center a website specific to women Veterans 

that highlights the services available and a point of contact at the facility. In addition, VA offers two national websites that offer facility locators on the site. The 

website required by section 503 would complement this information and could be 

more accessible to Veterans. 

Section 504 would express the sense of Congress that the Secretary should change 

the motto of VA to be more inclusive. VA defers to Congress in terms of expressing 

its sense on policy matters. 

S. 764, VETERANS EDUCATION PRIORITY ENROLLMENT ACT OF 2017

S. 764 would add a new section, 3680B, to subchapter II of chapter 36 of title 38 

U.S.C. that would prohibit the Secretary or a State Approving Agency (SAA) from 

approving a program of education offered by an institution that allows certain students priority enrollment, unless the institution allows ‘‘covered individual[s]’’ to enroll at the earliest possible time pursuant to such a priority enrollment system. 

‘‘Covered individual[s]’’ would be those individuals using educational assistance 

under chapters 30, 31, 32, 33, or 35 of title 38, U.S.C.; or under chapter 1606 or 

1607 of title 10, U.S.C. 

VA supports the intent of S. 764 but has some concerns. As currently written, the 

proposed legislation would not impact programs that are ‘‘deemed approved’’ as per 

the provisions of 38 U.S.C. § 3672(b)(2)(A), which includes accredited standard college degree programs at public and private, not-for-profit institutions of higher 

learning. If the intent is to have the requirement apply to programs at all types of 

institutions, then VA recommends inserting a conforming amendment to add reference to the new proposed section 3680B to the list of requirements affecting 

‘‘deemed approval’’ section 3672(b)(2)(A) of title 38, U.S.C. 

In addition, while the proposed amendment prohibits the Secretary or a SAA from 

approving programs that do not meet the specified criteria, it does not clearly require the disapproval of non-compliant programs that were approved prior to enactment or that cease to be compliant after approval. If the disapproval of non-compliant programs is intended to be a requirement as well, then we would recommend 

that this be specified in the bill as well. In the event that program disapproval is 

desired, VA would also suggest a future effective date of 12 months from the date 

of enactment in order to allow time for schools to change their policies and, thus, 

minimize the disruption of the educational pursuits of beneficiaries that are currently enrolled in such programs. 

VA supports the intent of S. 764, and is willing to provide technical assistance as 

needed to ensure that the bill has the intended outcome. 

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

S. 784, VETERANS’ COMPENSATION COST-OF-LIVING ADJUSTMENT (COLA) ACT OF 2017

S. 784 would require the Secretary to increase the rates of disability compensation 

and Dependency Indemnity Compensation by the same percentage as any increase 

to Social Security benefits effective on December 1, 2017. The bill would also require 

VA to publish these increased rates in the Federal Register. VA strongly supports this bill because it would express, in a tangible way, this 

Nation’s gratitude for the sacrifices made by our service-disabled Veterans and their 

surviving spouses and children. The bill would also ensure that the value of these 

benefits keeps pace with increases in consumer prices. 

VA estimates the cost of this bill to be $1.3 billion in FY 2018, $8.1 billion over 

5 years, and $17.5 billion over 10 years. However, the cost of these increases is included in VA’s baseline budget because VA assumes that Congress will enact a costof-living adjustment each year. Therefore, enactment of the bill would not result in 

additional costs, beyond what is included in VA’s baseline budget. 

S. 804, WOMEN VETERANS ACCESS TO QUALITY CARE ACT

S. 804 would seek to improve the provision of health care for women Veterans by 

VA through several different provisions. 

Section 2 would require VA to establish standards to ensure that all VA medical 

facilities have the structural characteristics necessary to adequately meet the ‘‘genVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6621 Z:\ACTIVE\051717.TXT PAULIN
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der specific’’ health care needs, including privacy, safety, and dignity, of Veterans 

at these facilities. VA would be required to promulgate regulations within 180 days 

of the date of enactment to carry out this section. Within 270 days of the date of 

enactment, VA would be required to integrate these standards into the prioritization 

methodology used by VA with respect to requests for funding of major medical facility projects and major medical facility leases. Not later than 15 months after the 

date of enactment, VA would be required to report to the Committees on Veterans’ 

Affairs of the House and Senate on the standards established under this section, 

including a list of VA medical facilities that fail to meet the standards; the minimum total cost to ensure that all VA medical facilities meet such standards; the 

number of projects or leases that qualify as a major medical facility project or major 

medical facility lease; and where each such project or lease is located in VA’s current project prioritization. 

VA appreciates the intent of section 2, but we do not believe it is necessary given 

other actions we are already taking. For example, in 2012, VA developed and published a Space Planning Criteria Chapter for Women Veterans Clinical Service, 

which identifies space standards for the delivery of primary care services to Women 

Veterans Clinical services within VA. These space standards support care for 

women Veterans from basic primary care to ultrasound and mammography services. 

A standard examination room plan for Women Veterans Clinics was developed including access to bathroom facilities directly connected to the examination room and 

including such details as privacy curtains, locking hardware, and exam table placement. VA’s Medical/Surgical Inpatient Units and Intensive Care Nursing Units 

Design Guide, developed in 2011 and 2012, addresses the needs of women Veterans. 

These standards are available online at: www.cfm.va.gov/TIL. Since 2012, the health 

care needs of women Veterans have been an instrumental consideration in the development and update of the standards that are utilized in the planning and design 

of all VA facilities to support the delivery of Veterans’ health care. Moreover, it is 

unclear why VA would need to promulgate regulations for this section. Absent the 

requirement in the bill, VA would not need to promulgate regulations. VA’s 

construction standards have been established through policy for years, and revising 

our standards through this process is less resource intensive and faster than formal 

regulations. 

Section 3 would require VA, not later than 60 days after the date of enactment, 

to establish policies for environment of care inspections at VAMCs. These inspections would include an alignment of the requirements for such inspections with the 

women’s health VHA Handbook, a requirement for the frequency of such inspections, and a delineation of the roles and responsibilities of staff at the VAMC who 

are responsible for compliance. It would also require the Secretary to certify to the 

Committees on Veterans’ Affairs of the House and Senate that the policies required 

under this section have been finalized and disseminated to VAMCs. 

VA also appreciates the intent of section 3 but does not believe this provision is 

necessary because VA established a Comprehensive Environment of Care (CEOC) 

Program policy in February 2016. VHA Directive 1608, Comprehensive Environment 

of Care (CEOC) Program, outlines the requirements of a CEOC Program and assigns responsibilities and accountability from VA Central Office, through the Veterans Integrated Service Network (VISN), to the medical centers, detailing the requirements for leadership involvement, routine environment of care rounds, discipline-based standardized checklists, and a requirement to identify and track deficiencies through resolution. VHA Directive 1608 is aligned with VHA Directive 

1330.01, Health Care Services for Women Veterans, and VA believes this meets the 

intent of the proposed language in the bill. We note that the bill specifically refers 

to a ‘‘women’s health handbook,’’ but the current form of this policy is in a Directive. 

We recommend the language be revised to simply refer to a ‘‘policy,’’ rather than 

either a ‘‘handbook’’ or a ‘‘directive’’ to avoid possible confusion. 

Section 4 would require the Secretary to use health outcomes for women Veterans 

furnished hospital care, medical services, and other health care by VA in evaluating 

the performance of VAMC directors. It would also require VA to publish on an Internet Web site information on the performance of directors of VAMCs with respect to 

health outcomes for women Veterans, including data on health outcomes pursuant 

to key health outcome metrics, a comparison of how such data compares to data on 

health outcomes for male Veterans, and explanations of this data to help the public 

understand this information. 

VA already is focused on tracking access and outcomes for women Veterans, and 

on addressing disparities in care, and thus we do not believe section 4 is necessary. 

VA has a robust method for evaluating ambulatory care using the Healthcare Effectiveness Data and Information Set (HEDIS) measures and inpatient care quality 

using The Joint Commission ORYX® measure set. VA also evaluates Veteran asVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 Z:\ACTIVE\051717.TXT PAULIN
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sessments of their health care experiences by administering the Consumer Assessment of Healthcare Providers and Systems survey that focuses on inpatient and outpatient services. Both the clinical quality measures and Veteran experience measures are collected for men and women, so that comparative analyses and reporting 

are possible. These results are used to assess individual medical center Directors 

and to compare facility results to internal and external benchmarks. Results also 

are posted on a publicly available internet Web site. 

Section 5 would seek to increase the number of obstetricians and gynecologists 

employed by VA. Paragraph (a) of this section would require, not later than 18 

months after enactment, that VA ensures that every VAMC have a full-time obstetrician or gynecologist. 

VA supports the intent of section 5(a) and already is taking steps to expand access 

to gynecological care throughout VA. Currently, approximately 76 percent of VAMCs 

have a gynecologist on staff, and we plan to add this service at roughly another 20 

facilities. This will ensure that all facilities with a surgical complexity of intermediate or complex will have a gynecologist on staff. At facilities with a surgical 

complexity designation of standard or less, we do not believe that there is sufficient 

patient demand to support a full-time gynecologist or obstetrician. For Veterans 

needing these services at these facilities, VA uses its community care authorities to 

ensure these Veterans are able to access care. Moreover, in some areas of the country, particularly in smaller or more rural areas, VA faces recruitment challenges in 

hiring new staff, and we anticipate we would face similar challenges if this legislation were enacted. 

Paragraph (b) of section 5 would require VA, within 2 years of enactment, to carry 

out a pilot program in not fewer than three VISNs to increase the number of residency program positions and graduate medical education positions for obstetricians 

and gynecologists (OB-GYN) at VA medical facilities. 

VA supports the intent of paragraph (b) of section 5, and would respectfully submit that VA already has this authority and is using it. VA currently funds 31 OBGYN residency positions across 40 sites. Family Medicine also provides many aspects of gynecological care that meet the needs of women Veterans for which VA 

funds 154 residency positions at 81 VAMCs. We would welcome Committee feedback 

as to how we could improve these efforts. While gynecologic services are widely 

available across VA, the limited number of women Veterans seeking care and the 

scope of services at some sites makes it difficult to provide the educational resources 

to fulfill the accreditation needs for training in obstetrics and gynecology. This limits an approach to national increases in these residency positions. A three VISN 

pilot program would be limited in its ability to start within 2 years given the need 

to develop relationships with residency programs in this area, as well as understand 

the needs of women Veterans in those VISNs. 

Section 6 would require VA to develop procedures to share electronically certain 

information with State Veterans agencies to facilitate the furnishing of assistance 

and benefits to Veterans. The information would include military service and separation data, a personal email address, a personal telephone number, and a mailing 

address. Veterans would be able to prevent their information from being shared 

with State Veterans agencies by using an opt-out process to be developed by VA. 

VA would be required to ensure that the information shared with State Veterans 

agencies is only shared by such agencies with county government Veterans service 

offices for such purposes as VA would determine for the administration and delivery 

of assistance and benefits. 

VA believes strong relationships with State Veterans agencies, as well as outreach 

to Veterans, are critical. However, we do have concerns with this section. The information required, we believe, would have Privacy Act implications. Also, managing 

opt-out requests would require additional resources, although the amount cannot be 

projected with specificity. We would be glad to discuss with the Committee VA’s collaborative efforts with State Veterans agencies on outreach and how the goals of 

section 6 could be fulfilled while avoiding the concerns expressed above. 

Finally, section 7 would direct VA to carry out an examination of whether VAMCs 

are able to meet the health care needs of women Veterans and to submit this report 

within 270 days of enactment. Again, we would respectfully submit that VA has this 

authority, and is using it in this way. VA fully agrees with the importance of assessing access for women Veterans and implementing comprehensive primary care at all 

sites. We are already tracking wait times, access, the number of designated women’s 

health providers at each site, recruitment efforts, and staff training. VA believes 

that the additional examination required by this section is unnecessary as it would 

include examining sites that we know are performing well. VA has begun efforts to 

use evaluation data to work with those sites that have challenges to assist them 

in improving services for women Veterans. Since 2010, VA has assessed the impleVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 Z:\ACTIVE\051717.TXT PAULIN
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mentation of comprehensive women’s health through national site visits. Women’s 

Health Services contracted with a private company to develop the methodology, 

metrics, and tools needed to evaluate Women’s Health Programs (WHP) across VA. 

By end of FY 2016, 100 percent (140) of the VA health care system WHPs comprehensive evaluations were completed. Additionally, VA monitors access, including 

wait time data, for women Veteran appointments. VA also has evaluated disparities 

in health outcomes since 2008, and we lead the Nation in reducing health disparities for women Veterans. 

VA estimates a contract to conduct the examination and prepare the report re- quired would cost approximately $10.3 million. 

S. 899, VA TRANSITION IMPROVEMENT ACT

VA supports S. 899, which would require VA to establish a leave transfer program 

for the benefit of health care professionals appointed under 38 U.S.C. § 7401(1) and 

authorize the establishment of a leave bank program for the benefit of such health 

care providers. Inclusion of this provision would ensure that disabled Veteran employees performing health care services in Title 38 occupations have the same opportunity to schedule medical appointments and receive medical care related to their 

disability without being charged leave as employees in Title 5 and Hybrid Title 38 

occupations. The bill would also provide disabled Veteran employees an opportunity 

to undergo medical treatments for their disabilities without having to consider their 

leave balances or work-life issues to obtain such services outside of scheduled work 

hours. 

It is projected that VA will continue to hire Veterans with service-connected disabilities of 30 percent or greater into Title 38 occupations at a rate that mirrors the 

current percentage (3.5 percent) of employees occupying such positions within VHA. 

VA estimates that this legislation would be cost neutral as it does not increase fulltime employee equivalent levels or salaries of the employees hired into the positions. 

S. 1024, VETERANS APPEALS IMPROVEMENT AND MODERNIZATION ACT OF 2017

Modernizing the appeals process is a top priority for VA. It is more critical than 

ever that we continue to work together to transform an appeals process that is failing Veterans. There are currently over 470,000 appeals pending in VA, some 40 percent more than were pending only 5 years ago. Those Veterans are waiting much 

too long for answers on their appeals. Although Veterans wait an average of only 

116 days for a decision on VA disability compensation claims, they are waiting an 

average of 3 years for their appeal to be resolved. Appeals that go all the way to 

the Board of Veterans’ Appeals (Board) take even longer—an average of 6 years to 

resolve. A system that can deliver an answer on an initial claim in 116 days, but 

takes many years to resolve an appeal is a system that is not working for Veterans. 

If appeals reform is not passed, these already unacceptable wait times will only get 

worse. 

S. 1024 would provide much-needed comprehensive reform for the VA appeals 

process to ensure that Veterans receive a timely, VA decision on their appeal. It 

would replace the current, lengthy, complex, confusing VA appeals process with a 

new appeals process that makes sense for Veterans, their advocates, VA, and stakeholders. VA supports the intent of S. 1024; however, we have some concerns with 

certain provisions in S. 1024 as drafted, such as the provisions that would remove 

finality from the process upon judicial review and require the Secretary to certify 

that he has the resources necessary to timely process appeals in the future. We look 

forward to working with the Committee to address those concerns. The Department 

stands committed to getting appeals reform accomplished for Veterans this year. 

The current VA appeal process, which is set in law, is broken and provides Veterans a frustrating experience. In the current process, appeals have no defined endpoint. Veterans and VA adjudicators are instead engaged in continuous evidence 

gathering and repeated re-adjudication of the same appeal. This cycle of evidence 

gathering and re-adjudication means that appeals often churn for years between the 

Board and the agency of original jurisdiction (AOJ) to meet complex legal requirements, with little to no benefit flowing to the Veteran. The multiple layers of adjudication built into the current appeals process exacerbate delays even more. Jurisdiction is also split between the Board and the AOJ, meaning that Veterans often 

don’t fully understand where in VA their appeal is located any given time. All of 

this has resulted in a system that is complicated, inefficient, ineffective, and confusing. Due to this complex and inefficient process, Veterans wait much too long for 

final resolution of their appeal. 

Without significant legislative reform, wait times and the cost to taxpayers will 

only increase. It was this stark reality that led to VA’s unprecedented level of colVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 Z:\ACTIVE\051717.TXT PAULIN
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laboration with stakeholders to design a modernized appeals process. The new appeals process contained in S. 1024 would provide Veterans an appeals decision that 

is timely, transparent, and fair. The new process is not just a VA idea. It is the 

product of over a year of collaboration between the Board, Veteran Benefits Administration, Veteran Service Organizations, the private bar, and other stakeholders. 

The new appeals process we designed is simpler and easier for Veterans to understand. It provides a streamlined process focused on early resolution of appeals, and 

generating long-term saving for taxpayers. VA is grateful to all of the stakeholders 

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

S. 1024 would empower Veterans by providing them with the ability to tailor the 

process to meet their individual needs—choice that is not available in the current 

appeals process. Veterans in the new process can pursue one of three different 

lanes. One lane would be for review of the same evidence by a higher-level claims 

adjudicator at the AOJ. One lane would be for submitting new and relevant evidence with a supplemental claim at the AOJ, and one lane would allow Veterans 

to take their appeal directly to a Veterans Law Judge at the Board. In this last 

lane, the intermediate and duplicative steps currently required by statute to receive 

Board review, such as the Statement of the Case and the Substantive Appeal, would 

be eliminated. Furthermore, hearing and non-hearing options at the Board would 

be handled on separate dockets so these distinctly different types of work can be 

managed more efficiently. 

As a result of this new design, the AOJ would be the claims adjudication agency 

within VA and the Board would be the appeals agency. This design would remove 

the confusion caused by the current process, in which a Veteran initiates an appeal 

in the AOJ, but the appeal is really a years-long continuation of the claim development process. It would ensure that all claim development occurs in the context of 

a supplemental claim filed with the AOJ, which the AOJ can quickly adjudicate, 

rather than in an appeal. 

Currently, VA has a statutory duty to assist the Veteran in the development of 

a claim for benefits. This duty includes obtaining relevant Federal records, obtaining 

other records identified by the claimant, and providing a medical examination in 

certain circumstances. The new design contains a mechanism to correct any duty 

to assist errors by the AOJ. If the higher-level claims adjudicator or Board discovers 

an error in the duty to assist that occurred before the AOJ decision being reviewed, 

the claim/appeal would be returned to the AOJ for correction unless the claim/appeal could be granted in full. However, the Secretary’s duty to assist would not 

apply to the lane in which a Veteran requests higher-level review by the AOJ or 

review on appeal to the Board. The duty to assist would, however, continue to apply 

whenever the Veteran initiated a new claim or supplemental claim. Moreover, 

S. 1024 would require VA to modify its claims decision notices to ensure they are 

clearer and more detailed. This notice would help Veterans and their advocates 

make informed choices as to which a review option makes the most sense. 

The disentanglement of processes achieved by S. 1024 would be enabled by one 

crucial innovation. In order to make sure that the Veteran fully understands the 

process and can adapt to changed circumstances, a Veteran who is not fully satisfied 

with the result of any lane would have 1 year to seek further review while preserving an effective date for benefits based upon the original filing date of the claim. 

For example, a Veteran could go straight from an initial AOJ decision to an appeal 

to the Board. If the Board decision was not favorable, but helped the Veteran understand what evidence was needed to support the claim, then the Veteran would have 

1 year to submit new and relevant evidence to the AOJ in a supplemental claim 

without fearing an effective-date penalty for choosing to go to the Board first. The 

robust effective date protections built into the draft bill enhance Veterans’ rights 

and ensure that Veterans and their advocates cannot make a wrong turn in navigating the new appeals process. 

Beyond stopping the flow of appeals into the existing broken system, S. 1024 provides opt-ins to allow as many Veterans as possible to benefit from the streamlined 

features of the new process. A claimant who receives a decision after enactment and 

prior to the applicability date of the law could elect to participate in the new process, which would give VA discretion regarding whether to apply the new process to 

the claimant. However, while subsection (x)(3) envisions the possibility of processing 

individual claimants who opt-in under the new system prior to the applicability 

date, as a practical matter, VA cannot realistically offer the new system on a piecemeal basis before the entire new system is ready, which in turn depends on the certification date. Therefore, in practice, only Veterans who receive notice of decision 

within the 1 year period prior to the effective date of the law would be able to optin. Veterans who received an earlier notice of decision would not be able to submit 

a timely appeal into the new process within 1 year of their decision. Also, a claimant 

31 

who receives a statement of the case or supplemental statement of the case in a 

legacy appeal could elect to participate in the new appeals system. 

While VA strongly supports the fundamental features of the new process outlined 

in S. 1024, we have concerns with some aspects of the proposed legislation as presently drafted, as discussed below. 

VA opposes a substantive change that would make the effective date protection 

afforded by the filing of a supplemental claim within 1 year of a decision applicable 

to supplemental claims filed within 1 year of a decision by the United States Court 

of Appeals for Veterans Claims (CAVC). This provision goes against an essential 

construct of the new process, which encourages Veterans to stay within VA to 

achieve the earliest resolution possible. It would be unfortunate to eliminate sources 

of unnecessary churn in VA, only to create new incentives for endless appeal at the 

CAVC. To the greatest extent possible, judicial review should be for substantive 

legal disagreements between a claimant and VA, not for record development questions that can easily be obviated simply by pursuing additional development and assistance in the supplemental claim lane. 

With regard to applicability and the proposed certification of the readiness to 

carry out the new system by the Secretary, the requirement that the Secretary submit a statement to Congress that he has the resources necessary to timely operate 

the system is problematic, given the annual budget cycle. While VA will be prepared 

to implement the new system at the end of the 18-month period prescribed in 

S. 1024 and shut off the flow of appeals to the broken process, the Secretary cannot 

predict the outcome of future budget cycles. Therefore, the Secretary will only be 

able to make a certification regarding resources available at the time of the certification and not into the future. 

Moreover, if S. 1024 was enacted with this provision, it would create significant 

uncertainty in implementing the opt-in component of the law. We note that S. 1024 

provides VA discretion to apply the new process to claimants who elect to participate in the modernized appeals system at any time after enactment and before the 

applicability date. The applicability date in S. 1024 is necessarily indeterminate because it depends upon when the Secretary will be able to certify under subsection 

(x)(1) that VA has the resources it needs to operate the modernized system; it is 

not possible to know when the one year period allowing claimants the functional 

ability to elect begins. As previously noted, although S. 1024 does not set the 1 year 

period for opt-ins, current law provides that claimants must submit a notice of disagreement within 1 year of a decision, and it will not be administratively feasible 

to provide claimants with the new system on a piecemeal basis before the administrative and regulatory work necessary to stand up the new system is complete. In 

order to provide Veterans with meaningful choice in how their appeal is handled, 

we must be able to inform them as to whether they will have the option of appealing 

into the new system. We would be happy to continue working with the Committee 

to discuss alternative approaches to the applicability date of the law. 

S. 1024 also adds notice requirements to higher-level review and Board decisions, 

for the purpose of explaining whether the claimant submitted evidence that was not 

considered, and if so, what the claimant or appellant can do to have that evidence 

considered. VA views this addition as unnecessary, as a claimant who had elected 

either a higher-level review or an appeal to the Board would have already received 

notice addressing all lane options in the new process, including restrictions on the 

submission of new evidence. They would also be aware of the option to file a supplemental claim, where they would have the opportunity to submit new evidence for 

consideration by the AOJ. Additionally, the issue of how to handle improperly submitted evidence is an administrative matter that would best be determined by VA. 

S. 1024 also includes reporting requirements that we believe could be adjusted to 

be less onerous but still provide valuable information to the Congress. We look forward to working with the Committee to better shape these provisions in a manner 

that achieves adequate protection for Veterans and robust information for Congressional oversight, while at the same time using administrative resources wisely. 

VA stands ready to provide additional technical assistance on several other aspects of the proposed legislation. We appreciate any opportunity to work with Congress to further refine this legislation. 

S. 1094, DEPARTMENT OF VETERANS AFFAIRS ACCOUNTABILITY AND WHISTLEBLOWER

PROTECTION ACT

S. 1094, the Department of Veterans Affairs Accountability and Whistleblower 

Protection Act of 2017, would amend and create a number of new authorities regarding the Department of Veterans Affairs (VA) employment practices. 

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VA strongly supports the aims of this bill, which would improve our oversight and 

investigation of whistleblower disclosures and retaliation complaints, and allow for 

more timely disciplinary action against employees whose misconduct or poor performance undermines Veterans’ and the public’s trust in VA care and services. We 

deeply appreciate the Committee’s efforts to understand and meet VA’s needs for 

greater flexibility in dealing with under-performing and misbehaving employees. We 

look forward to continuing to work with the Committee, through the technical assistance process, to resolve a few concerns we have with the bill, including constitutional ones. The Department of Justice (DOJ) has informed us that it also looks forward to working with the Committee in the technical assistance process, to address 

these constitutional concerns. DOJ believes that this can be done without impeding 

the aims of the bill. 

By our reading, the bill addresses five different policy areas, sometimes in different sections. For ease of discussion, we will summarize our understanding of each 

of these sections individually, then relay VA’s position on these policy areas in 

general. 

Section 101 would establish a new Office of Accountability and Whistleblower Protection, under the leadership of a new Assistant Secretary reporting directly to the 

Secretary. Among other things, the new office would be responsible for receiving and 

investigating whistleblower disclosures, and for investigating allegations of misconduct, retaliation and poor performance involving Senior Executives, other specified management officials, and supervisors who are alleged to have retaliated 

against employees for making whistleblower disclosures. The new Assistant Secretary would also be responsible for recommending disciplinary action against individuals who are found to have committed misconduct, including whistleblower 

retaliation. 

This section would also require the new office to track recommendations made by 

VA’s Inspector General and by external oversight bodies such as the Office of Special Counsel and the Comptroller General, and to provide annual reports to this 

Committee and to the House Committee on Veterans’ Affairs on matters within its 

responsibility. 

Section 102 would strengthen protections for whistleblowers by holding supervisors accountable for promoting such protections and by requiring VA to provide 

training to all employees on whistleblower processes and protections. 

Section 103 would require VA to report to this Committee and the House Committee on Veterans’ Affairs on methods used to investigate employees, with an eye 

toward ensuring that investigations are not used to retaliate against whistleblowers. 

Section 201 would provide a new framework for removal, demotion, suspension, 

reassignment, or reprimand of Senior Executives for misconduct or poor performance. This section would set timelines for pre-decisional due process and provide for 

post-discipline appeals through an internal grievance process and/or appeal to a 

U.S. District Court. 

Section 202 would provide a new framework for removal, demotion, or suspension 

of employees who are not in the Senior Executive Service. Like section 201, section 

202 would set timelines for pre-decisional process and authorizes post-discipline appeals. This section would provide for appeals to the Merit Systems Protection Board, 

or for bargaining unit employees through the negotiated grievance process, and 

would specify that such appeals would be subject to a more deferential burden of 

proof and penalty review than are applicable under current law. 

Section 203 would provide for reduction of retirement benefits for an employee 

who has been removed from service (or retired with a proposed removal pending) 

and is convicted of a felony that influenced the employee’s performance while employed at VA. This section seeks to provide for pre-decisional due process and for 

post-decisional appeal to the Office of Personnel Management (OPM). 

Section 204 would authorize recoupment of a bonus or award paid to an employee 

who engaged in misconduct or poor performance prior to receiving the award, where 

the Secretary determines the award or bonus would not have been paid had the misconduct or poor performance been known prior to payment. Like section 203, this 

section seeks to provide for pre-decisional due process and for post-decisional appeal 

to OPM. 

Section 205 would provide for recoupment of relocation expenses that were authorized following an act of fraud or malfeasance that influenced the authorization. 

Like the prior sections, this section seeks to provide for internal pre-decisional due 

process and an external post-decision appeal to OPM. We have a small technical 

edit to offer on this section and will provide that separately. 

Section 206 would reduce the pre-decisional notice period from 14 days to 10 days 

for actions against supervisors who are found to have engaged in whistleblower 

retaliation. 

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Section 207 would add Medical Center Directors and Network Directors to our 

title 38 direct hire authority. 

Section 208 would align pre-decisional timelines for title 38 adverse actions to 

match the timelines in sections 201 and 202. This section would also revamp the 

appeal process for title 38 disciplinary actions that do not involve issues of professional conduct or competence. 

Section 209 would require periodic training for supervisors on whistleblower 

rights, motivating/managing/rewarding employees, and managing poor performers. 

Section 210 would require the Secretary to report to this Committee, and to the 

House Committee on Veterans’ Affairs, on the impact of sections 201–208 on Senior 

Executive morale, engagement, hiring, promotion, retention, productivity, and 

discipline. 

Section 211 would require the Secretary to measure, collect, and report information on the outcomes of disciplinary actions taken under these new authorities. 

As noted, the bill addresses five different policy areas: whistleblower protections, 

accountability, recoupment authorities, hiring authorities, and reporting requirements. Each of these will be discussed below in turn. By way of technical assistance, 

we note that the current wording of section 308(a)(1) of title 38 limits VA to seven 

Assistant Secretaries. That would need to be amended to authorize eight Assistant 

Secretaries to include the new position established by this bill. 

In general, VA is supportive of the sections regarding whistleblower protections 

and of the Committee’s assistance in strengthening whistleblower protections and 

in enhancing VA’s oversight of whistleblower disclosures. 

Regarding the accountability provisions, VA is strongly supportive of these sections, which afford the Secretary much-needed flexibilities to hold employees accountable and to take necessary actions more quickly and to sustain well-founded 

actions on appeal. We believe these authorities would fix some of the legal problems 

we had exercising the authority contained in the Veterans Access, Choice, and Accountability Act of 2014, and would provide the Secretary with the authority needed 

to take timely, decisive action. 

Several sections of the bill would also address recoupment of pay or benefits. We 

appreciate the care with which the Congress has drafted these to be narrowly tailored, and to apply only in cases of egregious misconduct. 

We strongly support the provisions concerning direct hiring authority, which 

would provide the Secretary with sorely needed flexibility in hiring top talent into 

these critical leadership positions. We look forward to working with the Committee 

to fill in some of the blanks around this new authority, such as what pay authority 

would apply to these positions and whether and how Senior Executives hired under 

other authorities could move into or out of these roles. 

Finally, several sections of the draft bill would require VA to provide detailed reports to this Committee, and to the House Committee on Veterans’ Affairs, on matters relating to whistleblower protections, employee accountability, and Senior Executive recruitment and management. While we have some concerns about the administrative burden imposed by these requirements, we understand the Committee’s interest in such information. 

DRAFT, VETERAN PARTNERS’ EFFORTS TO ENHANCE REINTEGRATION (PEER) ACT

The draft bill would require the Secretary to phase in and conduct a program 

whereby peer specialists would be included in patient aligned care teams at VAMCs 

to promote the use and integration of mental health services in a primary care setting. Not later than 180 days after the date of enactment, this program would have 

to be established at not fewer than 10 VAMCs. By not later than 2 years from the 

date of enactment, it would have to be in place at not fewer than 25 VAMCs. Under 

the bill, the Secretary would be directed to consider specified factors when selecting 

sites for this program, but, not fewer than five would have to be established at VA 

designated Polytrauma Centers, and not fewer than ten would have to be established at other VAMCs. The draft bill would also require that all peer specialist programs established under this mandate: (1) ensure that the needs of female Veterans 

are considered and addressed; and (2) include female peer specialists. Finally, this 

measure would establish initial, periodic, and final Congressional reporting requirements, as detailed in the bill. 

VA has no objection to the bill, but notes that it is not necessary because VA already has the authority to execute this program. However, we would require additional funding to implement it. We also note that a few technical changes are needed for clarity. This legislation, if enacted, would complement VA’s ongoing pilot program (commenced in 2014) whereby peer support through peer specialists has been 

extended beyond traditional mental health sites of care to include Veterans receivVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6621 Z:\ACTIVE\051717.TXT PAULIN
34 

ing mental health care in primary care settings. Under the pilot program, trained 

peer specialists work with VA primary care teams to, in general terms, help improve 

the health and well-being of other Veterans being treated in VA primary care settings. All 25 sites now have assigned one peer specialist to work in Primary Care 

at least 10 hours per week. The first cohort of eight sites began seeing Veterans 

in primary care in January 2016, the second cohort of eight began in August 2016, 

and the final nine sites began April 1, 2017. To date, the peers in this program have 

provided services to more than 3,000 Veterans. The response from Veterans, peers, 

and primary care clinicians has been overwhelmingly positive. Sites made a 1- year 

commitment to participate in the project, and VA will have a formal program evaluation based on clinical and other outcomes in 2018. It is likely that some of the 

existing sites will not be able to continue the pilot program after FY 2017 without 

additional funding. 

The bill specifies program participation of female peer specialists. I am pleased 

to report that women peer specialists are already well represented, with 16.2 percent of the national peer specialist workforce being women. While at first glance 

16.2 percent may seem a low rate, please bear in mind that this figure is higher 

than the percentage of Veterans seeking services through VA who are women. We 

do recognize, however, that the current number of women Veteran peer specialists 

in the pilot is unevenly distributed across the country, with some VAMCs having 

greater difficulty than others in attracting qualified applicants. 

Also, it is unclear if the peers will address substance use disorders under the umbrella of their mental health duties. Given the comorbidity of these issues, the need 

for integration of substance use disorder identification and care, the need for overdose prevention and links as needed to Medication Assisted Treatment for opioid 

use disorders, and the need to increase the numbers of Veterans achieving longterm recovery, we recommend that this be clarified and, if possible, included. 

We estimate this bill would cost $4.94 million in FY 2018, $25.99 million over 5 

years, and $55.48 million over 10 years. 

DRAFT, SERVING OUR RURAL VETERANS ACT OF 2017

The draft bill would amend 38 U.S.C. § 7406(c) to authorize training and supervision of residents at facilities operated by an Indian tribe, a tribal organization, or 

the Indian Health Service, federally-qualified health centers, and community health 

centers. It would also direct VA, in consultation with the Director of the Indian 

Health Service, to carry out a pilot program to establish graduate medical education 

residency training programs at such facilities and to affiliate with established programs. VA would be required to carry out the pilot program at not more than four 

covered facilities and would carry out the pilot program for a period of 8 years beginning on the date that is 180 days after the date of enactment. VA would be required to reimburse certain costs associated with the program and to enter into 

agreements with individuals participating in the pilot program under which they 

would agree to serve a period of 1 year at a covered facility (including a VA facility) 

service for each year in which the individual participates in the pilot program. The 

bill would provide terms related to breach of the agreement, loan repayment, and 

concurrent service. VA would be required to submit a report to the Committees on 

Veterans’ Affairs of the House of Representatives and the Senate not later than 3 

years before the termination of the pilot program on the feasibility and advisability 

of expanding the pilot program to additional locations and making the pilot program 

or any part of it permanent. The draft bill would authorize to be appropriated to 

VA $20 million per year to carry out the pilot program and would also authorize 

appropriations for the Secretary of HHS, acting through the Director of the Indian 

Health Service, and to VA such sums as may be necessary to cover loan repayments 

under each agency’s respective loan repayment programs. 

VA supports the draft bill in principle. VA strongly supports the imperative to 

build Graduate Medical Education capacity in rural and underserved areas with the 

strategic intent to address a geographically inequitable distribution of the Nation’s 

physician and clinical workforce. 

While we appreciate the purpose of this bill, it is likely that a relatively small 

proportion of the patients seen by residents in such programs would be Veterans, 

yet VA would incur much of the burden for program initiation and maintenance including resident salaries, faculty time and development, curriculum development, 

and recruitment efforts. 

Under the draft bill, a medical resident who participates in the pilot program 

would be eligible for participation in the Indian Health Service Loan Repayment 

Program under section 108 of the Indian Health Care Improvement Act (section 

1616a of title 25, U.S.C.) and the VA Education Debt Reduction Program. The draft 

35 

bill also would include a period of obligated service (1 year of service at VA for each 

year of participation in the program). VA supports such a loan repayment and obligated service scheme, but recommends requiring 2 years of service for each year of 

program participation. Moreover, because residents typically receive a salary and 

are not obligated, post-residency, to perform services as a result of participating in 

a residency program, VA requests the authority to concurrently provide educational 

loan repayment to residents in the program(s) as a tool to recruit highly qualified 

residents. 

VA fundamentally believes that supporting the practice of rural health care in the 

United States is crucial to fulfilling its mission to provide the highest quality care 

for Veterans and that we must include within our broad health professions education portfolio a focus on rural health in order to meet our statutory mission to 

provide medical education for VA and for the Nation. VA endorses educating all 

physicians regarding the unique health needs of Veterans and providing clinical 

training opportunities in rural health care delivery systems. 

VA estimates the cost of implementation at four sites would be $20.3 million in 

FY 2018, $90.6 million over 5 years, and $201.8 million over 10 years. 

Mr. Chairman and Members of the Committee, this concludes my statement. I 

would be happy to answer any questions you may have. 

Chairman ISAKSON. Well, Dr. Lee, thank you very much for being 

here and thank you for your concise testimony on a lot of subject 

matter which, obviously—you know, I have got a check mark over 

here. I make marks to keep notes as we go by, yes meaning VA 

supports it, no meaning they do not support it. I have added a new 

one called ‘‘yes, but.’’ [Laughter.] 

On almost every response except one the answer was ‘‘yes, but,’’ 

so I want to talk about some of those buts for a second to make 

sure we find out where we have got something we need to work on. 

In particular, on the Veterans Affairs Accountability and Whistleblower Protection Act, which I have been a part of for some 

years now, working with the Secretary and others to develop—and 

Senator Tester has been invaluable in working with that, as has 

Senator Rubio, Senator Moran, and Senator Heller—in fact, almost 

everybody on the Committee, at one time or another, has had their 

mark on that piece of legislation. 

You were universally, if I am not mistaken, completely satisfied 

with S. 1094 as it was introduced, as it now exists, the Whistleblower Protection Act. Is that correct? 

Dr. LEE. I would like to ask Meghan Flanz, our Acting General 

Counsel, to answer the question. 

Ms. FLANZ. Mr. Chairman, we are very happy with the aims of 

it. We did, over the weekend, receive some concerns from our colleagues in Department of Justice about a couple of minor edits that 

they would like to see to avoid some of the constitutional issues 

that we saw with the Choice Act, SES expedited removal authority, 

they are minor. 

Chairman ISAKSON. Would you elaborate on that? 

Ms. FLANZ. Sure. I do not want to bore anybody in the room, but 

we had an issue under the Choice Act with the appointments 

clause of the Constitution, in that it specifically directed that a decision by the VA Secretary to remove a senior executive was reviewable only at the level of an administrative judge, before the 

Merit Systems Protection Board. Administrative judges are not 

Presidentially-appointed and Senate-confirmed. 

There is a bit of an issue in the part of this bill that deals with 

a grievance process after a senior executive action and directs that 

the Secretary will ensure that the grievance process is handled by 

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a VA employee. As worded, that would put an inferior officer, not 

a Presidentially-appointed, Senate-confirmed individual, in a position of reviewing decisions by the VA Secretary. Very minor fix. 

Just trying to avoid the same litigation outcome with this bill that 

we had with the Choice Act. 

Chairman ISAKSON. Did any of their concerns arise out of the decision made in the Phoenix case—— 

Ms. FLANZ. Only the—— 

Chairman ISAKSON [continuing]. To your knowledge? 

Ms. FLANZ. No. Only to the extent that now that we have a decision from the Federal Circuit, pointing out an appointments clause 

issue in a VA bill, our friends at Department of Justice are looking 

at this one very carefully just to make sure that there is no similar 

problem here. 

Chairman ISAKSON. And what specifically would they have us do 

to make sure that problem does not exist? 

Ms. FLANZ. I think it is probably as simple as not having the bill 

specifically state that the grievances will be heard by a VA employee, and then in our implementing regulations we can ensure 

that we do not have an issue with an inferior officer potentially 

overruling a VA Secretary. 

Chairman ISAKSON. OK. Thank you very much. 

On the appeals process, when you were talking, Ms. Lee, I think 

you were generally supportive of what we are trying to do on the 

appeals process modernization. Is that correct? 

Dr. LEE. Yes. 

Chairman ISAKSON. It is my understanding there have been 

some comments about treating—making sure the case remains 

open for the filing of any corroborating testimony necessary or any 

facts and figures before a final decision is made, but for it to be 

able to be reopened again and again. The intent we are trying to 

do in terms of the appeals process is get to a position where once 

filed, and once everybody has had a chance to put their information 

in, we do not reopen a case and start all over again. Do you think 

we are doing that in S. 1024, or are we not? 

Mr. MCLENACHEN. Mr. Chairman, I will take that question. 

Chairman ISAKSON. I knew somebody was on that one. 

Mr. MCLENACHEN. Yes. 

Chairman ISAKSON. You are welcome. You are not as pretty she 

is but it is your department. [Laughter.] 

Mr. MCLENACHEN. I will do the best I can. 

Senator, that is one of the major concerns we have left with the 

bill. We strongly support it, of course, and we have worked hard 

on it, but we do still believe that there needs to be some finality 

in the process. There was a provision that was added, in the bill 

that was introduced, to remove that finality, so that even after a 

claim goes to a Federal court, a veteran could still submit a supplemental claim and keep their effective date for benefits. That is not 

available in current law, and we think it is critical to have that finality in the process. So, that is one of the concerns that we do 

have. 

Chairman ISAKSON. Is it not true that there is one claim yet to 

be resolved that is 25 years old, because it has been reopened so 

many times? 

37 

Mr. MCLENACHEN. Yes. We have a lot of examples like that in 

the current process, where we have extremely old appeals that are 

churning in the process. There have been several examples like 

that, where there were 30, 40, 50 decisions made by both the Board 

of Veterans’ Appeals and BVA, in that appeal. 

So, that is what we are trying to avoid in this current process 

that we have designed. Right now, in this new process, you would 

have a beginning and end point for each of those lanes that we 

have set up for review. In the current process, there is no beginning and end point. 

Chairman ISAKSON. I think it is important that all of us stop and 

think for a second about what that really means. Twenty-five years 

of submission on a claim made for a benefit to the Veterans Administration, still open. We have been trying for some time to get fullydeveloped claims, or meaningful processes in the Veterans Administration, so the veteran has every opportunity to develop a claim, 

and once it is developed, let the decision be made on the information that is submitted, not reopened time and time again. So, that 

is the issue, I think, on this particular issue. 

Mr. MCLENACHEN. Yes, and in our view, there is no reason for 

a veteran to go to a court to continue to develop the claim. The 

whole design was earliest possible resolution in VA. So if veteran 

can file a supplemental claim with VA, and still maintain their effective date for benefits, and we could decide that within 125 days, 

there would be no reason to go to a court first to get a review, 

which is why we think that finality is important. 

Chairman ISAKSON. The delay not only hurts the veteran, it 

hurts the Veterans Administration as well. 

Mr. MCLENACHEN. Yes. The veteran is not getting the benefits 

when they could get them at the earliest point, if we can adjudicate 

a supplemental claim earlier. 

Chairman ISAKSON. Thank you very much. 

Senator Heller. 

STATEMENT OF HON. DEAN HELLER, 

U.S. SENATOR FROM NEVADA 

Senator HELLER. Mr. Chairman, thank you, and to the panel, 

thank you also for being here. If you do not mind, Mr. Chairman, 

I would like to read an opening statement. 

Chairman ISAKSON. Without objection. 

Senator HELLER. First of all, I want to commend you for the commitment of getting to view all these bills and, frankly, for doing it 

on a bipartisan basis. Mr. Chairman, you promised to work together on the Committee and I do respect that you have fulfilled 

that promise, so thank you for that. 

Chairman ISAKSON. You are going to be recognized for a longer 

statement if you keep that up. [Laughter.] 

Senator HELLER. All right. Today I have two bills on the agenda, 

the Women Veterans Access to Quality Care Act and the Care for 

Veterans’ Dependents Act. I am proud to have worked on both of 

these bipartisan bills with Senator Murray, and appreciate the 

input that the VA and the veteran service organizations have provided. While the VA has come a long way in improving its care to 

38 

women veterans, there are still some gaps that need to be filled, 

which I think our bill will do. 

The VA needs to improve access to doctors that can meet their 

gender-specific health needs and ensure their policies on safety and 

privacy for women veterans are properly carried out in all VA facilities. I appreciate the VA’s willingness to work with us on this 

issue and look forward to finding a path forward for this particular 

bill. 

Another bill Senator Murray and I have worked on for years is 

the Care for Veterans’ Dependents Act. The concept is quite simple: 

if you are a homeless facility that receives VA funding, you want 

to ensure that you can get reimbursed for providing care to dependents who accompany a veteran. We do not want to see veterans getting turned away from any facility just because they have dependents with them. With over 700 homeless veterans still living on the 

streets in shelters in Las Vegas and other parts of Nevada, we 

must continue working to address the needs of veterans who have 

fallen on hard times. 

I am also proud to support a bill in today’s agenda from Senator 

Hatch that ensures that veterans have access to adult day care— 

day health care benefits. 

Last, I want to thank Chairman Isakson and Ranking Member 

Tester for their work in coming to an agreement on an accountability bill that has support from both sides of the aisle. It is so 

important that we get the VA the tools that they need to get rid 

of bad employees, and anyone who has wronged a veteran should 

not get to stay on administrative leave for months on end. That has 

to stop and the VA needs to have the authority to get rid of these 

individuals. 

With that, Mr. Chairman, I have a couple of questions and comments for Dr. Lee. 

I guess the first question—this is a question I wanted to raise 

with Secretary Shulkin, and I will the next time he is here, but 

have you heard of Ely, NV? 

Dr. LEE. I know there was a gathering there recently—— 

Senator HELLER. There was. 

Dr. LEE [continuing]. But I have not personally been there. 

Senator HELLER. I do not expect you to have been there. I just 

want to make sure you have heard of Ely, NV. We have veterans 

there that were able to get their care from a local hospital instead 

of having to drive to Salt Lake City, which is several hundred 

miles away. The choice out in Ely, and other rural small towns in 

Nevada, is you either have to drive to Reno, which is 300 miles one 

way, or you have to drive to Salt Lake, which is 300 miles the 

other way. 

That contract that they had with the local hospital expired, and, 

frankly, they do not want to use the Choice program, and I understand why. One veteran called to schedule an appointment with the 

contractor for Choice and he was told that Ely, NV, did not exist. 

Another veteran called to schedule an appointment with the contractor for Choice and was told—actually, he was a week out from 

an appointment and still had not been told whether the appointment had been authorized. 

39 

Service through the Choice program is not good and Ely veterans 

do not want to be part of it. Last week we learned that veterans 

would be able to access local hospitals through September without 

having to use the Choice program, which was good news, but obviously these veterans want a permanent solution. I will be asking 

the same questions to the Secretary about what permanent solutions they may have for these Ely veterans, yet I do have a couple 

of questions for you. 

The first question is, what are you doing to hold the contractors 

accountable for their performances? 

Dr. LEE. Senator, we definitely need a better solution for those 

veterans in your home State and Ely. We know there are a lot of 

issues with the program and we are working on them. I can get 

back to you with specifics on that—in that particular area, what 

we are doing, but it also speaks to the larger need to look at the 

entire program and evolve it to better meet the needs of veterans. 

Senator HELLER. What would be a timeframe that you could get 

back to me on this? 

Dr. LEE. As soon as we possibly can, sir. 

Senator HELLER. A couple of weeks? A month? I just want to get 

some kind of timeline. Like I said, they are extended through September, which was good news. I just want to make sure we are not 

talking in October. 

Dr. LEE. I think we can get you some response back within a few 

weeks on what we are—— 

Senator HELLER. Prior to—— 

Dr. LEE [continuing]. Yes. 

Senator HELLER. OK. OK. 

Dr. LEE. We will put a priority on that. 

Senator HELLER. I understand you have a pilot program that allows VAs to schedule appointments for veterans in Choice programs. Tell me a little bit about this pilot program, and has it been 

successful? 

Dr. LEE. Are you referring to the self-scheduling? 

Senator HELLER. It is a pilot program, from what I understand, 

that allowed the VA to schedule appointments for veterans in the 

Choice program. Does that make sense? 

Dr. LEE. Yes. Sir, I have to take that for the record and just get 

some specifics back to you. 

[Ongoing communication between VA and Senator Heller’s office 

sufficiently fulfilled these queries.] 

Senator HELLER. OK. We can broaden those questions. 

Can you tell me why you think veterans currently dislike the 

Choice program? Why do you think they dislike it? 

Dr. LEE. We want to—I think we strive to make access to care 

very convenient and centered around the veterans’ needs, and I 

think some of the issues with the Choice program currently are 

well known, and have to do with cumbersome process to get to that 

care in the community. 

Senator HELLER. Can I share a couple of stories with you? We 

have a veteran from Battle Mountain who is fighting cancer and 

needs surgery, but the day before the surgery it was still not authorized. Have you heard stories like this before? 

Dr. LEE. Unfortunately, they are—— 

40 

Senator HELLER. We have another veteran in Reno who had an 

authorized—who had an authorization for surgery that was later 

revoked by the VA, leaving him with a $17,000 bill. Have you 

heard stories like this before? 

Dr. LEE. Senator, that is unacceptable. 

Senator HELLER. Is this unique, or is it something you have 

heard before? 

Dr. LEE. Again, I think the problems with the program are well 

documented. I do not know about the exact—the volume or the 

numbers of those particular kinds of cases, but it is absolutely not 

the kind of service that we strive for. 

Senator HELLER. So, tell me, what it is going to take? Tell me, 

what it is going to take to change problems like this in the system? 

Dr. LEE. We have made a lot of progress already. My colleague, 

Dr. Yehia, in particular, spent a lot of time and energy reforming 

the Choice program through a number of contract modifications 

and other changes. I think that we would just ask if we could work 

together to continue that process as we think about how that program should evolve to better meet veterans’ needs. 

Senator HELLER. Mr. Chairman, my time has run out. 

Chairman ISAKSON. I want to thank you and commend you on 

your questions. For the record, for you and everybody’s benefit 

here—Senator Tester is aware of this—Secretary Shulkin and the 

VA have been working for some time to recognize they have problems like the ones you have outlined, in terms of Ely, NV, in terms 

of surgery being revoked and things of that nature. As we speak, 

we have been working with Secretary Shulkin to come forward 

with new parameters to try and deal with these glitches so it does 

not happen again. And, this Committee will be dealing with it in 

the not too distant future. 

So, as we modernize the Choice program it is truly a choice. It 

is timely in its responsiveness. It is not as cumbersome and difficult as it has been for the veterans. Dr. Shulkin has been invaluable as has—what is his name, the doctor—Dr. Baligh? 

[Cell phone rings.] 

Chairman ISAKSON. The Chairman is violating his own rule here. 

Senator HELLER. Who is calling you now? 

Chairman ISAKSON. Dr. Baligh has done invaluable work with us 

in making this happen, so we are going to continue to work for it 

and bring it to the Committee to make sure it is corrected, because 

many of those things are basically inexcusable. We need to make 

it work good for our veterans and for the Veterans Administration. 

So, thank you for bringing it up. 

Senator HELLER. Mr. Chairman, thanks for your attention also. 

Chairman ISAKSON. Senator Tester. 

Senator TESTER. Thank you, Mr. Chairman. I have some questions on the accountability bill so I am going to probably direct 

most of these to you, Ms. Flanz. Would it be fair to say that you 

are the VA’s top lawyer? 

Ms. FLANZ. That is what my business card says, yes. 

Senator TESTER. That is good. That is not a bad business card, 

top lawyer of VA. That is good. 

Ms. FLANZ. Job security. 

Senator TESTER. That is it. 

41 

Ms. FLANZ. There is always something. 

Senator TESTER. And you deal with personnel law quite a bit; I 

would assume, just about exclusively, right? 

Ms. FLANZ. Yes. 

Senator TESTER. So, when it comes to employee accountability, it 

is something you are up on. It is also true that you are a career 

civil servant within the VA, not a political appointee. Correct? 

Ms. FLANZ. Yes, that is correct. 

Senator TESTER. There is a lot of misinformation about what the 

VA accountability bill would actually do. I have got a few clarifying 

questions and I would appreciate your perspective on this. Would 

this bill allow VA managers to get away with firing anybody who 

challenges them? 

Ms. FLANZ. No, sir. 

Senator TESTER. Does this bill trample on workers’ rights? 

Ms. FLANZ. No, sir. 

Senator TESTER. Does it provide senior executives within the VA 

with more favorable treatment than rank-and-file employees? 

Ms. FLANZ. No, it does not. 

Senator TESTER. Would you say that senior executives and rank 

and file are treated on parity—equal? 

Ms. FLANZ. As I read the bill, each would receive pre-decisional 

due process and enough process after a decision to pass constitutional muster. The processes would be different. 

Senator TESTER. OK. So could you just kind of discuss why the 

VA needs a substantial evidence portion, and the MSPB difference 

provision? 

Ms. FLANZ. Sure. Under current law, the Merit Systems Protection Board, which is the board that hears all or almost all Federal 

employee appeals. It recognizes two different burdens of proof, two 

different evidentiary standards that apply in different circumstances. One is the preponderant evidence standard, which is, 

in essence, a mathematical standard. It requires the judge to take 

a look at all the available relevant evidence and decide whether 

more of it, 51 percent, supports the agency’s view of the case than 

supports the employee’s view of the case. 

The other standard, which MSPB currently applies, in some 

cases, in performance-based actions taken under Chapter 43 of 

Title 5, is the substantial evidence standard. That is more of a common sense standard. It is more of a ‘‘reasonable person’’ standard. 

Under that standard, the judge takes a look to see whether the evidence is sufficient that a reasonable person could make the decision that the deciding official (the individual who imposed an action against an employee) makes, even if another reasonable person 

could make a different decision. 

So, under current law, most conduct-based cases have the preponderant evidence standard and then the performance-based 

cases, under one of our Title 5 authorities, have the substantial evidence standard. 

The difficulty for us—and let me give you kind of a real-life 

example—— 

Senator TESTER. I was just going to ask for that, so you beat me 

to it. 

42 

Ms. FLANZ. We had a case recently with a mental health provider 

who was photographed by a veteran patient having a pornographic 

movie playing on an iPad in the exam room while the veteran patient was there. We have got photographic evidence of misconduct. 

In this particular case, the individual, the psychologist or psychiatrist, also admitted, confessed to the issue. 

We had evidence that I think a reasonable supervisor in almost 

any organization would believe is sufficient to take action against 

an employee. But, under the preponderant evidence standard, we 

do not know the total universe of evidence. We know what we have 

but we do not know whether all of the evidence together, 51 percent or more, favors the action that the supervisor wants to take. 

In a case like that, the concern and the process, generally, has 

been to undertake a thorough investigation so that we have the 

total universe of evidence before an action is proposed, so that we, 

as lawyers, in supporting the Department, can sit in the shoes of 

a judge and say, yes, mathematically, more of that total universe 

of evidence supports the action than supports the defense. 

From our perspective, the substantial evidence standard, which 

is by no means a rubber stamp by a judge—the judge still has to 

look at was there a common-sense business reason for the action 

taken—would a reasonable person have looked at the evidence and 

said, yes, that evidence supports the action taken? It is not a rubber stamp. It just allows us to get to the proposal and decision 

state faster. 

Senator TESTER. And it sounds like that psychologist needed a 

psychiatrist. But would this bill apply to that psychologist? 

Ms. FLANZ. Yes, sir. 

Senator TESTER. OK. I am out of time. If we have a second round 

I have got some more. 

Chairman ISAKSON. Senator Blumenthal. 

HON. RICHARD BLUMENTHAL, 

U.S. SENATOR FROM CONNECTICUT 

Senator BLUMENTHAL. Thank you, Mr. Chairman. Thank you all 

for being here today. I am the supporter and sponsor of the Veterans’ Partners Efforts to Enhance Reintegration, or Veteran PEER 

Act, as it is called, and I have advocated for improvements in behavioral health services. I think mental health services are critical 

in so many ways. I do not need to elaborate for this panel. Often 

PEER specialists are borrowed from behavioral health centers to 

assist the primary care treatment teams that improve patient 

outcomes. 

Unfortunately, there is a shortage—the result of this practice has 

been a shortage of PEER specialists in both behavioral health and 

primary care. We have essentially robbed Peter to pay Paul. Ensuring there are female PEER specialists available to work with 

women veterans and reporting on the outcomes of the program as 

a whole is also included in this measure. 

I would like to ask Dr. Lee whether you are a supporter of the 

Veteran PEER Act. Do you believe that PEER support specialists 

are a necessary and integral part of mental health services and primary care for our veterans? 

43 

Dr. LEE. Senator, thank you for your support of PEER specialists. VA has no objection to the draft bill, but we currently have 

the authority to implement the increase in PEER support specialists, including them in the PACT team, in primary care. Currently 

VA has over 1,000 PEER support specialists. About 16 percent of 

them are women, and we are very supportive of growing that because it benefits veterans. Veterans who interact with peers are 

more likely to seek care when they need it and to have a better 

experience with the care team. 

Senator BLUMENTHAL. Thank you. Thank you, Mr. Chairman. 

Chairman ISAKSON. Senator Murray, did you have a question 

that you would like to ask? 

Senator MURRAY. [Inaudible.] 

Chairman ISAKSON. You are on. Senator Tester. OK, I will recognize Senator Tester, who had another question, and then we will 

go to you. 

Senator MURRAY. [Inaudible.] 

Senator TESTER. OK. You give me a kick when you are ready, 

Patty. 

This is for Mr. Parker. One of the biggest problems I have got 

with Choice is that it had little or no visibility in what is going on 

with our third-party administrator, HealthNet, from Montana. We 

cannot do oversight or help you when you need it, when there are 

contract modifications that are happening literally every other 

month, and we have no reliable information as to whether the company is meeting those standards. That is why I introduced a bill 

to require the VA to provide the Committee with contract modifications and information about contracting performance. 

This kind of goes on to what Senator Heller said. Do you see 

problems with Congress having this type of data on performance? 

Mr. PARKER. No, sir, and, in fact, I will restate what Dr. Lee 

said, which was, you know, we do support the intent of that bill. 

We want to make sure that we work it appropriately. I think sharing that information with the Congress is absolutely proper. 

Senator TESTER. Good. 

Mr. PARKER. What I would suggest is that it comes from the Secretary to this body. 

Senator TESTER. Yes. OK. So, the bill also requires the contracts 

include authority for the Secretary to level financial penalties if the 

contractor’s performance does not meet those contractual standards. Your testimony indicates you believe you have all the tools 

you need. If that is the case, why has not more been done to hold 

HealthNet accountable for poor performance? And I do not think it 

is just Montana. 

Mr. PARKER. No. I would agree with that. I do argue that the 

tools are available. I think that we need to make sure that we, as 

an organization, use the tools that are available to us. The liquidated damages clause gives us remedies. The quality performance tool such as a QASP, a surveillance plan, gives us the ability 

to look in and see what performance is. 

We need to do a better job, frankly, on the program management 

side to make sure that we are doing our jobs and holding contractors accountable. 

44 

Senator TESTER. I appreciate you taking responsibility. Let me 

give you an example of two of the things that have been particularly reckless with what is going on. Number 1, people who call up 

and get put on hold and then they get put back on hold; and 2, 

they call up and are told to call back days later. This is before they 

even get the appointment set up. Then, when they get the appointment set up it is a hell of a lot longer than if they just went to 

the VA to begin with. 

Then, those providers, initially—this has since changed because 

we entered into that picture and told some folks they had to change 

it—were not paying their providers. We are paying these thirdparty contractors. I do not know how much we paid HealthNet and 

I do not know how many States they are in, but I have got a notion 

it is a fair chunk of change. They should not have to hold that 

money in their bank account to collect interest on top; they ought 

to just pay the damn providers. 

So, you pretty much told me it is on you. 

Mr. PARKER. Well, what I am trying to impart is that I think we, 

as a Department, need to do a better job of managing some of our 

contracts, and our program, really. I look at it more as a program 

basis than in just a contract-by-contract. We are doing things such 

as putting in the acquisition program management framework to 

have a better program management culture, mindset, and practices, which aligns with the new PAMIA legislation that still has 

not been fully implemented yet. We are waiting on guidelines coming out of OMB. 

So, we have a couple of big initiatives there that are early on, 

and I am optimistic that once we get those going, I am hopeful that 

we are going to see some very good results there. Because you are 

right—the things that you are citing are absolutely unacceptable. 

Senator TESTER. OK. Thank you, Mr. Chairman. 

Chairman ISAKSON. For the benefit of the Members who just 

came in, Senator Murray is next, to be followed by Senator 

Manchin and then Senator Sullivan, unless Senator Sullivan can 

go after Senator Murray and then we do it in Republican-Democrat 

order. Will you be ready in 5 minutes? 

Senator SULLIVAN. Sure, if my friend from West Virginia does 

not mind. 

Senator MANCHIN. The Senator from Alaska was born ready. 

[Laughter.] 

Chairman ISAKSON. Given that compliment, you are going to be 

next, after Senator Murray. How about that? 

Thank you, Senator Manchin. 

Senator Murray? 

Senator MURRAY. Thank you very much, Mr. Chairman. Ms. 

Kabat, I was very concerned when I got reports about veterans and 

their families who were cut off from the Caregiver Program really 

abruptly, so I am glad your department announced it had stopped 

that practice until it can get a better handle on things and figure 

out the program’s eligibility rules. 

But, I am very concerned by the Department’s plan to issue guidance on enrollment criteria and seek to reprioritize who is helped 

by this program. As I talked with Dr. Shulkin last month, I am 

open to hearing your ideas on changes to the eligibility criteria, but 

45 

I expect you will consult with me before the Department attempts 

to make any changes to who can be helped by this critical program. 

Ms. KABAT. Absolutely. While I certain cannot speak directly for 

Dr. Shulkin, I believe what he and I have discussed is that he really wants to look at the overall way that VA is approaching supporting family caregivers, and certainly the program of comprehensive assistance is one way that we do that. We need to make sure 

we are doing that well, and be able to then look at all of the other 

areas in which we are supporting caregivers, including veterans 

who are caregivers themselves—that is an important piece—as well 

as our caregivers of veterans who were injured or ill prior to September 11th. 

So, there are a lot of different options and lots of different discussion. There is no definitive plan right now to change eligibility. We 

are working diligently on issuing a directive which is the official 

policy on the current program, and I am hopeful that that will be 

published within the next month, which will really provide a 

framework that is consistent with the eligibility that we have now. 

It will make decisions more transparent for veterans and their 

families. 

Senator MURRAY. Well, will you keep the suspension in place 

until you have completed all the actions needed to improve the program, including the pending GAO and IG recommendations? 

Ms. KABAT. The GAO recommendations surrounding the development of an IT solution? I do not believe that our plan is to keep 

the suspension in place until we have that new IT solution. I can 

get you a more specific update on what is going on with the IT solution. I can take that for the record and get that back to you. 

[The information requested during the hearing follows:] 

RESPONSE TO REQUEST ARISING DURING THE HEARING BY HON. PATTY MURRAY TO

MARGARET KABAT, NATIONAL DIRECTOR, CAREGIVER SUPPORT PROGRAM, VETERANS

HEALTH ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS

Response. VA’s Program of Comprehensive Assistance for Family Caregivers 

(PCAFC) is expected to resume in the coming months following a strategic review 

of the program which, indicated a need for better communication with Veterans and 

caregivers, improved internal processes and procedures, and additional staff training. Since that review, VA has made significant advancements in communication 

about eligibility determinations, clinical discharges and the appeals process, internal 

processes and procedures, and staff training. Specifically, those advancements include: 

• Increased communication and engagement with Veterans Service Organizations, 

Military Service Organizations, Members of Congress, VA Veterans Integrated Service Network directors, and other stakeholders. 

• Ongoing work to revise the PCAFC website to include a section about connecting caregivers and Veterans to home and community based services. 

• Work is in progress on a Veterans Health Administration (VHA) national policy 

directive on caregivers, with an expected 80,000 subscribers to the PCAFC list-serve 

to promote transparency. 

• Work is in progress to promulgate a new, standardized letter for use by all VA 

medical centers when communicating program discharges with Veterans and Family 

Caregivers. 

• Implementation a new ‘‘Roles, Responsibilities and Requirements’’ document 

that reaffirms that all family caregivers are collaborative partners with VHA. 

Throughout this time, the PCAFC has continued to collaborate with VA’s Office 

of Information Technology on development efforts for an information technology (IT) 

solution intended to replace the current Caregiver Application Tracker. When fully 

developed and available for field use, the new Caregiver Tool (CareT) will enable 

improved tracking and monitoring of Veteran and caregiver participation in PCAFC. 

46 

Senator MURRAY. OK. I would like to see that. And I want to 

know if you can assure me that the veterans and VA staff across 

the country are going to get very clear national guidance on enrollment criteria? 

Ms. KABAT. Yes, I can assure you of that. I can also assure you 

that we are going to increase our oversight from the central office 

perspective. We have a variety of different things that are being 

discussed and will be implemented prior to returning to discharging veterans and caregivers from the program. 

Senator MURRAY. OK. Well, in an earlier study by the VA, the 

Department found that for veterans in the caregiver program their 

inpatient hospital admissions decreased by 30 percent, and the VA 

also found that when a veteran was hospitalized, their length of 

stay decreased by 21⁄2 days. So, tell me, how important is it to veteran’s health and quality-of-life to spend less time in the hospital 

and more time at home? 

Ms. KABAT. It is essential, and I think everyone in VA believes 

that, so we are moving forward with working to providing comprehensive support to all caregivers of veterans. 

I do think it is important to note that that initial study that you 

are referencing was done without a comparison group. More recently we have been able to compare veterans whose family caregivers participate in the program of comprehensive assistance to 

veterans whose caregivers have not participated in the program of 

comprehensive assistance, and those veterans whose caregivers do 

participate access more outpatient care, more specialty care, more 

mental health care. They are more engaged in treatment, which is 

really an important part of helping veterans get to their highest 

level of independence. 

That research—I am happy to meet with you and discuss this in 

more detail and actually have the VA researcher with me to talk 

more about it—did not demonstrate that there was a significant 

difference in terms of inpatient stay or ER visits. Part of it is that 

the post-9/11 veteran population are fairly low users of inpatient 

stays and ER visits, so there is not—it is difficult to get a substantial difference, because they use those services less than other cohorts of veterans. 

Senator MURRAY. Are you working at all to expand research to 

find out what the improvements are? 

Ms. KABAT. Absolutely. We have ongoing work with VA researchers at the Durham, NC, VA. Again, I am happy to meet with you 

and your staff and talk more about all that we are looking at. 

Senator MURRAY. OK. I also just want to say that there was a 

September 2014 GAO report that had some really important concerns about the Caregivers Program, including very high workloads 

of our veterans per caregiver support coordinator. You can get it 

back to me in the record, but I want to find out where you are on 

hiring new caregiver support coordinators and getting those personnel in the field so that this program can work. 

Ms. KABAT. Absolutely. We have made significant strides. We are 

up to about 350 caregiver support coordinators across the country, 

but I am happy to get you the specific around ratios. 

[The information requested during the hearing follows:] 

47 

RESPONSE TO REQUEST ARISING DURING THE HEARING BY HON. PATTY MURRAY TO

MARGARET KABAT, NATIONAL DIRECTOR, CAREGIVER SUPPORT PROGRAM, VETERANS

HEALTH ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS

Response. The PCAFC monitors Caregiver Support Coordinator (CSC) positions to 

approved Veteran/Caregiver dyads ratios and works with sites to discuss facility 

staffing needs to support local administration of the PCAFC. Please see the attached 

document, titled Ratio of CSCs to Caregivers. The most recent and accurate data 

currently available is as of August 18, 2017, at which time the PCAFC Office was 

funding 446 positions. Seventy of these positions are vacant and in various stages 

of recruitment. An update to the CSC staffing data set will be available November 

2018. 


517q2VA1mur1.eps

517q2VA1mur2.eps

10 538 CHILLICOTHE VA MEDICAL CENTER, CHILLICOTHE, OH 29 1 12 556 CAPTAIN JAMES A. LOVELL FEDERAL HEALTH CARE CENTER, NORTH CHICAGO, IL 57 2 17 674 CENTRAL TEXAS VA MEDICAL CENTER, TEMPLE, TX 246 8.6 

20 653 ROSEBURG VA MEDICAL CENTER, ROSEBURG, OR 114 4 

503 JAMES E. ZANDTVA MEDICAL CENTER, ALTOONA, PA 100 3 

565 FAYETTEVILLE VA MEDICAL CENTER, FAYETTEVILLE, NC 232 7 

544 WM. JENNINGS BRYAN DORN VA MEDICAL CENTER, COLUMBIA, SC 103 3 

16 667 OVERTON BROOKS VA MEDICAL CENTER, SHREVEPORT, LA 103 3 

20 531 BOISE VA MEDICAL CENTER, BOISE, 10 103 3 

613 MARTINSBURG VA MEDICAL CENTER, MARTINSBURG, WV 70 2 

619 CENTRAL ALABAMA VHCS, MONTGOMERY, AL 211 6 

17 580 MICHAEL E. DEBAKEY VA MEDICAL CENTER, HOUSTON, TX 105 3 

23 636A8 IOWA CITY VA MEDICAL CENTER, IOWA CITY, lA 70 2 

19 660 SALT LAKE CITY VA MEDICAL CENTER, SALT LAKE CITY, UT 83 2.3 

20 668 MANN-GRANDSTAFF VA MEDICAL CENTER, SPOKANE, WA 71 2 

23 656 ST. CLOUD VA HEALTH CARE SYSTEM, ST. CLOUD, MN 72 2 

12 676 TOMAH VA MEDICAL CENTER, TOMAH, WI 115 3 

21 654 SIERRA NEVADA VA MEDICAL CENTER, RENO, NV 75 2 

10 S52 DAYTON VA MEDICAL CENTER, DAYTON, OH 77 2 10 655 ALEDA E. LUTZ VA MEDICAL CENTER, SAGINAW, Ml 39 1 

608 MANCHESTER VA MEDICAL CENTER, MANCHESTER, NH 119 3 630 MANHATIAN CAMPUS VA MEDICAL CENTER, NEW YORK, NY 178 4.5 

12 S78 EDWARD HINES JR VA HOSPITAL, HINES, IL 1S9 4 16 629 NEW ORLEANS VA MEDICAL CENTER, NEW ORLEANS, LA 80 2 

8 548 WEST PALM BEACH VA MEDICAL CENTER, WEST PALM BEACH, FL 122 3 

10 S41 LOUIS STOKES VA MEDICAL CENTER, CLEVELAND, OH 164 4 

20 663 PUGET SOUND VA MEDICAL CENTER, PUGET SOUND, WA 163 4 21 662 SAN FRANCISCO VA MEDICAL CENTER, SAN FRANCISCO, CA 123 3 

1 405 WHITE RIVER JUNCTION VA MEDICAL CENTER, WHITE RIVER JUNCTION, VT 125 3 

16 520 GULF COAST VETERANS VA MEDICAL CENTER, BILOXI, MS 170 4 19 635 OKLAHOMA CITY VA MEDICAL CENTER, OKLAHOMA CITY, OK 129 3 

23 438 SIOUX FALLS VA MEDICAL CENTER, SIOUX FALLS, SO 43 1 

S28A7 SYRACUSE VA MEDICAL CENTER, SYRACUSE, NY 132 3 

517 BECKLEY VA MEDICAL CENTER, BECKLEY, WV 87 2 

21 459 VA PACIFIC ISLANDS VA MEDICAL CENTER, HONOLULU, HI 221 5 

693 WILKES-BARRE VA MEDICAL CENTER, WILKES-BARRE, PA 92 2 646 PITISBURGH VA MEDICAL CENTER, PITISBURGH, PA 46 1 

12 S37 JESSE BROWN VA MEDICAL CENTER, CHICAGO, IL 92 2 

22 519 WEST TEXAS VA MEDICAL CENTER, BIG SPRING, TX 46 1 

620 FOR VA MEDICAL CENTER, CASLT POINT/MONTROSE, NY 145 3 652 HUNTER HOLMES MCGUIRE VA MEDICAL CENTER, RICHMOND, VA 143 3 603 ROBLEY REX VA MEDICAL CENTER, LOUISVILLE, KY 239 5 

12 S85 OSCAR G JOHNSON VA MEDICAL CENTER, IRON MOUNTAIN, Ml 72 l.S 19 436 FORT HARRISON VA MEDICAL CENTER, FORT HARRISON, MT 145 3 

402 TOG US VA MEDICAL CENTER, TOG US, ME 48 1 

VAMCS with esc to approved caregiver ratio of 50-99 

528 VA WESTERN NEW YORK HEALTHCARE SYSTEM, BUFFALO, NY 100 2 508 ATLANTA VA MEDICAL CENTER, ATLANTA, GA 297 6 

10 S06 ANN ARBOR VA MEDICAL CENTER, ANN ARBOR, Ml 148 3 

22 756 EL PASO VA OUTPATIENT CLINIC, EL PASO, TX 152 3 
49 

Senator MURRAY. OK, because I did include additional dollars on 

the fiscal year 2017—— 

Ms. KABAT. Yes, you did. 

Senator MURRAY [continuing]. For that, and I want it used. 

Ms. KABAT. You did. Yes. Absolutely. And we appreciate that. 

Thank you. 

Senator MURRAY. All right. Thank you. 

Chairman ISAKSON. Senator Sullivan. 

STATEMENT OF HON. DAN SULLIVAN, 

U.S. SENATOR FROM ALASKA 

Senator SULLIVAN. Thank you, Mr. Chairman. I know we are 

talking health issues today so I want to take the opportunity to 

first welcome you back, sir. We all missed you and we are glad you 

are doing well. I know we have some health issues with a couple 

of other Senators, namely Senator Hirono, and I know we are all 

wishing her well. I am going to read a statement briefly here from 


517q2VA1mur3.eps
50 

Senator Tillis right now, if that is OK, Mr. Chairman. He also had 

a bit of a health issue today and he wanted me to read his 

statement. 

I think he is doing well, so, do not worry about that. 

Senator TESTER. Senator Sullivan, since you are confused with 

Senator Tillis all the time, I think you can just say you are Senator 

Tillis. [Laughter.] 

Senator SULLIVAN. Well, this will really freak out—— 

[Laughter.] 

Senator SULLIVAN. That is only if I keep his 5 minutes and then 

I get my 5 minutes. No. I am just kidding, Joe. I will read it 

quickly. 

This is a statement from Senator Tillis: 

‘‘Please accept my apologies for not being here this afternoon. I was running in the Capital Challenge 5K this 

morning and unfortunately was not able to finish the race, 

even though I was well on my way to easily eclipsing my 

time from last year. 

‘‘I want to just briefly comment on two bills on the agenda. On the Veterans Education Priority Enrollment Act I 

appreciate the VA’s support and the valuable feedback we 

received from all the stakeholders. I understand some of 

the compliance concerns that were raised and I look forward to discussing with Senator Brown to identify the best 

path forward that will allow flexibility for schools that are 

already setting the gold standard while ensuring that all 

veterans have the opportunity to use their GI Bill to the 

fullest extent. 

‘‘And with regard to the State Veterans Home Adult Day 

Care—Day Health Care Improvement Act, I thank Senator 

Hatch for his leadership and I look forward to engaging 

with the VA to address their recommendations that would 

improve the bill. Together we can empower veterans to receive daily care while living and spending more time at 

home with their families.’’ 

Thank you, Mr. Chair. 

Dr. Lee, I want to talk briefly about the Serving Our Rural Veterans Act, and I appreciate Senator Tester’s commitment to that 

issue as well. As you know, this goes to an issue that actually was 

raised—and the idea was not mine or even Senator Tester’s, it was 

actually Dr. Shulkin’s. When we were up in Alaska visiting he had 

this idea of, hey, how do we get more health providers in rural 

areas, extreme rural areas; and then, is that a way to help get 

them working at the VA? 

So, we discussed this. This bill is getting ready. We want to finalize a couple of elements of that. I appreciate your testimony, talking about how you are supportive of the bill. 

What we want to be able to do, though, is just kind of iron out 

some of the final elements. We have gotten some conflicting recommendations from the VA, particularly on the issue of a service 

commitment that relates to this, what you guys think about that. 

I think in previous testimony and consultations with my staff there 

51 

has been an interest in that from VA, though now I think in your 

public statement there is not an interest. 

We want full VA support. I know Dr. Shulkin does. Like I said, 

he has been not only supportive but was in many ways the brainchild of this entire bill. So, we want to work with you on that. We 

want to get this in and we want to get this passed. It is an important bill that we think can benefit a lot of our veterans, and is very 

bipartisan. 

So, can I get your commitment on that? 

Dr. LEE. Senator, thank you for raising this issue. We are very 

supportive of wanting to build the capacity for care through graduate medical education investments in rural areas, and I think 

where we are—well, we look forward to working with you on the 

specifics of your bill. 

Our concerns just come from wanting to get the most bang for 

our buck, if you will—— 

Senator SULLIVAN. Sure. Absolutely. 

Dr. LEE [continuing]. And service to veterans from those 

residents. 

Senator SULLIVAN. Yes. 

Dr. LEE. And looking at what the service commitment is back for 

the chance to be a part of the program, and also looking at authorities for expanding debt reduction—— 

Senator SULLIVAN. Great. Oh, great. 

Dr. LEE [continuing]. To resident physicians. 

Senator SULLIVAN. Wonderful. 

Dr. LEE. We look forward to working with you. 

Senator SULLIVAN. If we can do that sooner rather than later, I 

think that we are all anxious to introduce this bill. I think it will 

have strong bipartisan support in the Committee, and we really 

want to move on it this year. 

Dr. LEE. We would be happy to work with you. 

Senator SULLIVAN. Great. I just have one final question. You 

know, I have been very interested in the appeals issue. I know that 

we have S. 1024, which is the Chairman, Senator Blumenthal, and 

the Ranking Member’s bill. 

My question that relates to that bill, as somebody who has been 

very focused on the appeals issue and concerns about the backlog, 

I believe that bill authorizes kind of the ability to test facets of the 

new appeals system. Is the VA planning on using that? And my 

only concern—I would encourage you once this bill becomes law, 

because we all know we have a challenge on the appeals process, 

but we also do not want to go to out with a full—in my view, a 

full comprehensive approach and then realize, uh-oh, there is another problem here, and kind of crash the system the way, say, for 

example, the Choice Act was in certain States like mine, where it 

was fully implemented and it just did not work. 

Can you talk to that issue of kind of the ability to test case how 

we are doing appeals correctly under this bill so we do not—I am 

sure there are a lot of good ideas, but this is a comprehensive bill, 

and if we go full authority and then we realize something in the 

bill is actually not working, I do not want to have an appeals system that is further broken. Does anyone want to talk to that issue? 

52 

Mr. MCLENACHEN. Yes, Senator, I will start, and then maybe Mr. 

Hachey has something to add. 

I think there may be a little bit of a misconception about this 

bill. We are not changing the way that we decide appeals or decide 

claims in BVA, where I work. It is really how we are routing the 

work to the point where you make those decisions. 

So, I think some people believe that, you know, this is a very significant change. It is, in fact, somewhat of a historical change. On 

the one hand, what we are really doing is just streamlining the 

process that gets to the point where the decision is made, and we 

are kind of pulling the current process apart and realigning it so 

that it gets to a point where a veteran has a choice about how they 

want to handle the review process. 

So, you know, there has been some concern expressed, in particular referring to the GAO report that was done on the appeals 

process. But, the critical point to understand is that the board is 

not changing how they are doing their decisions and we are not 

changing how we are doing ours. We are applying the law to the 

facts in the same way. It is just how we get the appeals and the 

claims to the end point where the person makes the decision more 

streamlined. 

We have worked very closely with some of the other panelists 

you are going to hear from today on developing this process, the 

VSOs and other stakeholders. This is a situation where we believe 

that we have the right solution. If we were unsure of that, then 

certainly; it would be important to do a pilot or some other type 

of implementation. But we have such a severe problem right now 

that it would be the wrong thing to do, in VA’s opinion, to make 

it only available to certain veterans. In fact, it would be unfair if 

we did that, when we know that we have the right solution. 

It is better than what we have today. There is no doubt about 

that. So, it does not make much sense to do a pilot or something 

similar to that. 

Donnie, do you have anything you want to add? 

Mr. HACHEY. I would agree with everything that Dave just said. 

I think the substantive law here that is being used to decide appeals is the same. What we are really doing is simplifying the process and pulling it apart and making it easier for veterans by providing them with more choice. We know that the system we are 

working with now is broken, so a piecemeal solution, we do not 

think is the right approach right now. We have brought all of the 

major stakeholders together and come up with something we believe is the right answer for veterans, that is going to get them 

faster decisions and provide a simpler process. We think the time 

to do it is now, and we cannot delay it any further by engaging in 

a pilot or having a phased-in implementation. 

Senator SULLIVAN. OK. Thank you. Thank you, Mr. Chairman. 

Chairman ISAKSON. Thank you, Senator Sullivan. 

Senator Manchin? 

STATEMENT OF HON. JOE MANCHIN III, 

U.S. SENATOR FROM WEST VIRGINIA 

Senator MANCHIN. Thank you very much, Mr. Chairman, and 

thank you all for being here. 

53 

I think you all have seen this. It is a report last week of the 

VA—the DC VA, stopped surgical because of the equipment. So, 

you all know about that, right? OK. 

A lot of my West Virginia veterans use this clinic because of our 

proximity to DC. What are you all doing, or how are you handling 

that—the Inspector General’s recommendations on what—to correct the problems you have had there, so when they call our office 

we can give an update? 

Dr. LEE. Senator, ensuring the safety of our veterans is our top 

priority—— 

Senator MANCHIN. Sure. 

Dr. LEE [continuing]. Especially at DC VA, and we agree with 

the Inspector General that no patient harm was documented. But 

there is a lot of work left to do and we are actively working to support the DC VA in addressing all the issues raised, including—— 

Senator MANCHIN. Do you have any other—I mean, I understand 

it was a vascular operation that was going on. They put the man 

under and they found out that they did not have the equipment to 

do the operation with. 

Dr. LEE. I do not have any other details to add to the investigation—— 

Senator MANCHIN. Yeah. 

Dr. LEE [continuing]. But we have—we are lending support—— 

Senator MANCHIN. OK. 

Dr. LEE [continuing]. From Central Office, from the very top. 

Senator MANCHIN. You can keep me—— 

Dr. LEE. We will be happy to update you. 

Senator MANCHIN [continuing]. Apprised and my staff, I would 

appreciate it, so we can keep our constituents apprised. 

Dr. LEE. Absolutely. 

Senator MANCHIN. I am happy to join Senator Tester’s—he is 

right there—Performance, Accountability, and Contractor Transparency. I notice that we are doing more and more with contractors, and the problem we have with the contractor is this: when 

there is a problem with the VA and our VA employees, they can 

call our office and we can work with you all, and we get an answer. 

When there is a third party involved, we are out of the loop. We 

just—we cannot connect. 

This is what, I think, we are all concerned about, especially in 

rural States. We here are basically the connector. We are the 

facilitator for that. It looks like you are moving more and more to 

contractors, which is going to take us out of the mainstream to 

where we can have connectivity. 

Is that where you are going, and how do you correct what you 

have already got? Does anybody want to speak to that one? I think 

you are up, Dr. Lee. No one jumped in so I figured it was you. 

Dr. LEE. Well, I will ask, on a specific bill I will ask Mr. Parker 

if he wants to—— 

Senator MANCHIN. Well, forget about the bill. Just tell me what 

you are doing with contractors. 

Dr. LEE. All across the board? We—I think it makes sense for us 

to leverage our strengths wherever we are strong and to leverage 

contractors in the private sector wherever we need that to complement the services. 

54 

Senator MANCHIN. Well, let us talk about HealthNet. HealthNet 

is a problematic one we have. How do we have better connectivity 

with them? How can my staff call and help a veteran, and you have 

them as a third-party administrator? 

Dr. LEE. I think the specific issues with HealthNet—addressing 

those actually goes back to the greater work that we need to do 

with this Committee and the whole Choice program. I know that 

Secretary Shulkin and my colleague, Baligh, will be engaged along 

with all of us on that work in the weeks and months ahead. But 

that is our priority, to look at the entire program and see how do 

we redesign it to better meet the needs of veterans, because we are 

not doing so well right now. 

Senator MANCHIN. How much time is that going to take? I have 

been here for a while on this Committee, and I still have that same 

question. 

Dr. LEE. We are just as pressed as you are, sir. We would like 

to move that quickly. 

Senator MANCHIN. OK. Let us move on. 

Again, I thank my good friend, Senator Murray, for her work on 

the caregiver issue. Some of my Vietnam veterans back home, forty 

percent of my veterans are Vietnam-era veterans—40 percent. 

They have concerns, they have needs that were not identified, were 

not recognized, and were not treated. So, they need full-time care 

for their injuries, and if they do not have a family caregiver then 

they are basically institutionalized. Are you all looking at that, 

thinking of this more from a moral, humane approach, and also 

cost-effectiveness, if we can have some type of care at home, as we 

do with caregivers in our senior citizens? Where are you on that 

issue? Does anybody want to jump in? How about you—I can 

tell—— 

Ms. KABAT. I am happy to—— 

Senator MANCHIN. You are eager to go. Let us go. 

Ms. KABAT. I am happy to answer at least part of that question. 

I think the Caregiver Support Program, which is my area of expertise, is certainly really only one way that VA supports veterans 

who require a lot of assistance in a home setting, and we certainly 

want our veterans to remain at home, in their communities. 

So, we offer a lot of different home- and community-based 

services. 

Senator MANCHIN. Are you having a hard time finding people 

that will give these type of services in-home? Can you contract with 

the same people that do senior services? Do you all piggyback on 

senior services? 

Ms. KABAT. We do work very closely with the aging and disability network. We have some partnerships with HHS around 

doing that. I think I am not an expert in that area, but we would 

be happy to have our—— 

Senator MANCHIN. One thing I am saying is I am sure that Alaska, and I am sure that Montana and Washington—we have senior 

services to try to keep people living in—with a little bit of assistance in their own home, and a lot of veterans, especially our Vietnam veterans, would love to do that, but we just do not have that 

service offered, so they end up—they cannot live by themselves any 

longer. 

55 

Ms. KABAT. We would be happy to come talk to you about our 

home- and community-based programs, our in-home nursing, and 

home health aides. 

Senator MANCHIN. I know Senator Murray has been leading the 

charge on this and I appreciate it very much, but, boy, I am sure 

we all have the same problem. So, I would be happy if you would, 

you know, follow up with us on that. 

Ms. KABAT. Absolutely. 

Senator MANCHIN. We just—these people deserve answers. It 

really is a shame. Some of them come for the services they need 

and it is not that much. They do not ask for a lot. 

I think that is my time. Thank you, Mr. Chairman. 

Chairman ISAKSON. Thank you, Senator Manchin. 

Senator Boozman. 

STATEMENT OF HON. JOHN BOOZMAN, 

U.S. SENATOR FROM ARKANSAS 

Senator BOOZMAN. Thank you, Senator Isakson and Senator 

Tester for having this very important hearing. There are so many 

good initiatives that we are talking about today. As we all know, 

supporting our Nation’s veterans is one of the most important responsibilities that we do as Members of Congress. I know that you 

all are working hard to do that also, which we really appreciate. 

I would like to talk a little bit about S. 681, the Deborah Sampson Act, which I am proud to cosponsor with Senator Tester and 

many other Members of the Committee. It is, as you know, a bipartisan bill that just tries to put much-needed parity to the benefits 

for our women veterans. 

As you all point out in your testimony, women are the fastestgrowing subgroup of veterans, 2.2 million women veterans in the 

United States, over 20,000 in my home State of Arkansas, which, 

again, we are very, very proud of. 

The problem is, as we all know, the VA facilities or the VA programs, to some extent, have not changed to a large extent, yet we 

are now living in a different era. In fact, it was interesting. When 

we had our press conference, one of the female veterans, one of the 

lady veterans talked about being in the VA hospitals, and invariably they were asked if they were looking for their husband. So, 

that is really what we are dealing with. Those are honest mistakes, 

but it is something that we simply need to do away with. 

So, I appreciate you, Dr. Lee, in the sense that you voice strong 

support of several of the bill’s provisions to include the pilot program for peer-to-peer assistance for women veterans and expanding 

the supporting service for veterans’ families program. These are 

really important issues and we are pleased with that. 

I would like to talk to you a bit, though, about the opposition to 

ensuring that each VA medical facility has at least one full- or 

part-time—and I emphasize part-time, at least, women’s health 

care provider. I appreciate the VA may already have the authority 

to make this happen. The fact is that, you know, we talk a lot 

about getting these things fixed, but we truly do hear a lot about 

the issue that are not fixed, and I think that is just a common 

sense way of stepping out in the right direction. 

56 

So, I really encourage the VA to think rethink your opposition to 

the provision. The bill is not requiring a full-time provider. The requirement is at least one full- or part-time provider. Can you all 

comment on that? 

Dr. LEE. Senator, as you said, women veterans are the fastestgrowing segment of the veteran population and VA is very committed to ensuring high-quality care and services for all of our 

women veterans. 

We have made a lot of progress. We know now that we have a 

designated women’s health provider at every medical center and almost every community-based outpatient clinic. Those designated 

women’s health providers are trained to especially meet the needs 

of women veterans and address their post-deployment health 

issues, including military sexual trauma. We also have gynecologists at approximately 130 of our sites of care. We have almost 

200 gynecologists employed in VA. So, we are expanding and interested in expanding that access to specialized GYN care as well. 

And we think that some of the results really show the investment that we have made. We actually exceed the private sector in 

some of our quality outcomes when it comes to breast cancer and 

cervical cancer screening. 

Senator BOOZMAN. We are going to hold you to that. The other 

thing—because I am running out of time, and I apologize for interrupting—but the other thing I would like for you to comment on 

is the—I was surprised at VA’s opposition to tracking data related 

to women veterans. Can you tell me the metrics that are in place 

now, so that we know what is going on? How we identify health 

care needs for veterans currently? Again, I am a little bit surprised 

as to why we would not go forward with actually tracking data to 

give us a better idea. As we solve this problem—it is not a new 

problem. It has been going on for a little bit. 

Dr. LEE. Sir, we are very committed to transparency of our data, 

and what we are striving to do is to use the private sector benchmarks, like HEDIS and CAHPS, which measure quality outcomes 

and also patient satisfaction, and measures like that. In particular, 

with this provision, our only concern was just the breadth of the 

applicability to all of our data. In some cases, for instance, in our 

cemeteries, in the NCA, we may not collect gender-based data, and 

it could impose some additional cost to be able to do that. 

So, I would be happy to work with you on narrowing some of the 

scope of the data collection requirements. 

Senator BOOZMAN. Thank you, Mr. Chairman. 

Chairman ISAKSON. Thank you, Senator Boozman, and thanks to 

all the Members. Thank you for your testimony for the VA today, 

and we will excuse you at this time. You are welcome to stay for 

the second panel, but I ask the second panelists to come forward 

if you would, at this time. 

Thank you very much, Dr. Lee. 

Our second panel will consist of the following: Louis J. Celli, Jr., 

Director, National Veterans Affairs and Rehabilitation Division, 

The American Legion; Kayda Keleher, Associate Director, National 

Legislative Service, Veterans of Foreign Wars; Adrian Atizado, 

Deputy National Legislative Director, Disabled American Veterans; 

Allison Jaslow, Executive Director, Iraq and Afghanistan Veterans 

57 

of America; and J. David Cox, National President, American Federation of Government Employees. 

If you would come forward to your designated seat, we will start 

the hearing. [Pause.] 

Chairman ISAKSON. Let me begin by thanking all of you for your 

patience. You have been sitting through a long but very important 

hearing on the legislation pending before us today, and we appreciate our veteran service organizations coming forward to offer 

their testimony on the proposed legislation. We look forward to 

hearing from each and every one of you. 

We will recognize you for up to 5 minutes. If you have an additional statement you want to submit for the record, we will submit 

that for the record, and then afterwards, if there are any questions, 

we will have questions. 

We will start with Dr. Celli—Mr. Celli. 

STATEMENT OF LOUIS J. CELLI, JR., DIRECTOR, NATIONAL 

VETERANS AFFAIRS AND REHABILITATION DIVISION, THE 

AMERICAN LEGION 

Mr. CELLI. Access to veterans’ health care, ensuring our veterans 

are able to receive the benefits they have earned, quality and services across the spectrum of veterans who faithfully served in defense of this Nation, regardless of conflict, accountability, and 

transparency are some of the very foundational pillars that The 

American Legion continues to build on. 

Chairman Isakson, Ranking Member Tester, and distinguished, 

dedicated defenders of veterans who proudly serve on this Committee, on behalf of Charles Schmidt, the National Commander of 

the largest veteran service organization in the United States of 

America, representing more than 2.2 million dues-paying members, 

and combined with our American Legion family whose members exceed 3.5 million voters, living in every State and American territory, it is my duty and honor to present The American Legion’s position on more than a dozen or so bills being considered by this 

Committee today. 

In addition to the Deborah Sampson Act, The American Legion 

supports Senate Bill 804, the Women Veterans Access to Quality 

Care Act, the Military and Veteran Caregiver Service Improvement 

Act of 2017, the draft bill addressing accountability and whistleblower protections, the tracking of biological implants, and a variety of other bills detailed in our written testimony today, and, of 

course, the Appeals Modernization Act being reintroduced here 

today, with overwhelming bipartisan administration and stakeholder support. 

The American Legion has been calling on Congress and the VA 

to bring women veterans’ issues in line with the availability and 

quality of services provided to their male counterparts for years. 

Throughout the System Worth Saving program, The American Legion has been evaluating and reporting on VA medical centers for 

more than 15 years. Over the years, the gap in services between 

men and women who have served, side by side, has been so prevalent that in 2013, The American Legion dedicated an entire year 

of this program to detailing and highlighting some of the muchneeded improvements we are still fighting for today. 

58 

Our 2013 report on women’s health care addresses all of the vital 

components of the Deborah Sampson Act, as well as in Senate Bill 

804, which is why we strongly urge this Congress and the VA to 

immediately address these issues. Transparency and accountability 

are the cornerstone of leadership and good governance. The American Legion fully supports holding bad actors accountable for their 

actions, and criminals should be prosecuted as soon as possible. 

The American Legion supports giving the Secretary any and all 

tools necessary to lead his agency as needed, but wants to ensure 

that congressional language does not cause a type of unintended 

consequences that we have struggled with in the past. 

As stated in our written testimony, The American Legion wants 

to ensure that Congress provides VA with the tools that are functional, enforceable, and allow the agency to act in a manner that 

promotes good order, discipline, and esprit de corps. Poorly crafted 

legislative language that fails legal and constitutional standards 

only serves to ruin morale and create a system of indecision and 

lack of surety. 

Our first concern with the evidence threshold reduction to substantial evidence is that the bill will encourage an atmosphere that 

reduces the burden of managers to collect appropriate documentation. Managers need to be held accountable to perform expert leadership and oversight, and that includes being diligent about documenting poor performance or bad behavior. Egregious behavior 

would not be affected by this provision as it would surpass the 

already established evidentiary threshold of preponderance of 

evidence. 

The second concern we raise is with the provision that strips 

judges of the ability to mitigate penalties. While on its face it 

seems logical to force the judge to accept the agency’s decision, regardless of discipline or termination, The American Legion is reminded of the Linda Weiss decision, in which the presiding judge 

states, in part, ‘‘In conclusion, I find the appellant has rebutted the 

presumption that the penalty was reasonable. If the statute did not 

prohibit it, I would mitigate the penalty. However, because that is 

not allowed, the only option is to reverse the action outright.’’ 

Please review this language. 

Next, as important as our caregiver program is, it is imperative 

that Senate Bill 591 not only pass but that benefits be extended 

to all pre-9/11 veterans. The American Legion is committed and 

resolute on this issue, and will not waiver in our support to ensure 

all veterans are treated equally under the law. 

Finally, it is with great pleasure that The American Legion testifies in support of the Appeals Modernization Act. This support will 

streamline and modernize a program that desperately needs it, 

while preserving and expanding veteran protections and, in the 

long run, the increased efficiency will save money with providing 

benefits faster and more efficiently. As one of the founding organizations who helped develop this new program, The American Legion is proud to support S. 1024, the Veterans Appeals Improvement and Modernization Act of 2017. 

[The prepared statement of Mr. Celli follows:] 

59 

PREPARED STATEMENT OF LOUIS J. CELLI, JR., DIRECTOR OF NATIONAL VETERANS

AFFAIRS & REHABILITATION DIVISION, THE AMERICAN LEGION

CHAIRMAN ISAKSON, RANKING MEMBER TESTER, AND DISTINGUISHED MEMBERS OF

THE COMMITTEE; On behalf of our National Commander, Charles E. Schmidt, and 

the over 2.2 million members of The American Legion, we thank you for this opportunity to testify regarding The American Legion’s positions on pending legislation 

before this Committee. Established in 1919, and being the largest veteran service 

organization in the United States with a myriad of programs supporting veterans, 

we appreciate the Committee focusing on these critical issues that will affect veterans and their families. 

S. 23: BIOLOGICAL IMPLANT TRACKING AND VETERAN SAFETY ACT OF 2017

To amend title 38, United States Code, to direct the Secretary of Veterans Affairs to 

adopt and implement a standard identification protocol for use in the tracking 

and procurement of biological implants by the Department of Veterans Affairs, 

and for other purposes. 

The American Legion remains concerned about the Veterans Health Administration’s (VHA) lack of a robust prosthetic supply tracking system. The American Legion has testified about the Department of Veterans Affairs’ (VA) prosthetic tracking system at numerous hearings. On January 15, 2014, The American Legion testified before House Veterans’ Affairs Subcommittee on Oversight and Investigations 

urging Congress to require VA to implement an automated tracking system that addresses vulnerabilities. The recommendations were: one, initially record the serial 

number of a surgical implant device when procured and placed into VA’s inventory; 

two, record the expiration date; and three, that a record tracking flag be put into 

place to alert VA staff when the product is nearing its expiration date. 

On March 19, 2015, The American Legion’s written testimony for the record was 

presented to the House Veterans’ Affairs Subcommittee on Oversight and Investigations in support of H.R. 1016: The Biological Implant Tracking and Veteran Safety 

Act of 2015. 

VA’s Office of Inspector General (VAOIG) has conducted numerous audits looking 

at VA’s prosthetic inventory system with the last audit completed in 2012. VAOIG 

issued Report No. 11–02254–102 on March 8, 2012, titled ‘‘Audit of VA’s Management and Acquisition of Prosthetic Limbs.’’ The VAOIG identified the following 

challenges: 

VHA needed to strengthen the VA medical centers (VAMC) management of 

prosthetic supply inventories to avoid spending funds on excess supplies and 

disruptions to patient care due to supply shortages. VHA also needs to improve 

the comprehensiveness of its inventory information and standardize annual 

physical inventory requirements. It was estimated that during April through 

October 2011, VAMCs maintained inventories of nearly 93,000 prosthetic supply 

items with a total value of ∼$70 million. Of the 93,000 items, it was estimated 

that VAMC inventories exceeded current needs for almost 43,500 items (47 percent) and were too low for nearly 10,000 items (11 percent), increasing the risk 

of supply shortages. 

VAMCs did not maintain optimal inventory levels because of the following 

reasons: 

• Lack of integration between the prosthetic inventory system and other VHA 

systems, 

• Inefficiencies from using two inventory systems, 

• Inadequate staff training on inventory management principles and techniques, 

• Insufficient VHA Central Office and Veterans Integrated Service Network 

(VISN) oversight of VAMC inventory management practices, and 

• Inadequacies in VHA’s Inventory Management Handbook. 

As a result, VAMCs spent ∼$35.5 million to purchase unnecessary prosthetic supplies and increased the risk of supply expiration, theft, and supply shortages. In addition, VHA could not accurately account for these inventories. 

VHA responded to the report stating the VA would work to develop a plan to replace the Prosthetic Inventory Package (PIP) and the Generic Inventory Package 

(GIP) with a more comprehensive system. The target completion date was March 30, 

2015. As noted in the 2012 VAOIG report, VHAs hope is to ‘‘removing recalled products from inventory within 24 hours of a recall.’’ 

The American Legion is concerned that there is still no clear policy on how veterans who have received implants are tracked. Attention must be paid to veterans 

who are already downstream in the process. Without consistent tracking of imVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6621 Z:\ACTIVE\051717.TXT PAULIN
60 

1 American Legion Resolution No. 377 (2016): Support for Veteran Quality of Life 

plants, including positive identification by serial number and other identifying factors, uncertainty remains as to how veterans are served in the case of recalls. The 

American Legion wants to see a more comprehensive procedure and policy clearly 

defined by Central Office to ensure consistency in all Veteran Integrated Service 

Networks (VISNs). 

In 2014, VHA required VA Medical facilities to begin using the Catamaran Point 

of Use (POU) Inventory System that interfaces with the Veterans Health Information Systems and Technology Architecture (VistA). The system is not utilized at 

every VA medical center, case in point, the Washington DC VA Medical Center. 

In response to allegations made by a confidential complainant, the VAOIG investigated equipment and supply issues at the Washington DC VA Medical Center. The 

VAOIG released an Interim Summary Report on April 12, 2017, which identified 

some serious and troubling deficiencies at the Medical Center that place patients 

at unnecessary risk. Although VAOIG has not identified at this time any adverse 

patient outcomes, they found that there was no effective system to ensure that supplies and equipment that were subject to patient safety recalls were not used on patients and over $150 million in equipment or supplies had not been inventoried in 

the past year and therefore had not been accounted for. 

Five years have passed since VAOIG reported on this issue and VA promised Congress, veterans, and American taxpayers that they would develop a plan to replace 

the Prosthetic Inventory Package (PIP) and the Generic Inventory Package (GIP) 

with a more comprehensive system. 

We are here today because the plan VA put in place is not working. Implementing 

a biological implant tracking system is essential to assuring the health, safety and 

the life of a veteran is safeguarded. 

Resolution No. 377: Support for Veteran Quality of Life, supports any legislation 

and programs within the VA that will enhance, promote, restore or preserve benefits 

for veterans and their dependents, including, but not limited to, the following: timely access to quality VA health care; timely decisions on claims and receipt of earned 

benefits; and final resting places in national shrines and with lasting tributes that 

commemorate their service.1

The American Legion supports passage of S. 23. 

S. 112: CREATING A RELIABLE ENVIRONMENT FOR VETERANS’ DEPENDENTS ACT

To amend title 38, United States Code, to authorize per diem payments under comprehensive service programs for homeless veterans to furnish care to dependents 

of homeless veterans, and for other purposes. 

S. 112 will help ensure that VA funded homeless shelters may be reimbursed for 

services provided to the dependent of a veteran, thereby reducing the risk of separating families during a difficult time. Based upon the Point-in-Time count on a 

single night in January 2016, almost all veterans were experiencing homelessness 

in households without children (97 percent or 38,340 veterans). About 3 percent 

(1,131) were veterans who were homeless as part of a family. If enacted, S. 112 

would provide reimbursement for VA grantees who house homeless veterans with 

a dependent. 

This would be quite beneficial for those homeless veterans with dependents, particularly women veterans who often carry the most responsibility of taking care of 

their children. Housing is a key component in stabilizing the veteran and putting 

him/her back on track to independent living. This bill would provide an avenue 

where the veteran would not separate from their child and/or spouse to obtain housing, and crucial services, for a successful reintegration back into mainstream 

society. 

The American Legion strongly believes that homeless veteran programs should be 

granted sufficient funding to provide supportive services such as, but not limited to, 

outreach, health care, rehabilitation, case management, personal finance planning, 

transportation, vocational counseling, employment, and education. Furthermore, 

The American Legion continues to place special priority on the issue of veteran 

homelessness. With veterans making up approximately 11 percent of our Nation’s 

total adult homeless population, there is plenty of reason to give this issue special 

attention. Along with various community partners, The American Legion remains 

committed to seeing VA’s goal of ending veteran homelessness come to fruition. Our 

goal is to ensure that every community across America has programs and services 

in place to get homeless veterans into housing (along with necessary healthcare/ 

treatment) while connecting those at-risk veterans with the local services and resources they need. We hope to see that with the expansion of assistance afforded 

61 

2 American Legion Resolution No. 324 (2016): Support Funding for Homeless Veterans 3 American Legion Resolution No. 377 (2016): Support for Veteran Quality of Life 

to homeless veterans and their dependents, there will also be an increase in funding 

to support. We estimate that an additional $10 million annually will be sufficient 

to accomplishing this goal. 

Resolution No. 324: Support Funding for Homeless Veterans, supports any legislation and programs within and outside the VA that will enhance, promote, and assist 

homeless veterans in a timely fashion.2

The American Legion supports S. 112. 

S. 324: STATE VETERANS HOME ADULT DAY HEALTH CARE IMPROVEMENT ACT OF 2017

To amend title 38, United States Code, to improve the provision of adult day health 

care services for veterans. 

State Veterans Homes are facilities that provide nursing home and domiciliary 

care. They are owned, operated and managed by state governments and date back 

to the post-Civil War era when many states created them to provide shelter to 

homeless and disabled veterans. 

Currently, there are only two Adult Day Health Care programs at State Veterans 

Homes in the United States. Both are located on Long Island, New York. However, 

these programs could easily be offered at the other 151 State Veterans Homes located throughout the country. 

S. 324 would provide a no cost, medical model Adult Day Health Care to veterans 

at State Veterans Homes who are 70 percent or more service-connected disabled. 

This bill is an extension of Public Law (P.L.) 109–461: Section 211, Veterans Benefits Health Care, and Information Technology Act of 2006, which currently provides 

no cost nursing home care at any State Veterans Home to veterans who are 70 percent or more disabled for their service-connected disability and who require significant assistance from others to carry out daily tasks. 

Adult Day Health Care is a daily program for disabled veterans who need extra 

assistance and special attention in their day to day lives. Adult Day Health Care 

programs provide disabled veterans and their families with a high-quality alternative to nursing home care and quality outpatient services for those suffering from 

debilitating illnesses or disabilities. These programs provide a range of services, 

from daily activities such as bathing, full medical services, and physical therapy. 

The focus of the program is on improving a disabled veterans’ quality of life, which 

is why we support expanding this great option of care for our veterans. 

American Legion Resolution No. 377: Support for Veteran Quality of Life supports 

any initiative that urges Congress and the Department of Veterans Affairs (VA) to 

enact legislation and programs within the VA that will enhance, promote, restore 

or preserve benefits for veterans and their dependents, including, but not limited 

to, the following: timely access to quality VA health care; timely decisions on claims 

and receipt of earned benefits, and final resting places in national shrines and with 

lasting tributes that commemorates their service.3

The American Legion supports passage of S. 324. 

S. 543: PERFORMANCE ACCOUNTABILITY AND CONTRACTOR TRANSPARENCY ACT OF 2017

To amend title 38, United States Code, to require the Secretary of Veterans Affairs 

to include in each contract into which the Secretary enters for necessary services 

authorities and mechanism for appropriate oversight, and for other purposes. 

The provisions of this bill falls outside the scope of established resolutions of The 

American Legion. As a large, grassroots organization, The American Legion takes 

positions on legislation based on resolutions passed by the membership in meetings 

of the National Executive Committee. With no resolutions addressing the provisions 

of the legislation, The American Legion is researching the material and working 

with our membership to determine the course of action which best serves veterans. 

The American Legion has no current position on S. 543. 

S. 591: MILITARY AND VETERAN CAREGIVER SERVICES IMPROVEMENT ACT OF 2017

To expand eligibility for the program of comprehensive assistance for family caregivers of the Department of Veterans Affairs, to expand benefits available to participants under such program, to enhance special compensation for members of the uniformed services who require assistance in everyday life, and for other purposes. 

The struggle to care for veterans wounded in defense of this Nation takes a terrible toll on families. In recognition of this, Congress passed, and President Barack 

Obama signed into law, the Caregivers and Veterans Omnibus Health Services Act 

62 

4 American Legion Resolution No. 259 (2016): Extend Caregiver Benefits to Include Veterans 

Before September 11, 2001 5 VA Caregiver Program Coalition Letter 

6 American Legion Resolution No. 24: Caregiver Program 

of 2010. The unprecedented package of caregiver benefits authorized by this landmark legislation includes training to help to ensure patient safety, cash stipends to 

partially compensate for caregiver time and effort, caregiver health coverage if they 

have none, and guaranteed periods of respite to protect against burnout. 

The comprehensive package, however, is not available to most family members 

who are primary caregivers to severely ill and injured veterans. Congress opened 

the program only to caregivers of veterans severely ‘‘injured,’’ either physically or 

mentally, in the line of duty on or after Sept. 11, 2001. It is not open to families 

of severely disabled veterans injured before 9/11, nor is it open to post-9/11 veterans 

who have severe service-connected illnesses, rather than injuries. 

The American Legion has long advocated for expanding eligibility and ending the 

obvious inequity it created. Simply put, a veteran is a veteran, and all veterans 

should receive the same level of benefits for equal service. As affirmed in American 

Legion Resolution No. 259: Extend Caregiver Benefits to Include Veterans Before 

September 11, 2001, The American Legion supports legislation to remove the date 

September 11, 2001, from Public Law 111–163 and revise the law to include all veterans who otherwise meet the eligibility requirements.4

The American Legion is aware of the obstacles to an expansion of the program, 

though. Perhaps the biggest is protracted frustration over how the current caregiver 

program operates. Thus, we applaud the Department of Veterans Affairs (VA) recent decision to conduct an internal review of the program. That decision is an acknowledgment that the VA cares about the success of this program, and is committed to the difficult task of improvement. 

The American Legion is also committed to the success of this program. We have 

long supported our veteran caregivers by providing accredited representation, advice 

and education. We created a new Caregiver Coordinator position in our Washington 

Office. We participated in the numerous roundtables conducted during the present 

review of the program. We are honored to be working with a broad coalition to identify and bolster support for caregivers, both now and long-term. 

We have joined on to a coalition letter organized by the Elizabeth Dole Foundation to Secretary Shulkin dated May 15, 2017. This letter offers some perspective 

on the issues that have clouded this program since its inception, and its recommendations are informed by the experiences and stories of caregivers themselves. The 

letter is incorporated by reference, and we think action based on the letter will go 

a long way to righting the program and preparing it for expansion.5

The American Legion is also rolling out a comprehensive caregiver program to our 

Departments and recently passed Resolution No. 24: Caregiver Program. The program promises to ‘‘address the needs of military and veteran caregivers by assisting 

with, but not limited to employment/vocational referral, Federal and state education 

assistance, Post-9/11 caregiver benefit support, veteran directed care, partner support with the Elizabeth Dole Foundation and various caregiver support organizations, assistance with death gratuity, and terminal illness.’’ 6

The American Legion, together with The American Legion Auxiliary, is building 

a comprehensive program that is sustainable and replicable and will be included in 

the department and post activities and programs through our network of more than 

15,000 posts and detachments across the United States and abroad. The American 

Legion’s Caregiver Coordinator will work to ensure that veterans and their caregivers are well informed and educated about the benefits and resources available 

to them. The burden of ensuring support for these caregivers does not—and should 

not—fall to the VA alone. 

The American Legion is optimistic that providing expanded support services and 

stipends to caregivers of veterans to all eras is not only possible but also feasible. 

We are, therefore, proud to offer our support for S. 591, the Military and Veteran 

Caregiver Services Improvement Act of 2017. 

The American Legion supports passage of S. 591. 

63 

7Sally G. Haskell, M.D., Post-Deployment Pain: Musculoskeletal Conditions in Male and Female OEF/OIF Veterans (August 2012) 8 American Legion Resolution No. 377 (2016): Support for Veteran Quality of Life 

S. 609: CHIROPRACTIC CARE AVAILABLE TO ALL VETERANS ACT OF 2017

To amend the Department of Veterans Affairs Health Care Programs Enhancement 

Act of 2001 and title 38, United States Code, to require the provision of chiropractic care and services to veterans at all Department of Veterans Affairs 

medical centers and to expand access to such care and services, and for other 

purposes. 

It is not uncommon for veterans who suffer from musculoskeletal and connective 

system diseases to go untreated at VA medical centers because of a lack of available 

chiropractic care and services. At present, less than one-third of VA medical centers 

offer chiropractic care. S. 609 will require a program under which the Secretary of 

Veterans Affairs will provide chiropractic care and services through the VA at (1) 

no fewer than 75 medical centers by December 31, 2018, and (2) all medical centers 

by December 31, 2020. 

According to VA, the most frequent medical diagnosis among Iraq and Afghanistan veterans are musculoskeletal and connective system diseases.7 Since 2002, 

there have been over 195,000 Post-9/11 veterans that have pursued care for these 

conditions. The American Legion, thus, views easy access to chiropractic care as a 

priority necessity for veterans. 

American Legion Resolution No. 377: Support for Veteran Quality of Life, supports 

any legislation and programs within the VA that will enhance, promote, restore or 

preserve benefits for veterans and their dependents, including, but not limited to, 

the following: timely access to quality VA health care, timely decisions on claims 

and receipt of earned benefits, and final resting places in national shrines and with 

lasting tributes that commemorate their service.8

The American Legion supports passage of S. 609. 

S. 681: DEBORAH SAMPSON ACT

To amend title 38, United States Code, to improve the benefits and services provided 

by the Department of Veterans Affairs to women veterans, and for other 

purposes. 

Women veterans have consistently been overlooked by the Department of Veterans Affairs for decades. The American Legion feels that it is time that we thank 

this growing military demographic with, at a minimum, the healthcare they deserve. 

Women veterans are the fastest growing demographic serving in the military, so we 

can expect the number of women veterans using Department of Veterans Affairs 

(VA) healthcare to increase dramatically. The United States has more than 2 million 

women veterans who live in every Congressional district in the Nation, and the 

number of women veterans seeking VA health care has doubled since 2000. 

Although the VA has made improvements in women’s healthcare, many challenges remain. The Deborah Sampson Act would help rectify many issues women 

veterans face by improving the ability of the VA to provide women’s care, improve 

services, and change its culture to embrace this growing population. It does so by, 

inter alia: 

• Enhancing services that empower women veterans to support each other, • Establishing a partnership between the Department of Veterans Affairs and at 

least one community entity to provide legal services to women veterans, • Make adjustments to care that the VA can provide newborns, • Addressing significant barriers women veterans face when seeking care, • Require the VA to collect and analyze data for every program that serves veterans, including the Transition Assistance Program, by gender and minority status, 

and require that they publish data as long as it does not undermine the anonymity 

of a veteran. 

The American Legion recommends the following change to the bill. A separate 

track to address specific needs of women veterans attending the Transition Assistance Program. It has been noted that women veterans are more likely to seek assistance by talking with other women on gender-sensitive assistance. For example, 

the VA Trauma Service Program (TSP) allows women veterans to choose to partake 

in a TSP information session with a group or with an individual woman coordinator. 

More women veterans opt to conduct the information session with an individual 

woman coordinator. 

Additionally, The American Legion requests the Department of Defense transfer 

contact information of all transitioning women veterans to the VA and the DepartVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6621 Z:\ACTIVE\051717.TXT PAULIN
64 

9 American Legion Resolution No. 147 (2016): Women Veterans 10 American Legion Resolution No. 364 (2016): Department of Veterans Affairs to Develop Outreach and Peer to Peer Program for Rehabilitation 

ment of Labor (DOL). This would provide an opportunity for the VA, DOL, and Veterans Service Organizations to follow-up with women veterans after separation to 

offer additional support, programs, and services. 

American Legion Resolution No. 147: Women Veterans, calls on The American Legion to work with Congress and the VA to ensure that the needs of current and future women veteran populations are met. It calls on the VA to provide full comprehensive health services for women veterans department-wide.9

American Legion Resolution No. 364: Department of Veterans Affairs to Develop 

Outreach and Peer to Peer Program for Rehabilitation supports the President of the 

United States and the U.S. Congress passing legislation to call on the Secretary of 

Veterans Affairs to develop a national program to provide peer to peer rehabilitation 

services based on the recovery model tailored to meet the specialized needs of current generation combat-affected veterans and their families.10

The American Legion supports passage of S. 681 with amendments as 

noted above. 

S. 764: VETERANS EDUCATION PRIORITY ENROLLMENT ACT OF 2017

To amend title 38, United States Code, to improve the enrollment of veterans in certain courses of education, and for other purposes. 

S. 764, the Veterans Education Priority Enrollment Act of 2017 would mandate 

that if an educational institution administers priority enrollment to certain students 

and receives educational benefits from the VA, then they shall also administer priority enrollment to student veterans and active military students. 

Resolution No. 318: Ensuring the Quality of Servicemembers and Veteran Student’s Education at Institutions of Higher Education urges Congress to find a solution that ensures colleges and universities that receive Federal tuition payments 

grant priority enrollment to those individuals who qualify for either the Department 

of Defense or Department of Veterans Affairs education benefits. 

However, due to inherent complexities with priority enrollment, The American Legion requires consultation and endorsement from the military education collaborative Servicemembers Opportunity Colleges and the National Association of Veterans’ Program Administrators before supporting. If the present language of the 

Veterans Education Priority Enrollment Act of 2017 results in reputable institutions 

of higher learning choosing to stop processing GI Bill benefits, than it will do more 

harm than good. Additionally, implementation concerns such as equity questions 

(should a freshman student veteran get priority over the last semester senior who 

needs the course to graduate) and existing priority systems on public institutions 

need to be resolved. While we applaud the attention that has been shown on this, 

the unknown second and third-order affect preclude our immediate support. 

The American Legion has no current position on S. 764. 

S. 784: VETERANS’ COMPENSATION COST-OF-LIVING ADJUSTMENT ACT OF 2017

To increase, effective as of December 1, 2017, the rates of compensation for veterans 

with service-connected disabilities and the rates of dependency and indemnity 

compensation for the survivors of certain disabled veterans, to amend title 38, 

United States Code, to improve the United States Court of Appeals for Veterans 

Claims, to improve the processing of claims by the Secretary of Veterans Affairs, 

and for other purposes. 

S. 784 would provide a Cost-of-Living Allowance (COLA) effective December 1, 

2017. Disability compensation and pension benefits awarded by the Department of 

Veterans Affairs (VA) are designed to compensate veterans for medical conditions 

incurred through service, or who earn below an income threshold. When the cost 

of living increases due to inflation, it is only appropriate that veterans’ benefits correspondingly increase. 

For nearly 100 years, The American Legion has advocated on behalf of our Nation’s veterans, to include the awarding of disability benefits associated with chronic 

medical conditions that manifest related to service of this Nation. Annually, veterans and their family members are subjects in the debate regarding the annual 

COLA for these disability benefits. For these veterans and their family members, 

COLA is not simply an acronym or a minor adjustment in benefits; instead, it is 

a tangible benefit that meets the needs of the increasing costs of living in a nation 

that they bravely defended. 

65 

11 American Legion Resolution No. 187 (2016): Department of Veterans Affairs Disability Compensation 12 American Legion Resolution No. 147 (2016): Women Veterans 

As affirmed in The American Legion’s Resolution No. 187: Department of Veterans 

Affairs Disability Compensation, passed at the 2016 National Convention, The 

American Legion supports legislation ‘‘to provide a periodic cost-of-living adjustment 

increase and to increase the monthly rates of disability compensation.’’ 11

The American Legion supports S. 784. 

S. 804: WOMEN VETERANS ACCESS TO QUALITY CARE ACT

To improve the provision of health care for women veterans by the Department of Veterans Affairs, and for other purposes. 

Women veterans are the fastest growing demographic currently serving in the 

military. They deserve a robust and comprehensive VA health care system to care 

for them when they transition from active duty to civilian life. Over the years, VA 

has made great strides in making healthcare services available for women veterans, 

such as ensuring more women veterans see providers who meet their gender-specific 

health care needs. However, there is still much work to be done to meet the overall 

healthcare needs of women veterans. Even though the military has seen a significant increase in the number of women joining the military, the number of women 

veterans enrolling in the VA health care system remains relatively low when compared to their male counterparts. 

Despite improvements VA has taken to broaden their healthcare programs and 

services for women veterans, The American Legion has found there are still numerous challenges, and barriers women veterans face with enrolling in the VA including: 

• Women veterans often do not self-identify as veterans, 

• Women veterans are often not recognized by VA staff as veterans, 

• Among women veterans, there can be a lack of awareness, knowledge, and understanding of their VA benefits, 

• There is an incorrect, but prevalent stigma, that the VA healthcare system is 

an ‘‘all-male’’ healthcare system, and 

• The VA does not provide all of the gender-specific health care needs of their enrolled women veterans. 

As a result, The American Legion believes in ensuring women veterans receive 

the highest quality VA health care, and that the care is tailored to meet their gender-specific health care needs. 

This legislation directs VA to establish standards ensuring all VA facilities meet 

gender-specific healthcare needs, integrate those standards into VA’s prioritization 

methodology when determining funding needs, and issue reports on those standards, 

especially where facilities may be failing to meet standards. S. 804 would make VA’s 

compliance with women’s healthcare needs transparent through public dissemination of information on VA websites. Finally, S. 804 would ensure greater representation within the VA’s women’s healthcare provider positions including obstetricians 

and gynecologists. These measures will help address concerns of women veterans 

and improve the comprehensive nature of healthcare available to women throughout 

the VA. 

American Legion Resolution No. 147: Women Veterans, supports, inter alia: 

• That the VA provides full comprehensive health services for women veterans 

department-wide, including, but not limited to, increasing treatment areas and diagnostic capabilities for female veteran health issues, improved coordination of maternity care, and increase the availability of female therapists/female group therapy to 

better enable treatment of Post-Traumatic Stress Disorder from combat and MST 

in women veterans; 

• That the VA furnish gender-specific prosthetic appliances, orthotics, and services while eliminating the male-only approach to the treatment of all injuries and 

illnesses.12

The American Legion supports S. 804. 

66 

13 American Legion Resolution No. 307 (2016): Prohibit Discrimination and Acts of Reprisal 

by Employers Against Veterans that Seek Treatment for their Service-Connected Disabilities 

S. 899: DEPARTMENT OF VETERANS AFFAIRS VETERAN TRANSITION IMPROVEMENT ACT

To amend title 38, United States Code, to ensure that the requirements that new Federal employees who are veterans with service-connected disabilities are provided 

leave for purposes of undergoing medical treatment for such disabilities apply 

to certain employees of the Veterans Health Administration, and for other 

purposes. 

Wounded Warrior Federal Leave Act (P.L. 114–75) was signed into law after 

unanimous passage by Congress. The Act allowed up to 104 hours of paid sick leave 

available to new Federal employees hired by ‘‘Title 5’’ Federal agencies with serviceconnected veteran disabilities rated at 30 percent or more to attend medical treatment related to these conditions. 

Some employers are not required by law to allow veterans with service-connected 

disabilities to be absent from the workplace to receive the necessary medical treatment for their disabilities. In its current state, the Wounded Warrior Federal Leave 

Act does not protect veterans working for the Department of Veterans Affairs (VA). 

Senator Hirono’s bill extends this protection to VA employees, who are ‘‘Title 38 employees’’ and don’t have the same level of protection as ‘‘Title 5’’ Federal employees. 

If enacted, this bill would amend Title 38, United States Code, to prohibit discrimination and acts of reprisal against persons who receive treatment for illnesses, 

injuries, and disabilities incurred in or aggravated by service in the Armed Forces. 

In addition, it would promote the well-being of the veteran and create an atmosphere for efficiency and productivity within the agency. The American Legion believes it is in the best interest of the veteran, and the VA, that this bill pass. 

American Legion Resolution No. 307: Prohibit Discrimination and Acts of Reprisal 

by Employers Against Veterans that Seek Treatment for their Service-Connected Disabilities, supports any legislation that prohibits the discrimination and acts of reprisals by employers against veterans that seek treatment for their service-connected disabilities.13

The American Legion supports this S. 899. 

S. 1024: VETERANS APPEALS IMPROVEMENT AND MODERNIZATION ACT OF 2017

To amend title 38, United States Code, to reform the rights and processes related to 

appeals of decisions regarding claims for benefits under the laws administered 

by the Secretary of Veterans Affairs, and for other purposes. 

The American Legion currently holds power of attorney on more than three-quarters of a million claimants. We spend millions of dollars each year defending veterans through the claims and appeals process, and our success rate at the Board 

of Veterans Appeals (BVA) continues to hover around 80 percent. 

When VA invited stakeholders to the table to discuss appeals modernization, The 

American Legion knew that appeals modernization could not start with looking at 

the appellate process; the conversation needed to begin at the point of the initial 

adjudication; so the first things the group looked at was the VBA decision notice. 

As a negotiated component of this framework, VBA has promised to improve their 

decision notice which will better inform veterans and their advocates. More importantly, a better decision letter will not only help veterans better prepare if they need 

to appeal, but it will help prevent appeals from being introduced because the veterans were not properly informed about the basis for denial. After VA’s commitment 

to improving the initial decision letter, stakeholders helped sort through barriers 

that slowed appeals processing and highlighted another of The American Legion’s 

primary concerns—centralized training. 

VA further argued that if there were a process within the appeals system that 

allowed judges to review disputed decisions that were adjudicated at the regional 

offices, based only on the same information that the regional office had at the time 

the claim was originally decided, then BVA would be able to provide a ‘‘feedback 

loop’’ they could use to help train and educate VBA’s regional offices. Additionally, 

this would help identify regional offices where the decisions uniformly fail to address specific legal issues and improve initial decisions. 

It was with these two foundational underpinnings that the big six VSOs, in addition to state and county service officers, veteran advocate attorneys, and other interested groups worked with senior VA officials from VBA and BVA to design the 

framework of the legislation being discussed again here today. 

The guiding principle leading all of our discussions was ensuring that we preserved all of the claimant’s due process rights while ensuring that they did not lose 

67 

any claims effective date time, which we were not only able to do successfully, but 

we were able to increase protections for veterans through this new process. 

As you are aware, the design of the proposed appeals process allows for multiple 

options for claimants, as well as options for additional claim development, the option 

to have the decision reviewed by another adjudicator (difference of opinion) and the 

chance to take your case straight to the court to have a law judge review the decision and make a ruling on your claim. 

The proposed bill provides veterans additional options while maintaining the effective dates of original claims. Veterans can elect to have an original decision reviewed at the ROs through a Difference of Opinion Review (DOOR) which is similar 

to the current functions of the Decision Review Officers (DROs). A DOOR provides 

an opportunity for a claimant to discuss concerns regarding the original adjudication 

of a particular issue, or the entire claim, prior to appealing to the BVA. Additionally, the administrative actions remove the need for a Notice of Disagreement 

(NOD), a process that took 412.8 days, according to a report released to The American Legion following the end of last fiscal year. The April 24, 2017, VA Monday 

Morning Workload Report indicates the delay has increased over two weeks, to 

429.4 days VA Monday Morning Workload Report, April 24, 2017. 

Beyond improvements in administrative functions, the proposed bill enables 

claimants to select a process other than the standard multi-year long backlog, if 

they want to have an appeal addressed more expediently if they believe they have 

already provided all relevant and supporting evidence. Similar to the Fully Developed Claims program, veterans will be able to elect to have their appeals reviewed 

more expeditiously by attesting that all information is included within the claim, 

VA’s records, or submitted with VA Form 9 indicating the intent to have their 

claims expeditiously forwarded to BVA for review. 

Veterans indicating that they may need additional evidence or time could elect 

to have their claim reviewed in BVA’s current format of allowing additional evidence 

entered. For veterans requiring additional evidence, such as lay statements from 

friends and families or a private medical examination rebutting VA’s medical examinations, this is a viable alternative to allow the time and opportunity to prove a 

veteran’s case and secure the benefits they have earned. 

Recognizing that an increased burden is placed upon veterans, VA will ensure veterans maintain their effective dates, even if BVA denies the claim. If a veteran’s 

appeal is denied by BVA, the veteran can submit new and minimally relevant evidence to reopen the claim at the RO while holding the original effective date that 

may have been established long before the second filing for benefits. 

Similar to FDC, The American Legion will work tirelessly to ensure this program 

is successful and appreciates the Committee’s support by including stakeholders in 

the certification process as this program is officially launched. We recognize the increased burden it can place on veterans; we also recognize that our approximately 

3,000 accredited representatives have the tools to ensure success for the veterans 

and claimants we represent. Throughout the year we will continue to work with our 

representatives, our members, and most importantly our veterans to understand the 

changes in law, and how they will be able to succeed with these new changes. 

The American Legion recognizes that this is a huge undertaking and that as with 

any contract, the agreement is only as good as the people who sign it. We agree 

that there is a lot that is not going to be included in the statutory language and 

that this initiative places a lot of trust and responsibility on VA to do the right 

thing. The American Legion believes that the Secretary needs this flexibility to set 

this program up effectively and that VA will continue to work with stakeholders and 

Congress as we move forward. Any deviation from that plan will upset overseers 

and stakeholders alike, and will surely result in veterans being cheated as we all 

will ending up right back here in this hearing room to fix it. 

To come to an agreement, stakeholders needed to trust VA to do the things they 

promised to do, and do them in good faith. There are a lot of nuances that aren’t 

able to be legislated, and the VSOs are going to be providing constant feedback as 

we move forward with appeals modernization. We believe that the architects of this 

proposal have acted in good faith, and we support their efforts to modernize the appeals process for the good of veterans, for the good of the process, and for the good 

of the American taxpayer. 

As affirmed in The American Legion’s Resolution No. 5: Department of Veterans 

Affairs Appeals Process, The American Legion urges the Department of Veterans AfVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6621 Z:\ACTIVE\051717.TXT PAULIN
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14 American Legion Resolution No. 05 (2016): Department of Veterans Affairs Appeals Process 15 ‘‘Legion: VA director’s overdue firing applauded’’: Nov. 24, 2014 16Weiss v. DVA, 2016 MSPB (February 16, 2016) 

fairs to address all claims, to include its growing inventory of appeals in an expeditious and accurate manner.14

The American Legion supports S. 1024: Veterans Appeals Improvement 

and Modernization Act of 2017. 

DRAFT BILL: DEPARTMENT OF VETERANS AFFAIRS ACCOUNTABILITY AND

WHISTLEBLOWER PROTECTION ACT

To amend title 38, United States Code, to improve the accountability of employees 

of the Department of Veterans Affairs, and for other purposes. 

Reacting to the firing of Phoenix VA Healthcare System Director in 2014, then 

National Commander of The American Legion Mike Helm noted: 

‘‘This is one long-overdue step in a journey that is far from over. Unfortunately, as we all soon discovered after the story broke last April, this problem was not isolated to Phoenix. It was widespread, and we expect to see 

additional consequences, even criminal charges if they are warranted, for 

anyone who knowingly misled veterans and denied them access to medical 

services.’’ 15

The American Legion believes it is important to ensure there is accountability at 

all levels within VA and that the process is transparent. Where VA employees are 

found to have engaged in wrongdoing, The American Legion supports any legislation 

that increases the authority given to the Secretary of VA to remove unscrupulous 

employees. 

The American Legion supports increased accountability, and those employees 

found guilty of having committed crimes at the expense of the veterans entrusted 

to their care should never profit from those crimes. To receive bonuses based on manipulation and lies, to abuse relocation reimbursement, or to remain employed found 

watching pornographic material at work is unacceptable. We also believe in providing the Department of Veterans Affairs (VA) whistleblowers with a means to 

solve problems at the lowest level possible, while offering them protection from reprisals and genuine protection for those who reprise against them. This bill would 

establish a new system that employees could use to report retaliation claims, and 

supervisors would be required to report all retaliation claims to facility directors, 

eliminating the possibility for facility leaders to claim plausible deniability of such 

assertions. 

There are some apprehensions with this bill we would like to address. The provision that seeks to lower the threshold of evidence from ‘‘preponderance of the evidence’’ to ‘‘substantial evidence’’ is concerning. We do not want to encourage an atmosphere that reduces the burden of managers to collect appropriate documentation. Managers need to be held accountable to perform expert leadership and oversight, and that includes being diligent about documenting poor performance or bad 

behavior. Egregious behavior would not be affected by this provision as it would surpass the already established evidentiary threshold of a preponderance of evidence. 

The second concern we raise is with the provision that strips the Merit Systems 

Protection Board (MSPB) of the ability to mitigate penalties. While on its face it 

seems logical to accept the agency’s decision regarding discipline or termination, The 

American Legion is reminded of the Linda Weiss decision which the presiding judge 

stated, in part: 

‘‘In conclusion, I find that appellant has rebutted the presumption that 

the penalty was reasonable. If 38 U.S.C. § 713 did not prohibit it’; I would 

mitigate the penalty. However, because that is not allowed, the only option 

is to reverse the action outright. 5 CFR §§ 1210.18(a), (d). Therefore, 

agency’s decision to remove the appellant from the Federal service is 

reversed.’’ 16

The American Legion wants to ensure that Congress provides the VA with tools 

that are functional, enforceable, and allow the agency to act in a manner that promotes good order, discipline, and esprit de corps. Poorly crafted legislative language 

that fails legal and constitutional standards only serves to ruin morale and create 

a system of indecision and lack of surety. 

The American Legion applauds this bipartisan effort to provide Secretary Shulkin 

additional tools to increase accountability and address poor performance within the 

Department of Veterans Affairs. Despite multiple verified cases of gross misconduct 

69 

17 American Legion Resolution No. 3 (2016): Department of Veterans Affairs Accountability 18 American Legion Resolution No. 364 (2016): Department of Veterans Affairs to Develop Outreach and Peer to Peer Programs for Rehabilitation 

for multiple employees, the Secretary of the VA had little authority to hold employees accountable, and many veterans subsequently lost faith in the system. This is 

why The American Legion vociferously urged Congress to provide the Secretary 

much-needed authorities so that he may take action to improve morale, incentivize 

desired behavior, deter misconduct, and eliminate corrupt or uncaring employees. 

American Legion Resolution No. 3: Department of Veterans Affairs Accountability, 

supports any legislation that provides the Secretary of Veterans Affairs the authority to remove any individually from the VA that the Secretary determines warrants 

such authority or to transfer or demote an individual to a General Schedule position 

without any increased monetary benefit.17

The American Legion supports the Draft Bill titled: Department of Veterans Affairs Accountability and Whistleblower Protection Act. 

DRAFT BILL: SERVING OUR RURAL VETERANS ACT

To authorize payment by the Department of Veterans Affairs for the costs associated 

with service by medical residents and interns at facilities operated by Indian 

tribes, tribal organizations, and the Indian Health Service, to require the Secretary of Veterans Affairs to carry out a pilot program to expand medical 

residencies and internships at such facilities, and for other purposes. 

The provisions of this bill fall outside the scope of established resolutions of The 

American Legion. As a large, grassroots organization, The American Legion takes 

positions on legislation based on resolutions passed by the membership in meetings 

of the National Executive Committee. With no resolutions addressing the provisions 

of the legislation, The American Legion is researching the material and working 

with our membership to determine the course of action which best serves veterans. 

The American Legion has no current position on this Draft Bill titled: 

Serving our Rural Veterans Act 

DRAFT BILL: VETERAN PARTNERS’ EFFORTS TO ENHANCE REINTEGRATION (PEER) ACT

A bill to require the Secretary of Veterans Affairs to carry out a program to establish 

peer specialists inpatient aligned care teams at medical centers of the Department of Veterans Affairs, and for other purposes. 

A peer support specialist is a person with significant life experience who works 

to assist individuals with chemical dependency, mental disorder, or domestic abuse 

and other life effecting issues. Due to a PEER’s life experiences, such persons have 

expertise that profession training cannot replicate. Tasks performed by peer support 

specialists may include: 

• Assisting their peers in articulating their goals for recovery, 

• Learning and practicing new life skills, 

• Helping monitor their progress, 

• Assisting them in their treatment, 

• Modeling effective coping techniques and self-help strategies based on the specialist’s own recovery experience, and 

• Supporting in obtaining effective services in and outside the VA. 

This draft bill would expand VA’s current use of peer specialists being utilized in 

primary care settings including mental health clinics. The PEER Act would require 

the Department of Veterans Affairs (VA) to establish a pilot program of peer specialists to work as members of VA’s patient-aligned care teams (PACT), for the purpose 

of promoting the integration of mental health services in a VA primary care setting. 

This bill would authorize the establishment of this pilot program in 25 VA sites, 

to include the VA’s five Polytrauma centers across the country. The bill would also 

require a series of reports, including a final report to recommend whether the program should be expanded beyond the pilot program sites. 

As affirmed in The American Legion’s Resolution No. 364: Department of Veterans 

Affairs to Develop Outreach and Peer to Peer Program for Rehabilitation, The American Legion urges the President of the United States and the U.S. Congress to call 

on the Secretary of Veterans Affairs to develop a national program to provide peer 

to peer rehabilitation services based on the recovery model tailored to meet the specialized needs of current generation combat-affected veterans and their families.18

The American Legion supports the Draft Bill titled: Veteran Partners’ Efforts to Enhance Reintegration (PEER) Act 

70 

CONCLUSION

The American Legion thanks this Committee for the opportunity to elucidate the 

position of the over 2.2 million veteran members of this organization. For additional 

information regarding this testimony, please contact the Deputy Director of Legislative Affairs, Mr. Derek Fronabarger, at The American Legion’s Legislative Division 

at (202) 861–2700 or dfronabarger@legion.org. 

Chairman ISAKSON. Thank you very much, Mr. Celli. Ms. 

Keleher? 

STATEMENT OF KAYDA KELEHER, ASSOCIATE DIRECTOR, NATIONAL LEGISLATIVE SERVICE, VETERANS OF FOREIGN 

WARS OF THE UNITED STATES 

Ms. KELEHER. Chairman Isakson, Ranking Member Tester, and 

Members of the Committee, it is my honor to represent nearly 1.7 

million members of the Veterans of Foreign Wars of the United 

States and our Auxiliary. 

In 2016, the VFW launched our In Their Words campaign, which 

prioritized the needs of women veterans. To do this, we knew we 

needed to hear directly from women veterans to get their feedback 

on what it is that they need and want. We set up our women’s committee and conducted a survey of 51 questions, with nearly 2,000 

female servicemembers and veterans who responded. 

Since the conclusion of this survey, the VFW has worked tirelessly to priority the need to improve gender-specific health care, 

recognition of women veterans, improved outreach to them, and to 

break down the unique barriers that they face for homelessness. 

This is why the VFW supports and applauds the work put into 

both the Deborah Sampson and Women Veterans Access to Quality 

Care Acts. Both of these pieces of legislation would greatly improve 

the quality of and access to care and benefits for women who use 

VA. 

Peer-to-peer support is something the VFW has long been supportive of and found immense value in. The Deborah Sampson Act 

would greatly expand these programs, providing women veterans 

with more peer and gender-based one-on-one assistance. Peer-topeer support has been proven greatly effective in assisting veterans 

within VA time and time again, and it provides low-cost access to 

basic needs to veterans. 

The VFW does suggest Congress amend the Deborah Sampson 

Act in Title IV, eliminating barriers to access, and recommends removing the option of having one part-time provider. One part-time 

provider has too much room to leave patients with limited access. 

It is also a common complaint we hear from our membership. The 

VFW believes all clinics must be properly employed, which includes 

maintaining at least one full-time primary care provider in every 

women’s clinic. 

The VFW also supports the Creating a Reliable Environment for 

Veterans’ Dependents Act, which we believe would be invaluable in 

assisting women veterans who may be single mothers to overcome 

homelessness. No veteran deserves to be sleeping on the streets at 

night, and their children should not be forced to sleep alongside 

them under bridges, without a home. This is why the VFW suggests amending the language saying that the recipient ‘‘may’’ reVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00074 Fmt 6633 Sfmt 6601 Z:\ACTIVE\051717.TXT PAULIN
71 

ceive per diem payments to the recipient ‘‘shall’’ receive per diem 

payments. 

The VFW also strongly supports the Military and Veteran Caregiver Services Improvement Act of 2017. This legislation would 

greatly enhance services provided to the caregivers of those severely disabled in the line of duty, regardless of which era they 

served in. These improvements are desperately needed and the 

VFW has long supported them. Severely wounded and ill veterans 

of all conflicts have made incredible sacrifices, and all their family 

members who care for them are equally deserving of our recognition and support. The caregivers from pre-9/11 conflicts, whether 

they be World War II, Vietnam, Korea, or Desert Storm, have suffered long enough. It is time Congress properly recognizes their 

sacrifice and supports them with everything that they have 

deserved. 

The VFW supports the Veteran Appeals Improvement and Modernization Act of 2017. The VA claims and appeals process has long 

been in need of reform and reconstruction. The current process has 

become a bureaucratic system impossible for the average veteran 

to understand, and with the time for decisionmaking sometimes 

taking up to 6 years. This legislation would provide veterans with 

three options of how their appeals could be reviewed, drastically 

shortening wait times. That is why Congress must pass this legislation to simplify, expedite, and modify veterans’ appeals. 

The VFW supports the Department of Veteran Affairs Accountability and Whistleblower Protection Act of 2017. This legislation 

would ensure VA has the authority to remove their bad actors from 

payroll in a timely manner, while still allowing these employees 

their due process rights. Instances where VAs trying to fire an employee but it takes 2 years, while the employee is still maintaining 

their salary, is unsatisfactory. It is also unsatisfactory when employees are afraid to speak up about wrongdoings for fear of 

retaliation. 

This legislation would provide a security net of protection allowing these employees to voice possible wrongdoings, without fearing 

any form of backlash from their superiors. Those employees who 

are afraid to speak up and uphold—those employees who are 

unafraid to speak up and uphold principles of VA should be cherished and not made afraid of what they need to do to do the right 

thing. 

Chairman Isakson, Ranking Member Tester, and Members of the 

Committee, this concludes my testimony. Thank you again for the 

opportunity to represent the Nation’s largest and oldest major combat veterans organization. I look forward to your questions. 

[The prepared statement of Ms. Keleher follows:] 

PREPARED STATEMENT OF KAYDA KELEHER, ASSOCIATE DIRECTOR OF NATIONAL

LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED STATES

CHAIRMAN ISAKSON, RANKING MEMBER TESTER AND MEMBERS OF THE COMMITTEE, 

on behalf of the men and women of the Veterans of Foreign Wars of the United 

States (VFW) and its Auxiliary, thank you for the opportunity to provide our remarks on pending legislation. 

72 

S. 23, BIOLOGICAL IMPLANT TRACKING AND VETERAN SAFETY ACT OF 2017

The VFW supports this legislation that would direct the Department of Veterans 

(VA) to implement a standard identification protocol for use in the tracking and procurement of biological implants. By implementing one standard for device identification and tracking medical devices, such as prosthetics, which is developed and approved by the Food and Drug Administration (FDA), VA will be better able to inventory, track expiration dates and flag devices nearing their expiration. This would 

also assist in ensuring women veterans are able to obtain gender-specific prosthetics 

in a timely manner. 

In the past, the VA Office of Inspector General (VAOIG) has consistently reported 

on shortcomings within VA in regard to their management of prosthetics. The most 

recent audit—Report No. 11–02254–102, published March 8, 2012—highlighted challenges the VFW still believes must be addressed. VAOIG suggested that VA better 

manage their prosthetic inventories to avoid surplus spending and lack of patient 

access to prosthetics due to supply shortages. This excessive spending and prosthetic 

supply shortages are due to the lack of VA systems integrating with the prosthetic 

inventory system, which causes dilemmas between the two inventory systems. 

S. 112, CREATING A RELIABLE ENVIRONMENT FOR VETERANS’ DEPENDENTS ACT

The VFW supports adding per diem reimbursement for those homeless veterans 

with dependents to the list of services available for veterans in need. The struggle 

for homeless veterans is enough of a burden as is, and providing some financial support for veterans with dependents while they seek help is something that the VFW 

sees as an important change. While the VFW supports this bill, we ask that some 

improvements be made. The language of the bill states that the recipient of the 

grant ‘‘may’’ receive per diem payments under this subsection. We would like to see 

this language changed to ‘‘shall.’’ This would ensure veterans in the greatest need 

will receive financial assistance. 

S. 324, STATE VETERANS HOME ADULT DAY HEALTH CARE IMPROVEMENT ACT OF 2017

The VFW supports this legislation, which would expand adult day health care 

benefits for veterans who are eligible for long-term inpatient care. Currently, veterans who are at least 70 percent service-connected are eligible to receive cost-free 

nursing home or domiciliary care at any of the more than 120 state veterans’ homes 

throughout the country. While nursing home care is a necessity for veterans who 

can no longer live in the comfort of their home, the VFW strongly believes veterans 

should remain in their homes as long as possible before turning to inpatient and 

long-term care options. This legislation would ensure veterans have the opportunity 

to receive adult day care so they can remain in their homes as long as possible. 

S. 543, PERFORMANCE ACCOUNTABILITY AND CONTRACTOR TRANSPARENCY ACT OF 2017

The VFW supports the intent of this bill, but we do not believe this legislation 

is needed. There are a few sections of this bill that seem redundant with laws or 

practices already in place. We understand the effort to place VA officials, and not 

contractors, as the first in line for accountability for underperforming projects, but 

that seems to be an administrative issue. As for the penalties and website posting, 

we believe those already exist, and adding legislation to those would further obscure 

an already complicated system. 

S. 591, MILITARY AND VETERAN CAREGIVER SERVICES IMPROVEMENT ACT OF 2017

The VFW strongly supports this legislation, which would greatly enhance the 

services provided to caregivers of servicemembers and veterans who were severely 

disabled in the line of duty. Family caregivers choose to put their lives and careers 

on hold, often accepting great emotional and financial burdens, and the VFW believes that our Nation owes them the support they need and deserve. This bill would 

accomplish this in a number of ways, including extending benefits to caregivers of 

veterans with service-connected illnesses, offsetting the costs of their child care, providing them with financial advice and legal counseling, expanding their respite care 

options, and requiring VA to report on the progress of the program. 

This legislation would extend caregiver eligibility to severely injured and ill veterans of all eras. This is a desperately needed change that the VFW has long supported. Severely wounded and ill veterans of all conflicts have made incredible sacrifices, and all family members who care for them are equally deserving of our recognition and support. The fact that caregivers of previous era veterans are currently 

excluded from the full complement of program benefits implies that their service 

and sacrifices are not as significant, and we believe this is wrong. We support the 

73 

five year phase-in plan, which would incrementally grant program eligibility based 

on the severity of the veteran’s conditions, as we believe this would give VA the opportunity to responsibly expand and improve the program without compromising 

services to current beneficiaries. 

The VFW hears from our member often about eligibility for VA’s Program of Comprehensive Assistance for Family Caregivers and their message is clear: they strongly support expanding full caregiver benefits to veterans of all eras. As an intergenerational Veterans Service Organization that traces its roots to the Spanish American 

War, this is not surprising. Our members are combat veterans from World War II, 

the wars in Korea and Vietnam, the Gulf War, and various other short conflicts, 

in addition to current era veterans. They rightly see no justifiable reason to exclude 

otherwise deserving veterans from program eligibility simply based on the era in 

which they served. 

This legislation would require an annual evaluation report to determine how 

many caregivers are receiving benefits, assess training that VA provides caregiver 

coordinators, and review outreach activities. The VFW believes Congress should also 

track the number of times and reasons why VA revokes the benefit from veterans. 

The VFW has heard from too many veterans that they were kicked out of the program despite still needing the assistance of a caregiver for daily living activities. 

The VFW commends VA for recently extending the temporary suspension of revocations until it is able to properly address the inconsistent implementation of the 

program throughout the VA health care system. VA must make several improvements to the existing program including the appeals process when veterans disagree 

with the eligibility determination of their care teams, ensuring eligibility determinations are consistent throughout the system, and enhancing the off-ramp process to 

ensure veterans and their caregivers are given enough time and support to properly 

adjust before graduating from the program. 

The VFW strongly believes VA must review previous revocations for accuracy and 

improve the program, specifically instances of veterans whose eligibility was revoked despite being in the highest tier. However, the VFW does not believe that it 

is necessary to delay expansion of the program. The caregivers of pre-9/11 veterans 

have suffered long enough. It is time Congress properly recognizes their sacrifice 

and provides them the support they deserve. 

S. 609, CHIROPRACTIC CARE AVAILABLE TO ALL VETERANS ACT OF 2017

The VFW supports this legislation which would provide chiropractic care and 

services to veterans receiving health care at VA. According to VA, musculoskeletal 

and connective tissue diseases are commonly diagnosed medical issues for Post-9/ 

11 veterans, with nearly 200,000 of these veterans pursuing care at VA for these 

conditions since 2002. Our nation is also facing an opioid epidemic, with many 

Americans and veterans struggling with addiction to painkillers. This is why the 

VFW believes it is absolutely crucial that VA be able to provide access to chiropractic care to veterans in need. Studies have long proven chiropractic adjustments 

can reduce chronic pain, joint swelling and inflammation. Some studies even show 

chiropractic care can help reduce headaches and migraines. The VFW urges Congress to pass this legislation which would help improve the quality of care veterans 

receive at VA, as well as provide another avenue to combat opioid addiction for patients with chronic pain. 

S. 681, DEBORAH SAMPSON ACT

The VFW supports this legislation to improve VA benefits and services for women 

veterans. As the population of women veterans continues to be the fastest growing 

within the veteran community, the VFW has adamantly worked alongside Congress 

and VA to improve access, care and benefits to women veterans. In 2016, the VFW 

launched our In Their Words campaign which focused on the needs of women veterans. To evaluate whether VA is meeting the needs and expectations of women veterans, we conducted an extensive survey of nearly 2,000 women veterans. From that 

data, the VFW broke down the areas in most need of attention into four categories: 

health care, recognition, outreach and homelessness. The Deborah Sampson Act addresses all four of these critical areas, which is why we urge Congress to pass this 

legislation. 

Title I—Peer-to-Peer Assistance 

Peer-to-peer support has proven time and again to be invaluable to veterans and 

VA. This is why the VFW advocates so strongly for the constant expansion of peerto-peer support programs. This legislation would greatly expand these programs for 

women veterans, providing them more peer and gender-based one-on-one assistance 

74 

from others to whom they can relate and connect. This is extremely crucial in instances where a female may suffer from mental health conditions, but especially in 

instances where a female veteran is on the verge of homelessness. In our survey, 

72 women reported being homeless or at risk of becoming homeless. Of those 

women, 38 percent reported having children. These women face unique barriers to 

overcoming homelessness, and frequently commented on the lack of people who actually understand those barriers. By providing peer-to-peer support for women with 

others who have gone through the same hardships, VA would provide a level of understanding and trust they desperately need. 

Title II—Legal and Supportive Services 

Since President Obama and then Secretary Shinseki launched the campaign to 

end veteran homelessness, the VFW has been pleased to see the homeless veteran 

population nearly cut in half, as well as more attention brought to this important 

issue. That is not to say there are not more challenges ahead on the road to eradicating veteran homelessness. The VFW has long advocated for improvements to 

voucher programs for women veterans, as well as access to gender-specific, safe 

housing for those with families. This legislation would improve access to legal and 

supportive services, which is crucial in instances such as preventing homelessness, 

keeping families together and settling issues that may complicate veterans’ abilities 

to find meaningful employment. 

Title III—Newborn Care 

Typically, in private sector health care, a new mother has a month to enroll her 

newborn child into an insurance program. Currently, VA only covers newborn care 

for seven days. This week of coverage is not enough to provide coverage if anything 

goes wrong—even in the not uncommon instance of false positive testing—nor is it 

enough to ease the new mother of unnecessary stress. Congress must expand coverage for newborn children. 

Title IV—Eliminating Barriers to Access 

Barriers to health care have not been shunned from the spotlight in regard to access at VA. This is all the more reason why VA must continue being more proactive 

than reactive when it comes to access to gender-specific care for women veterans. 

As the women veteran population continues to grow, VA must ensure it provides 

care and services tailored to their unique health care needs. Women deserve access 

to the best treatment and care this Nation has to offer. That is why it is crucial 

VA outfit existing facilities with basic necessities, such as curtains for privacy, in 

women’s clinics. These clinics also need to maintain at least one primary care provider with expertise in women’s health who is able to train others. However, the 

VFW recommends removing the option of one part-time provider. A part-time provider would limit access to care for woman veterans and decrease the provider’s 

ability to maintain gender-specific expertise. 

Title V—Data Collection and Reporting 

VA has an extensive history of not gathering data which would allow the statistical analysis necessary to better veterans’ lives. This is why the VFW strongly 

urges Congress to pass this legislation which would collect and analyze data by sex 

and minority status. 

S. 764, VETERANS EDUCATION PRIORITY ENROLLMENT ACT

The VFW supports adding legislation that allows veterans using GI Bill benefits 

to enroll in classes before the standard enrollment date. Veterans have finite time 

to use their education benefits, and being locked out of required classes due to capacity issues is a real problem for student veterans. Many veterans take longer than 

the 36 months of GI Bill eligibility to complete their education due to a combination 

of factors such as the inability to enroll in the necessary classes because of capacity 

issues; limited offering of classes throughout the academic year; and restrictions on 

registration due to academic progress or transferal from another school. Therefore, 

the creation and implementation of a priority enrollment system—similar to other 

special college populations such as college athletes—as well as revised class enrollment and transfer policies, are necessary to ensure that veterans are able to complete their educational goals within the 36 months of benefits allotted by the GI Bill. 

Priority enrollment for student veterans was an issue championed by a recent 

VFW-Student Veterans of America fellow Robert Davis. In his proposal, Veterans 

Priority Enrollment, Davis highlighted how this no-cost solution will enable veterans to complete their degrees in a more expedient fashion, so as not to waste any 

unnecessary education benefits while doing so. Veterans using the GI Bill have 

75 

shown to be a great return on investment for this country, and we should do everything we can to enable their progress toward completion of their degrees. 

S. 784, VETERANS COST-OF-LIVING ADJUSTMENT ACT OF 2017

The VFW supports this legislation which would increase VA compensation for veterans and survivors, and adjust other benefits by providing a cost-of-living adjustment (COLA). The VFW is pleased to support any bill increasing COLA for our veterans, however, we would prefer to make COLA increases permanent and automatic. 

Disabled veterans, along with their surviving spouses and children, depend on 

their disability compensation, plus dependency and indemnity compensation, to 

bridge the gap of lost earnings caused by the veteran’s disability. Each year veterans wait anxiously to find out if they will receive a COLA. There is no automatic 

trigger that increases these forms of compensation for veterans and their dependents. Annually, veterans wait for a separate act of Congress to provide the same 

adjustment that is automatically granted to Social Security beneficiaries. 

S. 804, WOMEN VETERANS ACCESS TO QUALITY CARE ACT OF 2017

The VFW supports this legislation, which would improve health care for women 

veterans using VA. As the fastest growing demographic within the veteran population, women veterans have long deserved access to high quality, equitable genderspecific health care. This legislation would prioritize integrated standards to determine funding to ensure VA facilities meet standard requirements of gender-specific 

care in areas such as gynecology. 

When the VFW conducted its survey of nearly 2,000 female veterans in 2016, one 

of the most overwhelming open ended responses on how to improve women’s health 

care in VA was by increasing the number of gynecologists. While VA offers gynecology, women veterans prefer seeing a gynecologist rather than their primary care 

provider for this gender-specific necessity. 

This legislation would also greatly improve the quality of care available to women 

veterans by increasing the number of providers who specialize in gynecology, as well 

as thoroughly examining other areas of gender-specific need, such as women veteran 

wait times, health outcomes based on gender, and availability of gender-specific 

equipment. 

S. 899, DEPARTMENT OF VETERANS AFFAIRS VETERAN TRANSITION IMPROVEMENT ACT

The VFW supports the Veteran Transition Improvement Act, which would authorize service-connected disabled veterans to access care for their service-connected injury during their first year of employment with VA. Disabled veterans seeking Federal employment are rightly given special preference during the hiring process. 

However, newly hired VA employees begin with a paid sick leave balance of zero. 

This means that within their first year of employment, newly hired disabled veterans must choose between taking unpaid leave to seek medical care for their service-connected conditions, or forego receiving care altogether. At this time, disabled 

veterans who work for VA are the only Federal employees forced to make this 

choice, as recently enacted laws have permitted newly hired disabled veterans in 

other agencies the opportunity to receive care for injuries sustained during their 

military service. This legislation would increase the chances for a successful transition into the civilian workforce and eliminate a barrier to health care access. 

S. 1024, VETERANS APPEALS IMPROVEMENT AND MODERNIZATION ACT OF 2017

The VFW supports this legislation to reform and modernize the VA claims and 

appeals process to better serve the needs of the veterans’ community. Over the 

years, the VA claims and appeals process has morphed into a bureaucratic leviathan 

the average veteran cannot possibly understand. Moreover, for veterans who disagree with their assigned rating decision, they currently have no way to determine 

whether choosing to appeal is a reasonable course of action without seeking assistance from an accredited representative or legal counsel. Then, should veterans 

choose to appeal VA’s decision, exercising their due process rights can take up to 

five years. To the VFW, this does not seem like a veteran-centric, non-adversarial 

process. 

The goal of this legislation is to once again build a veteran-centric process that 

is easy to navigate and protects a veteran’s rights every step of the way. Last year, 

the VFW was one of more than a dozen veteran community stakeholders that convened to discuss the way forward in modernizing the VA claims and appeals processes. At the time, the acknowledgement was that the system was cumbersome and 

76 

no longer satisfied the needs of veterans who rightfully expect timely and accurate 

rating decisions on the benefits they earned. The resultant product of these discussions is the framework included in this draft legislation, and the VFW is proud to 

support it. 

Through this legislation, Congress will modify the options for veterans to pursue 

accurate rating decisions prior to filing a formal appeal, while simultaneously preserving their earliest possible effective date. This legislation also directs VA to improve its award notifications for veterans, outlining seven specific pieces of information each decision notice to a veteran shall include. Improved notification letters 

have been a top priority of the VFW and our partner organizations for years, and 

we are happy to see the Committee pursue this aggressively. To the VFW, inadequate notification letters have been a fundamental failure in the VA claims process 

for decades. In their current format, veterans have no reasonable way to understand 

how VA arrived at their benefit decision, meaning veterans have no way to reasonably conclude whether or not the decision is accurate and whether or not they need 

to pursue another avenue of recourse. 

As accredited representatives, one of our top responsibilities is explaining rating 

decisions to veterans and deciphering which evidence was used to render a decision 

and how VA evaluated that evidence. Improved decision notices will put some of this 

power back into the veteran’s hands, ensuring they are well informed of their rating 

and how VA arrived at its conclusion. This sets the veteran up for success in navigating the process and has the potential to cut down on appeals where the veteran 

simply may have misunderstood their rating decision. 

Coupled with improved notifications, this legislation codifies three specific paths 

through which veterans can arrive at a fair and understandable rating decision, 

while preserving the earliest possible effective date. Two of these paths—higher 

level review and supplemental claims readjudication—offer recourse for the veteran 

without filing a formal appeal, offering the veteran and VA the opportunity to rectify discrepancies before the veteran formalizes an appeal. 

Currently, when a veteran receives a rating decision, they must choose whether 

or not to formally file a notice of disagreement, kicking off a potential years-long 

process to arrive at a new decision, sometimes when only small matters of evidence 

or interpretation of the law need to be addressed. By redesigning appeal options, 

the process remains non-adversarial as long as possible, and also encourages VA to 

produce quality rating decisions at the local level, instead of punting more complicated cases for the Board of Veterans Appeals (BVA) to review. 

Critics have called these two new paths at the regional office an ‘‘erosion’’ of veterans’ due process rights. This is an inaccurate assessment that fails to acknowledge 

that the VA claims process is supposed to be veteran friendly and easily navigable 

by any veteran who seeks to access his or her earned benefits. Moreover, the new 

framework actually expands veterans’ due process rights by offering additional recourse at the local level, preserving routes to the BVA and the courts, and preserving a veteran’s right to seek legal counsel after an initial rating decision. 

Though the VFW always encourages veterans to seek professional assistance from 

an accredited representative whenever possible, a perfect system would be one 

where veterans do not need professional assistance, and certainly do not need to retain a lawyer, simply to claim an earned benefit. The VFW believes this proposed 

framework, if properly implemented, moves veterans closer to such a system. 

The most critical new protection for veterans is the lane in which veterans can 

continually submit new and relevant evidence to VA within one year of a rating decision and receive a new rating decision on the evidence of record, preserving their 

original effective date. Coupled with improved notification letters, this option could 

be a game changer for veterans, resulting in more favorable decisions at the local 

level. 

First, lowering the evidentiary threshold to receive a new rating decision to only 

new and relevant is an improvement for veterans. The old standard was new and 

material. While the VFW would prefer that VA only be required to consider new 

evidence, we support this change which would ease the evidentiary burden for veteran claimants, potentially resulting in more favorable decisions. 

Key to the success of this lane is communication among VA, the veteran, and the 

veteran’s advocate where applicable. If a veteran receives a clear and understandable rating decision, but notices that certain evidence was not contained in the 

record, they now have an opportunity to formally submit this and receive a new, 

timely rating decision, instead of pursuing years of a formal, contentious appeal. 

Moreover, accredited veterans’ advocates now have a new tool to help resolve claims 

at the earliest possible time, ensuring that their clients receive every benefit they 

have earned. 

77 

To the VFW, this is the best possible outcome. According to VA’s own data, more 

veterans are seeking our assistance every year to access their earned benefits. Last 

year, the VFW took on four new claimants for every claimant we lost. While we like 

to tout that this is a testament to the professionalism of our staff, we also know 

that this kind of growth means that we need to help VA get it right the first time. 

Prolonging a veteran’s claim is bad all around. It puts unnecessary stress on the 

veteran and it makes VA look like an irresponsible steward of benefits. At a time 

when more veterans need access to benefits, the VFW supports offering more nonadversarial recourse at the local level to arrive at quality rating decisions. This is 

what our veteran clients expect, and this is why we support this new framework. 

The VFW also supports the maintenance of two separate dockets at BVA to adjudicate new appeals, though we have persistent concerns about the timeliness of decisions in each docket and the potential disincentive for veterans to pursue an appeal 

with a hearing. That being said, the VFW supports docket flexibility so that BVA 

can properly manage its workload and provide veterans with timely decisions. However, in testimony earlier this year, VFW Commander-in-Chief Brian Duffy called 

for the simultaneous maintenance of five separate dockets at BVA to best reflect the 

legacy workload as well as the new system workload, including one docket for appeals with no new evidence and no hearing; one for appeals with new evidence but 

no hearing; and one for appeals with both new evidence and a hearing. 

When the Committee first started discussing the concept of appeals reform for the 

115th Congress, the VFW and several of our partner Veterans Service Organizations saw this as an opportunity to once again discuss potential conflicts that arose 

in the initial discussions in 2016. One significant conflict was the ability of veterans 

with appeals languishing in the legacy system to be able to opt into the new framework. In this legislation, we are pleased to see that the Committee addressed these 

concerns by articulating formal ‘‘off ramps’’ for legacy appeals to opt into the new 

system at critical decision points. 

To the VFW, this is a benefit to affected veterans and to VA. First, veterans 

whose appeals have been mired in the old appeals system will have several opportunities to take advantage of new processes, such as submitting new and relevant evidence when their claims are remanded back to the Regional Office. This will allow 

veterans an opportunity to avoid another lengthy appeal process and allow VA to 

address the issues at the Regional Office in a timely manner. For VA, the VFW believes this will be a critical tool in helping to adjudicate the backlog of legacy appeals, resulting in more timely, favorable decisions for veterans. 

The VFW understands that VA had some concerns about these off ramps and the 

strain on resources at the local level. The VFW does not share these concerns as 

VA has the responsibility to adjudicate its workload regardless of where the claim 

happens to be in the process. Moreover, this reinforces the VFW’s calls on Congress 

to properly resource the Veterans Benefits Administration (VBA) and BVA to manage their workload. Without proper resources, any claims and appeals framework 

will fall prey to dangerous backlogs, resulting in unacceptable benefit delays for 

veterans. 

Since the first discussions on appeals reform with VA, the VFW has been very 

clear that any changes to the system must be coupled with aggressive initiatives 

to adjudicate legacy appeals in a timely manner through both legislative authority 

and proper resourcing. The VFW had asked for off ramps to allow veterans with legacy appeals to opt into the new process, and we thank the Committee for including 

these off ramps in this legislation. 

The VFW must stress the importance of properly resourcing BVA and VBA to adjudicate the legacy appeals backlog and the potential influx of supplemental claims 

and higher level review requests at the VA Regional Office. The VFW’s former National Veterans Service Director, Jerry Manar, used to say that VA liked to play 

Whack-a-Mole with its pending workload. When initial claims were backlogged, they 

concentrated resources on initial claims. This has since set off a chain reaction that 

has resulted in a backlog of appeals and other claim actions at the Regional Office 

level. Every time there is a crisis, VA has the habit of reallocating its resources to 

address the latest crisis. This only leads to other crises. VA must be properly 

resourced to manage its workload if we expect this new framework to succeed. 

The VFW was also happy to see that the Committee is asking for extensive reporting from VA on legacy appeals. The VFW supports many of these data points, 

and has had similar questions about the appeals process over the years, particularly 

the disaggregated time that VA waits for a claimant to take action and the time 

a claimant waits for VA to take action. We believe that this report will help to better understand the pitfalls that led to the appeals backlog and help avoid them in 

the new framework. 

78 

A modernized appeals system must be responsive to future needs of veterans. Veterans benefits date from the beginning of the United States, and our citizens and 

government have stepped up to care for veterans as the nature of war and society 

has changed. Judicial review of veterans’ benefits decisions has been in place for almost thirty years, and a decision this past week by the Federal Circuit in Monk v. 

Shulkin recognized veterans have a right to aggregate their appeals into class actions. While this decision does not directly affect the modernized appeals framework, 

it will also help to eliminate the ‘‘hamster wheel’’ appeals process, and will affect 

regulations handling new procedural directives from the courts. Congress must 

maintain close oversight over the timely handling of appeals for veterans who have 

been waiting the longest. 

At the same time, the modernized appeals system also needs the oversight of Congress to continually improve the process. We believe the changes proposed in the 

legislation being considered today would go a long way in forming a more veterancentric process. But appeals do not exist in a vacuum, and the feedback we receive 

must drive improvements to the processes used by VA and stakeholders to obtain 

fair, accurate decisions at the earliest point possible, and improve the quality of life 

for veterans and their families. 

The VFW is encouraged by the legislation you are considering today and strongly 

supports efforts to reform the claims and appeals system to build a more veterancentric appeals process. For years, we have been stuck in the same place, afraid to 

take action out of fear we will make the wrong decision. The problem is that if we 

stay put, the situation will never improve. That is unacceptable for the veterans 

who deserve timely access to their earned benefits. The VFW believes it is time to 

improve this process. We encourage the Committee to include the VFW’s recommendations when marking up this legislation, and we look forward to continuing to 

work with the Committee to advance these critical reforms. 

S. 1094, DEPARTMENT OF VETERANS AFFAIRS ACCOUNTABILITY AND WHISTLEBLOWER

PROTECTION ACT OF 2017

The VFW believes that VA and Congress must ensure the Secretary of Veterans 

Affairs has authority to quickly hold employees accountable for wrongdoing which 

may endanger the lives of veterans. That is why we support this important legislation. However, we also believe it is as important to ensure VA can quickly fill vacancies within its workforce left open by removing bad actors within VA. 

This important bill includes strong accountability reform for VA employees who 

do not live up to the standards that veterans deserve. Three years after the patient 

wait time manipulation crisis at the Phoenix VA Health Care System put a national 

spotlight on employee accountability, the Secretary of Veterans Affairs still lacks 

the proper authority to swiftly terminate workers who do not deserve to work at 

VA. The Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 would improve the Secretary of Veteran Affairs’ authority to discipline employees who commit malfeasances. 

The VFW salutes Chairman Isakson, Ranking Member Tester, Senator Rubio and 

the House Committee on Veterans’ Affairs leadership for reaching a bipartisan deal 

on this important bill which would better protect whistleblowers and hold employees 

accountable for their conduct or performance. The need for legislation follows a Federal appellate court decision this past week that rendered unconstitutional the process used to fire the former director of the Phoenix VA Health Care System. 

The VFW believes whistleblower protection is an essential addition to the accountability legislation. A Federal survey shows that less than 50 percent of VA employees feel that arbitrary action, personal favoritism and coercion for partisan political 

purposes are not tolerated. More so, only 43 percent felt senior leaders maintain 

high standards of honesty and integrity; only 37 percent are satisfied with policies 

and practices of senior leaders; and only 36 percent feel senior leaders generate high 

levels of motivation and commitment in the workforce. These statistics are alarming 

and suggest that for a culture of accountability to be established, change must start 

from the top, not the bottom. 

The VFW also believes VA needs improved authorities to hire high quality employees. In our report, Hurry Up and Wait, we highlight deficiencies in VA human 

resources practices, outlining several recommendations to improve the hiring process and customer service training. We feel that VA’s hiring process moves too slowly. Northern Virginia Technology Council suggested that for VA to be successful, it 

should aggressively redesign its human resources processes by prioritizing efforts to 

recruit, train, and retain clerical and support staff. In today’s economy, hiring the 

best people is extremely critical. In many cases, it is more effective to coach a curVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00082 Fmt 6633 Sfmt 6621 Z:\ACTIVE\051717.TXT PAULIN
79 

rent employee, even a poor performing one, than it is to find, interview, engage and 

train new employees. 

We fear that VA’s workforce productivity could decline due to staffing shortages 

and low employee morale if VA does not reform its hiring processes. The VFW looks 

forward to working with Congress to expedite passage of this legislation and find 

workable solutions to VA human resources’ issues to ensure VA can move quickly 

to fire employees who put veterans at risk, and at the same time move quickly to 

hire the best applicants to set VA on a path to restore trust in the system. 

DRAFT BILL, SERVING OUR RURAL VETERANS ACT (SULLIVAN, TESTER)

This legislation would allow for VA to make payments for the training of interns 

and residents at approved locations other than VA facilities and to establish a pilot 

program for additional training. The VFW supports this legislation. The use of Indian Health Service facilities and other approved Federal locations is a common 

sense answer for VA to use in solving their need to train medical professionals. 

Those who participate in the program would spend time at an approved facility as 

defined in the legislation. This could be an opportunity to help solve a known problem and allow VA to recruit capable and dedicated medical professionals to care for 

those who have borne the battle. 

DRAFT BILL, VETERAN PARTNERS’ EFFORTS TO ENHANCE REINTEGRATION

ACT (BLUMENTHAL)

The VFW supports this legislation, which would require VA to integrate peer support specialists into Primary Care Patient Align Care Teams (PACT). Peer support 

specialists provide a valuable service to veterans coping with mental health conditions. Such veterans often look for guidance from fellow veterans who have successfully completed treatment and have learned to cope with conditions they are experiencing. While current law requires each VA medical center to hire a minimum of 

two peer support specialists, it does not require VA medical facilities to incorporate 

them into the clinical settings. As a result, many peer support specialists are not 

used to their full potential. Many peer support specialists currently lead successful 

mental health care programs and services. The VFW supports efforts to expand such 

best practices. 

The VFW is glad to see this legislation would require each medical center that 

participates in the pilot program to consider the gender-specific needs of women veterans when carrying out the pilot program. In our survey of women veterans, survey 

participants identified the lack of gender-specific services as the greatest need in VA 

health care facilities. Survey participants also indicated their desire to select a provider of the same gender, specifically for veterans who have mental health conditions that may be a result of military sexual trauma. The VFW supports efforts to 

hire women peer support specialists to ensure women veterans have the opportunity 

to seek guidance from other women veterans who have learned to cope with mental 

health conditions related to military sexual trauma. 

Mr. Chairman, this concludes my testimony. I am prepared to answer any questions you or the Committee Members may have. 

Chairman ISAKSON. Thank you, Ms. Keleher. 

Mr. Atizado? 

STATEMENT OF ADRIAN ATIZADO, DEPUTY NATIONAL 

LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS 

Mr. ATIZADO. Chairman Isakson, Ranking Member Tester, Senator Murray, distinguished Members of the Committee, first I want 

to thank you for inviting DAV to testify on the bills under consideration for today’s hearing. As many of you know, DAV is a nonprofit 

organization, about 1.3 million strong, all wartime service-disabled 

veterans, and we have one purpose: to ensure veterans lead highquality lives with respect and dignity. 

Mr. Chairman, DAV operates the Nation’s largest claims and appeals assistance program, providing free representation to more 

than 1 million veterans and their families. DAV fully supports 

S. 1024, the Veterans Appeals Improvement and Modernization Act 

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of 2017, and we remain committed to reform the appeals and 

claims process. 

As my colleagues have mentioned, the new appeals framework 

proposed within this bill will protect the due process rights of veterans, while creating multiple options for them to receive their decisions in a more judicious manner. 

The critical core of the new framework would allow veterans to 

have multiple options to reconcile unfavorable claims decisions. It 

would introduce new evidence at both the Board and at BVA, and 

protect earliest effective dates without having to be locked into a 

current long and arduous formal appeals process at the board. Now 

claimants with legacy appeals would be able to enter the new system at various junctures, and for assurance that BVA and the 

board are prepared to make this major transition, the Secretary is 

required to submit a detailed transition and implementation plan, 

and, with consultation with stakeholders, certify that the new system is ready. 

We are also pleased to express our full support for the two bills 

before you today responding to the needs of women veterans, 

S. 681, the Deborah Sampson Act, and S. 804, the Women Veterans 

Access to Quality Care Act of 2017. Together, these bills would address longstanding concerns and barriers to care that have been 

discussed in our report, the 2014 report, ‘‘Women Veterans: A Long 

Journey Home,’’ as well as our national resolution number 129, 

which calls for enhanced services for women veterans. 

To name just a few of the important provisions in both of these 

bills, we believe the peer retreats and increased use of evidencebased peer specialists will help ease transition, isolation, and assist 

woman veterans with post-deployment readjustment issues. A more 

robust maternity care benefit for woman veterans would be offered 

by extending days of coverage for newborn care from 7 to 14 days. 

It would also cover transportation of newborns, if medically 

necessary. There is a provision authorizing $20 million to address VA’s facility and environmental deficiencies that would ensure women veterans’ safety, confidentiality, and privacy, as well as dignity, as patients in the VA health care system. Requiring VA facilities to have 

either a full- or part-time women’s health primary care provider 

and establish a woman veterans program ombudsman to help 

women navigate the very large system of the VA, and overcome 

any access to barriers to care. 

Mr. Chairman, DAV strongly supports S. 591, the Military and 

Veterans Caregiver Services Improvement Act of 2017. This measure will allow severely ill and injured veterans from all eras, who 

meet the requisite clinical eligibility criteria, to be permitted to 

participate in VA’s comprehensive program for caregiver assistance. To ensure the program’s integrity, this measure would phase 

in this expansion based on who needs the support the most, thus 

allowing VA to manage the new work load. The bill would also improve the comprehensive caregiver program by including child care 

and provide caregivers financial advice and legal counsel. 

DAV firmly believes it is simply unconscionable to deny comprehensive caregiver support services to caregivers of veterans severely injured in prior wars, and to deny same services to family 

81 

caregivers who clearly need help today—today, after decades of sacrifice. For each year caregivers programs keep a veteran at home, 

outside an institution, that can save the taxpayer anywhere from 

$8,300 to as much as $295,000. That is one veteran, 1 year. 

Not only is this bill good for taxpayers, family caregivers, and 

veterans, it is also the right thing to do. 

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

to answer any questions you or other Members of the Committee 

may have. Thank you. 

[The prepared statement of Mr. Atizado follows:] 

PREPARED STATEMENT OF ADRIAN M. ATIZADO, DEPUTY NATIONAL LEGISLATIVE

DIRECTOR, DISABLED AMERICAN VETERANS

CHAIRMAN ISAKSON, RANKING MEMBER TESTER, AND MEMBERS OF THE COMMITTEE: Thank you for inviting DAV (Disabled American Veterans) to present our 

views on the bills under consideration at today’s hearing. As you know, DAV is a 

non-profit veterans service organization comprised of nearly 1.3 million wartime 

service-disabled veterans. DAV is dedicated to a single purpose: empowering veterans to lead high-quality lives with respect and dignity. 

S. 23, BIOLOGICAL IMPLANT TRACKING AND VETERAN SAFETY ACT OF 2017

This bill would require the Department of Veterans Affairs (VA) to establish a biological implant inventory identification and management system with the same features and requirements of an existing system in use by the Food and Drug Administration to regulate origin, movement, surgical implantation, and recall (if necessary) 

of any such biological material. 

The term biological implant would be defined as any ‘‘animal or human cell, tissue, or cellular or tissue-based product,’’ and would tie that definition to the existing 

regulatory definition under the Federal Food, Drug, and Cosmetic Act. 

The bill would set a number of milestone and deadline dates for implementation, 

and would require VA to submit a series of reports to document its progress in implementation of this system. Procurement of biological implants would be restricted 

to vendors who meet certain conditions laid out in the bill, and would sanction any 

VA procurement employee involved in the procurement of biological implants who 

acted with intent to avoid, or with reckless disregard of the requirements of the bill. 

A January 2015 report by the Government Accountability Office discussed weaknesses in procedures and compliance of those procedures on the purchase and tracking of surgical implants at VA facilities. Since the report was issued, we understand 

VA’s ability to identify veterans who received an implant that is being recalled by 

the manufacturer or the Food and Drug Administration has been sufficiently 

strengthened, but that the compliance and requirements for purchasing surgical implants remains a concern. 

VA medical centers (VAMC) or the Veterans Health Administration’s (VHA) regional network contracting offices (NCO) can purchase, from the open market, a specific surgical implant requested by a clinician with appropriate clinical justification, 

rather than purchasing a similar item through a VA-negotiated competitive 

contract. 

However, not recording the serial number or lot number for a surgical implant 

makes it difficult to systematically determine which veteran received an implant 

subject to a subsequent manufacturer or Food and Drug Administration recall. VHA 

policy stipulates that all open-market purchases of non-biological implants require 

a waiver approved by the VAMC Chief of Staff when a comparable item would have 

been available through a VA-negotiated national committed-use contract. 

DAV has received no resolution from our membership that deals with the specific 

topic of surgical implants. However, DAV’s Resolution No. 244 calls for VA to provide a comprehensive health care service for all enrolled veterans. Better control of 

the origins, movement, surgical implantation and recall, if necessary, of implantable 

biological material would be in keeping with the intent of our resolution. Therefore, 

DAV supports the intent of this bill. 

As a technical matter, we recommend the bill language be amended to add a new 

section ‘‘§ 7330C,’’ including subsequent references to this new section rather than 

the currently referenced ‘‘§ 7330B,’’ which was has already been added by Public 

Law 114–315, title VI, § 612(a) on December 16, 2016. 

82 

S. 112, TO AMEND TITLE 38, UNITED STATES CODE TO AUTHORIZE PER DIEM PAYMENTS

UNDER COMPREHENSIVE SERVICE PROGRAM FOR HOMELESS VETERANS TO FURNISH

CARE TO DEPENDENTS OF HOMELESS VETERANS

Many community housing and supportive service programs available for homeless 

veterans do not have appropriate and safe accommodations to serve single-parent 

families. According to the National Coalition for Homeless Veterans, many organizations with Grant Per-Diem (GPD) programs do not have sufficient resources to provide housing for the children of veterans, or have major restrictions on the services 

they can provide, including age limits and the number of children per veteran they 

can accept. If enacted, this bill would authorize per diem payments under comprehensive service programs for homeless veterans to provide services and housing 

to dependents of homeless veterans funded by the VA GPD program. 

According to the United States Housing and Urban Development Annual Homeless Assessment Report (AHAR) in 2016, about 9 percent (39,471) adults are homeless veterans and 3 percent (1,131) of these veterans are homeless and part of a 

family. Several factors related to military service can contribute to an increased risk 

of being homeless, such as having a mental health diagnosis and combat or wartime 

service. For women veterans these factors are increased. Over 300,000 women servicemembers served in Iraq or Afghanistan—some with multiple tours that exposed 

them to combat and other hazardous situations during deployment. Research finds 

that women veterans are more likely to have experienced sexual trauma than 

women in the general population, and are more likely than male veterans to be single parents. 

According to the Department of Defense (DOD), more than 30,000, of the women 

who served in the wars of Iraq and Afghanistan, were single parents and sole providers of dependent children. In its 2014 Sourcebook, VA reported about 46 percent 

of its women patients who served in Operations Enduring and Iraqi Freedom and 

Operation New Dawn had a mental health or substance use disorder diagnosis. 

Overall, it is estimated that women veterans are between two and four times as 

likely to be homeless as their non-veteran counterparts (according to a Congressional Research Service report dated November 6, 2015). 

DAV is pleased to support S. 112. This measure is consistent with DAV Resolution No. 139, which calls for support of sustained and sufficient funding to improve 

services for homeless veterans, including homeless veterans with children. 

S. 324, STATE VETERANS HOME ADULT DAY HEALTH CARE IMPROVEMENT ACT OF 2017

If enacted, this bill would authorize the Secretary to enter into new agreements 

with state veterans homes who provide medical supervision model adult day health 

care (ADHC) for veterans who are eligible for, but do not receive, skilled nursing 

home care under section 1745(a) of title 38, United States Code. Eligible veterans 

are those who require such care due to a service-connected disability, or who have 

a VA disability rating of 70 percent or greater and are in need of such care. Under 

this new authority, the payment to a state home for medical supervision model 

ADHC would be at the rate of 65 percent of the amount payable to the state home 

if the veteran were an inpatient for skilled nursing care, and payment by VA would 

be considered payment in full to the state home. 

Viewed as a more cost-effective option than institutional services, adult day services today provided in elderly and adult day centers include day care, day health, 

and respite for family caregivers, which allows patients requiring long-term services 

and support to remain in their homes near family and friends, and delays institutionalization in nursing homes. 

Adult day services have been divided into three models of care: social, medical, 

or combined. Social models tend to focus on socialization and prevention services, 

while medical models include skilled assessment, treatment, and rehabilitation 

goals, and combined models cover all areas. The distinction among these models has 

become increasingly unclear as these models have evolved into a dynamic, comprehensive model of care. Additionally, access to these centers is a challenge and 

transportation costs of patients must be considered. 

The state veterans home ADHC medical model program is designed not just to 

promote socialization, stimulation, and maximize independence while enhancing 

quality of life, but also to ensure veterans have access to comprehensive medical, 

nursing, and personal care services. In addition, veterans have access to a full array 

of clinical and rehabilitative services during their day visits, equivalent to what is 

offered to full time nursing home residents. Currently, VA’s per diem rate for state 

home ADHC is financially inadequate for most states to operate a medical supervision model program, of which there are only three in the Nation at present. This 

legislation, which is based on the same concept as the existing ‘‘full cost of care’’ 

83 

skilled nursing care program for severely disabled veterans, would measurably support the creation of more such programs, and thereby provide more veterans, and 

their families, with options to avoid full-time institutionalization. 

As this Committee is aware, there are many factors that impact the sustainability 

of adult day centers, including state regulatory requirements, staffing requirements 

and wages within a service area. DAV is pleased to support S. 324 based on DAV 

Resolution No. 142. In calling for enhancing VA’s comprehensive program of longterm services and supports for service-connected disabled veterans irrespective of 

their disability ratings, this resolution also recognizes the need for VA to optimize 

its relationship with State Veterans Homes to ensure veterans in need of institutional and alternative forms of long-term services and supports may avail themselves of state home facilities to consider all options for their provision. 

In addition, DAV understands that VA is close to finally releasing long overdue 

regulations that may create separate per diem rates for social and medical supervision model ADHC programs. Should such regulations be implemented, Congress 

should consider expanding this legislation to offer a ‘‘full cost of care’’ per diem rate 

for medical, social and combined models of Adult Day Services programs for severely 

disabled veterans. 

S. 543, THE PERFORMANCE ACCOUNTABILITY AND CONTRACTOR TRANSPARENCY

ACT OF 2017

This measure would require entities entering into service contracts with VA to include performance metrics on cost, schedule and fulfillment of contract requirements. It further requires that the Secretary to ensure that contracts set forth plans 

and milestones for delivering specified services. For the largest contracts it requires 

use of VA IT systems to ensure that contractors are fulfilling their obligations and 

maintaining at least a threshold level of quality in services rendered. DAV has no 

resolution on this legislation, but does not object to its intent. 

S. 591, THE MILITARY AND VETERAN CAREGIVERS SERVICES IMPROVEMENT ACT OF 2017

DAV strongly supports S. 591, the Military and Veteran Caregivers Services Improvement Act of 2017. This measure would allow severely ill and injured veteran 

from all eras who meet the requisite clinical eligibility criteria to be permitted to 

participate in VA’s Program of Comprehensive Assistance for Family Caregivers. To 

ensure the program’s integrity, the measure would phasing in veterans based on 

need, allowing VA to manage the new workload, while keeping service quality high. 

It would add a greater emphasis on mental health injuries and Traumatic Brain Injury (TBI), and remove certain restrictions in current law on those eligible to become caregivers. 

The bill would also make improvements to the VA caregiver program by including 

child care programs. Many family caregivers and veterans with young children are 

unable to receive VA supports and services they need without such a program. VA 

would also be authorized to provide caregivers financial advice and legal counseling. 

Improvements would be made in the DOD’s Special Compensation for Assistance 

with Activities of Daily Living (SCAADL) including aligning the eligibility with that 

of the VA caregivers program, as well as making caregivers of servicemembers receiving SCAADL eligible for a range of critical supportive services provided by VA. 

We support this bill based on DAV Resolution No. 131, which calls for legislation 

that to provide comprehensive caregiver support services, including but not limited 

to financial support, health and homemaker services, respite, education and training, and other necessary relief to caregivers of veterans from all eras of military 

service. 

VA’s comprehensive caregiver program had been operating for over three years 

when Congress held a hearing late last year on how best to expand eligibility for 

the services and benefits of this program to severely ill and injured veterans of all 

eras. During the hearing, concerns were expressed about the program, and assertions were made that improvements should be made to the existing program prior 

to its further expansion. 

We believe it is unconscionable to deny comprehensive caregiver supports and 

services to family caregivers who clearly need help today after decades of having 

cared for our Nation’s severely ill and injured veterans. Further, we believe that 

program improvements can be made while expanding eligibility to the Program of 

Comprehensive Assistance for Family Caregivers. 

This is why DAV is bringing to bear our over 90 years of experience assisting veterans, their caregiver, families and survivors as we are working with the veteran 

community, VA, and Congress to address concerns about the program’s operation, 

communication, transparency and fair treatment to ensure caregivers of severely 

84 

disabled veterans today and in the future will receive comprehensive supports and 

services they need. 

DAV recognizes the greatest obstacle to expanding this program is the cost for enacting legislation that would provide comprehensive caregiver support to all severely 

disabled veterans; nevertheless, we must acknowledge the cost of deploying servicemembers to war. Caregivers of veterans severely ill and injured before September 11, 2001, have borne that cost for years, with little recognition or services 

for their sacrifices. 

The years of sacrifices made by family caregivers has saved taxpayer money by 

reducing reliance on and delaying admission to nursing home facilities. The average 

cost per veteran per year in VA’s comprehensive program is $36,770 as compared 

to $332,756 VA pays per veteran per year in a VA nursing home; $88,571 in a community nursing home; and $45,085 in per diem payments in a State Veterans Home. 

Research has also shown well-supported caregivers of aging patients—such as 

World War II, Korea and Vietnam veterans—reduce overall health care costs by 

minimizing medical complications, lowering the number of hospital admissions and 

delaying admission into nursing homes. The business case to expand the comprehensive caregiver program has also been made in the report Hidden Heroes: 

America’s Military Caregivers, by the RAND Corporation. The loving assistance provided by family caregivers saves taxpayers billions of dollars each year in health 

care costs, and enables severely disabled veterans to live at home rather than in 

institutions. DAV believes it is time for Congress to act to improve the Program of 

Comprehensive Assistance for Family Caregivers extend these supports and services 

to caregivers of severely ill and injured veterans of all eras. 

S. 609, THE CHIROPRACTIC CARE AVAILABLE TO ALL VETERANS ACT OF 2017

DAV supports S. 609, the Chiropractic Care Available to All Veterans Act of 2017. 

This bill would require VA to offer chiropractic care at 75 VA medical centers by 

the end of 2018 and at every VA medical center by the end of 2020. DAV is pleased 

to support this measure, which is in line with DAV Resolution No. 244, calling for 

veterans’ access to a ‘‘full continuum of care, from preventive through hospice services, including alternative and complementary care such as yoga, massage, acupuncture, chiropractic and other nontraditional therapies.’’ 

Veterans with chronic pain and other conditions that do not respond well to medical interventions are seeking alternative treatment options that do not involve use 

of opioids or other traditional pharmaceutical solutions. One study estimates that 

up to 40 percent of veterans from Iraq and Afghanistan may use complementary or 

alternative care practices. In the past decade, as access to chiropractic in VA has 

grown, veterans’ use of chiropractic services has grown dramatically. VA currently 

offers chiropractic services as part of its medical benefits package and VA indicates 

that about 65 VA medical centers have chiropractors who are integrated into primary care, rehabilitation and other specialized care teams. 

We caution that while some VISN and local VAMC policies restrict access to 

chiropractic services, VA must ensure such policies do not subvert congressional intent. This measure would ensure incremental expansion of chiropractic services at 

all VA facilities over the next four years, so veterans who want access to this type 

of care can easily access it in a VA health care setting. 

S. 681, THE DEBORAH SAMPSON ACT

Women veterans are a rapidly increasing component of today’s military, yet represent only a small part of the total force. The same is true within the veterans’ 

population, which poses a significant challenge in delivering necessary health care, 

and providing supportive services to them. S. 681, the Deborah Sampson Act, would 

seek to address several issues women veterans face by resolving some of the barriers to care and services. Many women report feeling isolated as they transition 

from military service back into their roles within their family and the community. 

Combat exposure leading to Post Traumatic Stress Disorder (PTSD) and other mental health conditions may further complicate reintegration. 

DAV’s report, Women Veterans: The Long Journey Home recommended the establishment of peer support networks in VA, to ease transition, isolation, and assist 

with readjustment problems. The enactment of a three-year, peer-to-peer pilot program under Section 101 would help many women readjust back into their communities by providing them assistance from a peer who can relate to their military 

service and understand the unique issues women face during deployment and reintegration. In addition, a peer counselor would offer pragmatic assistance in identifying and coordinating the many benefits and services administered by VA and 

other government agencies available to best meet their individual needs. 

85 

This program would place emphasis on women who have been exposed to military 

sexual trauma, have PTSD or other mental health conditions or who are at risk of 

homelessness. Peer counseling is an evidence-based practice and VA is using peer 

specialists within many of its programs. In addition, Section 103 of S. 681 would expand the types of services and counseling available at peer retreats to include financial and occupational counseling, and information on conflict resolution and stress 

management to assist veterans with reintegration into family, employment and the 

community. DAV supports these provisions and the increased utilization of peer 

specialists. 

DAV’s report highlights the need for legal assistance and support for disability 

law, family law, employment law and criminal law. VA does not provide legal services and Section 201 would establish a partnership between VA and at least one 

nonprofit organization to address legal issues for which homeless women veterans 

have identified a high need. DAV supports this provision as a means of providing 

comprehensive support, not only to homeless women, but to all veterans at risk of 

homelessness due to legal issues affecting stable income, employment and housing. 

DAV’s report calls for enhanced housing support particularly for women with dependent children. Section 202 would earmark funding for grants to support homeless grant and per diem providers committed to providing assistance to women veterans and their families. Although DAV does not have a specific resolution addressing this issue we support the intent of this provision which would authorize VA to 

provide incentives to community grant and per diem providers to adapt and modify 

facilities and programs to support women veterans and their dependents. Women 

veterans frequently identify the need for child care and housing as a barrier to accessing needed care and services. Reports over the past few years indicate an increase in the number of homeless women veterans. Many of these women are single 

parents, and the sole providers for their dependent children. A recent DOD report 

noted that more than 30,000 single mothers deployed to Iraq and Afghanistan. 

Women of the most current deployments are more likely to become homeless than 

their male peers or women in the general population. Final Salute, an organization 

that provides women veterans with housing, indicated that over 70 percent of the 

women they have helped were single mothers. Homelessness creates a crisis, not 

just for the veteran, but for their dependent family members as well. 

While we are mindful that certain issues disproportionately affect women veterans, the top 10 needs identified in the 2015 CHALENG survey for all homeless 

veterans include the need for legal assistance in areas such as housing, child support, restoration of driver’s license and outstanding warrants and fines. For these 

reasons, we recommend these services be made available to both male and female 

veterans in need of them. 

Section 301 of the Act would authorize VA to extend its coverage of newborn care 

from a maximum of 7 to 14 days. Section 302 would authorize VA to cover transportation of a newborn of a woman veteran, for the purpose of obtaining medically necessary care at another health care facility. DAV supports both of these provisions 

as a means of ensuring women veterans’ access to medically necessary care. These 

additions would create a more robust VHA maternity care benefit for women veterans. A significant portion of the women returning from recent deployments are 

still in their childbearing years—VHA indicates 42 percent of its women patients 

are between 18–44 years of age. Improving the VA’s maternity care benefit better 

assures their continued access to comprehensive and coordinated care developed to 

meet veterans’ needs. Additionally, women of recent deployments—especially those 

using VA health care—are likely to be service-connected and many of their serviceconnected conditions, such as PTSD, are known to put them at risk of adverse pregnancy outcomes. VA must assure these women’s care continues to be carefully managed during this vulnerable time and eliminate the likelihood of women choosing 

another source of care if this basic need is not met satisfactorily. 

Title IV of the Deborah Sampson Act seeks to eliminate identified barriers to care 

for women veterans. DAV supports the provisions within this title. Between fiscal 

years 2003 and 2012, the number of women veterans using VA services grew from 

200,000 to more than 362,000—an 80 percent increase within less than a decade. 

By 2020, women will comprise 11 percent of the veteran population and VA projects 

continued growth in the portion of the veteran population comprised of women over 

the next decades. Given this significant and rapid growth, VHA has been challenged 

to adapt its programs to successfully meet women’s needs—particularly for genderspecific and sensitive care. 

Section 401 would authorize $20 million to retrofit VA facilities to address deficiencies in environment of care standards critical to ensuring the safety, privacy and 

dignity of women veteran patients. VA must modify its medical facilities to serve 

not only a higher volume of women, but also manage their specific health care 

86 

needs. Safety, privacy, and additional needs for gender-specific capital equipment 

should all be taken into consideration in modifying facilities and in any new infrastructure designs or capital acquisitions. 

In a December 2016 report, the Government Accountability Office found that 

about 27 percent of VA medical centers and health care systems lacked an onsite 

gynecologist and about 18 percent of VA facilities providing primary care lacked a 

women’s health primary care provider. Section 402 would seek to ensure that 

women veterans have access to competent women’s health providers by requiring 

that VA have a full or part-time women’s health primary care provider at every VA 

medical facility and specifies that this individual would be involved in training others to meet women’s needs. While not every VA medical center has the critical mass 

to necessitate having an onsite gynecologist, it is imperative that all facilities without a qualified gynecologist, establish a plan or have contracts in place to immediately address the needs of women presenting for this type of care. In addition, Section 404 would appropriate funds to continue VA’s Mini Residency program for primary care, and emergency care physicians to learn more about treating women veterans’ primary care needs. 

Section 403 would establish the role of a Women Veteran Program Ombudsman 

at each VA medical center. Because women’s health care needs cannot always be 

met at every VA facility, the role of the Women’s Veteran Program Manager 

(WVPM) is essential to ensuring sources of gender-specific and veteran-specific 

health care is available to female veterans. WVPMs are responsible for establishing, 

coordinating, and integrating health care services for women veterans within VA 

medical facilities. Often, WVPMs are overburdened by their wide range of duties 

and responsibilities which makes it difficult for them to advocate on behalf of the 

women they serve. This bill provides an Ombudsman to aid the WVPM in addressing women’s access to needed care and services. An ombudsman would also be able 

to assist with outreach and awareness which are often important in creating critical 

mass to initiate or maintain programs and services for women veterans. Because of 

the disparity in access for women veterans to VA benefits and services, DAV agrees 

that a Women Veteran Program Ombudsman would be beneficial. We urge the Committee to work with VA to ensure that this position is integrated within the Veterans Experience Office. 

Title V of the bill describes data collection and various required reports. Section 

501 would require VA to submit and publish a report that includes information on 

the sex and minority status of each participant of each program operated by the Department. DAV supports this provision, but believes that the focus of such a report 

should be narrowed to incorporate those programs and services of most relevance 

to the House and Senate Veterans’ Affairs Committees. DAV believes narrowing the 

scope of the report would yield higher quality data that was more meaningful to the 

Committees. In addition, the Committees could add programs required to report this 

data over time as necessary. Data on women veterans would allow VA to readily 

identify programs that underserve these gender and minority populations in relation 

to the proportion of the veteran population they represent. This information would 

be helpful in planning outreach or determining the ongoing need and demand for 

the program. 

Section 502 would require the Secretary to report upon the availability of prosthetics made for women, including at each VA medical center. DAV supports the intent of this measure and believes that VA should expand the survey of all veterans 

using prosthetics, oversampling women to ensure their adequate representation, to 

determine their satisfaction with the prosthetic device(s) they obtain from the VA 

and the process used to obtain them. Prosthetics are not made available through 

uniform channels in VA—some are manufactured in house and some are purchased 

from private manufacturers. 

There are special considerations in adapting prosthetics to meet women’s needs 

such as using appropriately sized hands and feet and having accommodations to address weight fluctuations to ensure fit and comfort throughout the month and during pregnancy. Rehabilitation facilities throughout VA are accredited by the Commission for Accreditation of Rehabilitation Facilities and are required to use measures of patient satisfaction to assure full accreditation. Yet it is unclear if veterans 

have been asked about their satisfaction with prosthetic limb devices purchased or 

manufactured by VA, or with any training they might be given to properly use and 

care for the device. This information might be valuable to VA in identifying whether 

veterans prefer prosthetics made in VA or by private manufacturers, and whether 

subgroups of veterans such as women or younger veterans are more or less satisfied 

with their prosthetics than other veterans. DAV urges the Committee to look beyond 

just availability and use patient satisfaction with timeliness, comfort, durability, 

87 

usability, and appearance as a finer gauge to determine the overall success of the 

VA prosthetics program. 

Section 503 would require VA to create a centralized internet database for all VA 

women’s resources, including staff contact information, available within the location 

in which the veteran is seeking services. 

Section 504 would provide a sense of the Congress encouraging VA to adopt a 

more inclusive motto. DAV does not have a resolution on this provision and takes 

no position on this section. 

DAV is pleased to support this comprehensive legislation, as it is consistent with 

many recommendations made in our report, Women Veterans: The Long Journey 

Home, and also with DAV Resolutions Nos. 129, calling for the support of enhanced 

medical services and benefits for women veterans, and 244, calling for support of 

the provision for comprehensive health care services to all enrolled veterans. 

S. 764, THE VETERANS EDUCATION PRIORITY ENROLLMENT ACT OF 2017

This measure, introduced by Senator Sherrod Rep Brown (D-OH) and cosponsored 

by Sen Thom Tillis (R-NC), would extend priority enrollment for college courses to 

veterans, servicemembers, and eligible dependents who are utilizing GI education 

benefits. Expanding priority enrollment allows those individuals covered to plan 

purposefully so that they can finish their degrees before their benefits expire. 

Many public colleges and universities currently extend priority registration to veterans when signing up for classes. This bill would expand this practice nationwide 

and would also include private schools with existing priority registration programs. 

The bill would not require colleges or universities to change their existing priority 

enrollment systems. 

S. 764 would amend educational programs authorized under title 38, United 

States Code. If enacted into law, the Secretary or a State approving agency may not 

approve a program of education offered by such institution unless the institution allows a covered individual to enroll in courses at the earliest possible time pursuant 

to each priority enrollment system, if the educational institutions have a priority enrollment system for some students. 

Covered individuals subject to S. 764 are those eligible for an educational assistance program provided for in chapter 30, 31, 32, 33, or 35 of title 38, United States 

Code, or chapter 1606 or 1607 of title 10, United States Code. 

Our nation needs to support our veterans as they transition from military to civilian life. Congress, as well as VA and its partner agencies, have an obligation to ensure veterans not only enroll in college, but that they succeed when they get there. 

Education benefits provided to ill and injured veterans, their dependents, and survivors are essential for a veteran’s successful transition. This legislation reveals a 

commitment to those who served by allowing covered individuals priority enrollment 

in courses. While DAV does not have a resolution from our membership on this particular issue, we would not oppose passage of this bill. 

S. 784, VETERANS’ COMPENSATION COST-OF-LIVING ADJUSTMENT ACT OF 2017

This bill would provide a cost-of-living adjustment (COLA) in the rates of disability compensation for veterans with service-connected disabilities and in the rates 

of additional compensation for dependents, clothing allowance, and in dependency 

and indemnity compensation for survivors of certain service-connected disabled veterans. DAV supports annual COLA adjustments to account for the effects of inflation and other rising costs that veterans must bear, and therefore supports S. 784. 

However, we remain concerned that the current COLA formula is not always sufficient to account for such increases. 

Congress customarily determines COLAs in parity with Social Security recipients, 

but it is important to note there have been years in which there were no COLA increases, or such as in 2017 when the COLA increase was quite small, only 0.3 percent. In many instances, veterans and their families rely on disability compensation 

as their sole source of income. In years when recipients receive no COLA increase, 

or when the increase is minuscule, it simultaneously erodes the value of their disability compensation benefits, and jeopardizes the ability of injured and ill veterans 

to maintain an adequate standard of living. 

DAV supports legislation that provides veterans with a COLA increase in accordance with DAV Resolution No. 013, and recommends discussion and consideration 

of other methodologies for determining annual COLA adjustments that might provide a more realistic cost-of-living allowance for our Nation’s disabled veterans, their 

dependents and survivors. Compensation rates must bring the standard of living in 

line with that which they would have enjoyed had they not suffered their serviceconnected disabilities. 

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S. 804, WOMEN VETERANS ACCESS TO QUALITY CARE ACT OF 2017

This measure would seek to improve VA health care facilities to better accommodate the needs of women veterans. Section 2 of the measure would direct the VA 

Secretary to establish standards to ensure that all medical facilities have the structural features necessary to sufficiently meet the gender-specific health care needs 

of veterans, including those for privacy, safety, and dignity. The bill would also require the Secretary to revise VA’s prioritization methodology for funding construction projects to include these projects. Finally, it would require the Secretary to report to the House and Senate Veterans’ Affairs Committees with a list of facilities 

that fail to meet such standards and the cost for renovations or repairs necessary 

to meet them. 

DAV’s report Women Veterans: The Long Journey Home points out that because 

of VA’s aging infrastructure, many facilities are lacking inpatient and residential 

care for women veterans with separate, secured sleeping accommodations. In addition, VA medical centers must to provide women veterans primary care with genderspecific equipment like mammography units and other diagnostic or treatment 

equipment that is exclusive in the care of women at its medical facilities. 

VHA policy dictates that women veterans will have exclusive space—space that 

is a separate physical location for the delivery of comprehensive primary care to 

women and is not shared by other clinics providing care to male veterans (VHA Directive 1330.07). VHA has made progress in developing such sites, but needs to assure all clinics have basic features such as privacy curtains and examination tables 

faced away from doors to assure the environment is conducive to patient treatment 

for all veterans. 

Section 3 would require the Secretary to establish policies for environment of care 

(EOC) inspections, including the frequency of inspections and the roles and responsibilities of staff in performing inspections and complying with standards. 

VHA’s EOC requirements are set in place to protect the privacy, safety, and dignity of women veterans when they receive care. In December 2016, The Government 

Accounting Office (GAO) released a report illustrating areas of concern in compliance with VHA’s EOC requirements. A range of oversight deficits has occurred, including in the EOC rounds inspections process, weakness in policies and guidance, 

and variability in methods of data collection by facility staff and selection of information to report to VHA Central Office. In addition, when noncompliance is noted, 

guidelines to address the issues are not clearly delegated, nor is there follow up by 

VHA to verify the information received from its facilities. 

VA must ensure its environment of care inspections process is aligned with its 

women’s health handbook to ensure clarity, and uniformity throughout its facilities. 

VHA must also clarify roles and responsibility of medical staff responsible for identifying and addressing noncompliance of the environment of care rounds, and also follow up with its facilities to verify the accuracy of the information received, and to 

see that the deficient areas have been corrected. 

Section 4 would require the Secretary to evaluate the performance of VA medical 

center directors by using health outcomes for women veterans who use VA medical 

services. The VA would be required to publish health outcomes for women veterans 

on a publicly available website including comparisons of the data to male veterans’ 

health outcomes, and explanatory information for members of the public to easily 

understand the differences. 

While it is imperative for VA leadership to ensure all personnel comply with laws, 

policy and directives, it is equally important to ensure the measuring criteria are 

clearly understood, the goal is obtainable, and that adequate resources are supplied. 

Administrators have control over ensuring that policies are disseminated and followed throughout their facilities, but they cannot necessarily control health outcomes which are a byproduct of patient genetics, patient behavior and physicians’ 

care. To attach health outcomes as a performance measure of the directors, then, 

does not appear to be appropriate. 

A more suitable measure would be to hold the directors responsible for compliance 

and non-compliance of VHA law, directives, and policies within their facilities. Policy compliance can be verified through inspections and audits and used to evaluate 

administrative performance. Adherence to policy seems a better measure to ensure 

that administrators are adequately performing within their span of control. 

Section 5 would ensure that every VA medical center employs a full-time obstetrician/gynecologist, and mandates a pilot program to increase the number of residency 

program positions and graduate medical education positions for obstetricians/gynecologists at VA medical facilities, in at least three Veterans Integrated Service 

Networks. 

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Women veterans should be able to receive a basic level of treatment and (or) care 

at any facility of the Department from a knowledgeable women’s health provider. 

It is noted that VHA primary care providers specially trained in women’s health 

care services, such as breast exams—increased by 3 percent and 15 percent respectively, from fiscal year 2014 through fiscal year 2015. However, according to GAO, 

27 percent of VA medical centers lack an onsite gynecologist, and 18 percent of VA’s 

facilities providing primary care lacked a women’s health primary care provider. All 

facilities may not have the patient volume to merit an onsite gynecologist, but any 

facility without the ability to provide this specialized care should have a seamless 

process to refer women for necessary gender-specific care without delay. DAV supports this section; however, we want to ensure that facilities have the sufficient volume of women veteran patients to support a full-time obstetrician/gynecologist and 

the residency pilot program. 

Section 6 would require the development of procedures to electronically share veterans’ military service and separation data; email address; telephone number; and 

mailing address with State veterans’ agencies in order to facilitate the assistance 

of benefits veterans may need. Under the bill, veterans would retain the option of 

not participating in this information exchange. Sharing of this information would 

make it easier to verify veterans’ status and enable State agencies to respond more 

quickly to the needs of eligible veterans. 

Section 7 would instruct the Government Accountability Office to examine whether VA medical centers are able to meet the health care needs of women veterans 

across a number of specific dimensions of care, including access, specialization, outcome differences, outreach and other key elements. Such a report would be valuable 

in determining which facilities require assistance to ensure consistency in making 

high-quality care available to women veterans. 

The intent of this bill is consistent with DAV’s 2014 Report, Women Veterans: The 

Long Journey Home; thus, the bill carries DAV’s full support. The bill is also consistent with DAV Resolution No. 129 to support enhanced medical services and benefits for women veterans, passed by the delegates to our most recent National 

Convention. 

It is in line with DAV Resolution Nos. 129, calling for the support of enhanced 

medical services and benefits for women veterans, and 244, calling for support of 

the provision of comprehensive VA health care services to enrolled veterans. 

S. 1024, VETERANS APPEALS IMPROVEMENT AND MODERNIZATION ACT OF 2017

As this Committee knows, over the past year a remarkable workgroup comprised 

of the Veterans Benefits Administration (VBA), the Board of Veterans Appeals 

(Board) and a group of stakeholders who represent veterans, including DAV, spent 

significant time developing a new framework to modernize and streamline the appeals system. Through further consultation and collaboration with this Committee 

and others in Congress, we now have bipartisan appeals reform legislation, S. 1024, 

that DAV strongly supports. A similar bipartisan House bill, H.R. 2288, was also 

recently introduced, and we look forward to swiftly moving a final version of the 

appeals reform legislation through Congress and onto the President’s desk to sign 

into law. 

It is important to begin with the understanding that the pending and growing appeals inventory was primarily an unfortunate, yet foreseeable consequence of a longterm lack of adequate resources for both VBA and the Board. Over the past five 

years, there was a clear shift of focus and resources inside VBA to bringing down 

the claims backlog, thereby neglecting the appeals processing at VA Regional Offices 

(VARO) and resulting in today’s staggering appeals backlog. Moving forward, adequate resources will be critical to the success of appeals reforms, as well as continuing progress on the claims backlog. 

The new appeals framework developed by the workgroup, and embodied within 

this legislation, would protect the due process rights of veterans while creating multiple options for them to receive their decisions in a more judicious manner. The 

critical core of the new framework would allow veterans to have multiple options 

to reconcile unfavorable claims’ decisions, introduce new evidence new evidence at 

both the Board and VBA, and protect their earliest effective dates without having 

to be locked into the current long and arduous formal appeals process at the Board. 

In general, the new framework offers three main options for veterans who are 

unsatisfied with their claims decision. First, there will be an option for a local, higher-level review of the original claim decision based on the evidence of record at the 

time of the claim decision. Second, there will be an option for readjudication and 

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quested. Third, there will be an option to pursue an appeal to the Board—with or 

without new evidence or a hearing. 

The central dynamic of this new system is that a veteran who receives an unfavorable decision from one of these three main options may then pursue one of the 

other two appeals options. As long as the veteran continuously pursues a new appeals option within one year of the last decision, they would be able to preserve 

their earliest effective date, if the facts so warrant. Each of these options, or ‘‘lanes’’ 

as some call them, have different advantages that allow veterans to elect what they 

and their representatives believe will provide the quickest and most accurate 

decision. 

For the higher-level review option, the veteran could choose to have the review 

done at the same local VARO that made the claim decision, or at another VARO, 

which would be facilitated by VBA’s electronic claims files and the National Work 

Queue’s ability to instantly distribute work to any VARO. The veteran would not 

have the option to introduce any new evidence, nor have a hearing with the higherlevel reviewer, although VBA has indicated it may allow veterans’ representatives 

to have informal conferences with the reviewer in order for them to point out errors 

of fact or law. The review and decision would be ‘‘de novo’’ and a simple ‘‘difference 

of opinion’’ by the higher-level reviewer would be enough to overturn the decision 

in question. If the veteran was not satisfied with the new decision, they could then 

elect one of two options. 

In addition, for this higher-level review, VA’s duty to assist (DTA) would not 

apply since it is limited to the evidence of record used to make the original claims 

decision. If a DTA error is discovered that occurred prior to the original decision, 

unless the claim can be granted in full, the claim would be sent back to the VARO 

to correct any errors and readjudicate the claim. If the veteran was not satisfied 

with that new decision, they would still elect the other appeal options. It is critical 

that relevant information be captured relative to decisions that have been overturned by a higher-level reviewer, the number of decisions upheld, and the number 

of decisions sent back to the VAROs to correct DTA violations. This information is 

needed to correct any claims processing errors that may be taking place within 

VAROs. 

For the readjudication/supplemental claims option, veterans would be able to request a hearing and present new evidence that would be considered in the first instance at the VARO. VA’s full DTA would apply during readjudication, to include 

development of both public and private evidence. The readjudication would be a de 

novo review of all the evidence presented both prior to and subsequent to the claims 

decisions until the readjudication decision was issued. As with a higher-level review, 

if the veteran was not satisfied with the new decision, they could then elect one of 

two options to continue redress of any contested issues. These first two options take 

place inside VAROs and cover much of the work that is currently done in the current Decision Review Officer (DRO) process, although it would be divided between 

two different lanes: one with and one without new evidence or hearings. 

For the third option, a notice of disagreement (NOD) would be filed to initiate 

Board review, triggering the formal appeal process. The Board would operate two 

separate dockets, one that does not allow hearings and new evidence to be introduced; and a second that allows both new evidence and hearings. The Board would 

have no DTA obligation to develop any new evidence presented. For both of these 

dockets, appeals would be routed directly to the Board and there would no longer 

be Statements of the Case (SOCs), Supplemental Statements of the Case (SSOCs) 

or any VA Form 8s or 9s to be completed by VBA or the veteran. The workgroup 

had established a goal of having ‘‘no hearing/no evidence’’ appeals resolved within 

one year, but there was no similar goal discussed for the more traditional appeals 

docket. While eliminating introduction of evidence and hearings would naturally 

make the Board’s review quicker, it is important that sufficient resources be allocated to the traditional appeal lane at the Board to ensure a sense of equity between 

both dockets. 

For appeals that request hearings before the Board, veterans could choose either 

a video conference hearing or an in-person hearing at the Board’s Washington, DC 

offices; there would no longer be travel hearing options offered to veterans. New evidence would be allowed, but limited to specific timeframes: if a hearing is elected, 

new evidence could be presented at the hearing or for 90 days following the hearing; 

if no hearing is elected, new evidence could be presented with the filing of the NOD 

or for 90 days thereafter. If the veteran was not satisfied with the Board’s decision, 

they could elect one of the other two VBA options, and if filed within one year of 

the Board’s decision, they would continue to preserve their earliest effective date. 

The new framework would impose no limits on the number of times a veteran could 

choose one of these three options, and as long as they properly elected a new one 

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within a year of the prior decision, they would continue to protect their earliest effective date. 

If the Board discovers that a DTA error was made prior to the original claims decision, unless the claim can be granted in full, the Board would remand the case 

back to VBA for them to correct the errors and readjudicate the claim. Again, if the 

veteran was not satisfied with the new claim decision, they could choose from one 

of the three appeals options available to them, and as long as they properly made 

that NOD election within one year of the decision, they would continue to preserve 

their earliest effective date. 

Improving Claims Decision Notification 

While the workgroup was initially focused on ways to improve the Board’s ability 

and capacity to process appeals, from the outset we realized that appeals reforms 

could not be fully successful unless we simultaneously looked at improving the front 

end of the process, beginning with strengthening claims’ decisions. A clear and complete explanation of why a claim was denied is the key to veterans making sound 

choices about if and how to appeal an adverse decision. Therefore, a fundamental 

feature of the new appeals process must include ensuring that claims’ decision notification letters are adequate to properly inform the veteran. 

Under the new framework, the contents of the notification letter must be clear, 

easy to understand and easy to navigate. The notice must convey not only VA’s rationale for reaching its determination, but also the options available to claimants 

after receipt of the decision. The bill includes this provision to require that in addition to an explanation for how the veteran can have a claim decision reviewed or 

appealed, all decision notification letters must contain the following information to 

help them in determining whether, when, where and how to appeal an adverse 

decision: 

(1) Identification of the issues adjudicated; 

(2) A summary of the evidence considered by the Secretary; 

(3) A summary of applicable laws and regulations; 

(4) Identification of findings favorable to the claimant; 

(5) In the case of a denial, identification of elements not satisfied leading to the 

denial; 

(6) An explanation of how to obtain or access evidence used in making the decision; and 

(7) If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation. 

Overall, the new framework which is embodied in the legislation would provide 

veterans with multiple options and paths to resolve their disagreements more quickly, while preserving their earliest effective dates to receive their full entitlement to 

benefits. The structure would allow veterans quicker ‘‘closed record’’ reviews at both 

VBA and the Board, but if they believe that additional evidence is needed to satisfy 

their claim, they retain the right to introduce new evidence, or request a hearing 

at either VBA or the Board. If implemented and administered as envisioned by the 

workgroup, this new appeals system could be more flexible and responsive to the 

unique circumstances of each veteran’s claim and appeal, leading to better outcomes 

for many veterans. 

Significant Improvements to the Appeals Framework in this Legislation 

Although this bill embodies the appeals modernization framework agreed to by 

the workgroup last year, it also includes some significant improvements. 

First, the legislation would enhance effective date protections for claimants that 

choose to file appeals with the Court of Appeals for Veterans Claims (Court). Claimants could preserve their effective dates for continuously pursued claims, if they 

choose to file a supplemental claim within one year following a decision from these 

courts. This is a fair and equitable approach to provide claimants with the option 

to exercise their full appellate rights, without having to potentially jeopardize their 

effective date. 

Second, under this proposal, claimants with legacy appeals would be permitted to 

enter into the new system at certain junctures. In instances when a SOC or SSOC 

is issued, claimants would have the opportunity to opt into the new processing system. In addition, the legislation would allow veterans who file a NOD within one 

year of the new system becoming effective to have the option to enter into the new 

system rather than being forced to undergo processing in the legacy system. These 

changes were proposed by VBA and the Board, and DAV supports them. Allowing 

claimants to make well informed decisions on the type of processing that is in their 

best interest would not only help to reduce the number of legacy claims, but provide 

these claimants with options best suited for their individual circumstances. 

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Third, in order to provide greater assurance that VBA and the Board are prepared 

to make this major transition to a new appeals system, the legislation would require 

the Secretary to submit a detailed transition and implementation plan, and then require the Secretary to certify that all elements are in place to efficiently process legacy claims and run the new modernized system. Furthermore, VSO collaboration is 

required along with this certification, a provision that serves everyone’s best interests. DAV looks forward to continuing to work with VBA, the Board and Congress 

to ensure the transition and implementation is as smooth as possible. 

Last, the legislation contains detailed reporting requirements, along with oversight to be performed by the Government Accountability Office (GAO). It is essential 

to have continuous real-time data concerning elements of both the legacy system 

and modernized system. In order to measure VA’s progress, these metrics will assess where modifications would be needed in order to improve processing within either system. The oversight performed by GAO is another effective way of ensuring 

these changes produce a positive outcome for claimants within the legacy and modernized systems. 

RECOMMENDATIONS

Options Following decision by the Agency of Original Jurisdiction 

Section 2(h)(1) of this bill sets forth the options available to a claimant once a 

decision has been made, which include, but are not limited to, filing a supplemental 

claim, requesting a higher level review, or filing a notice of disagreement. 

Within this provision, there is some uncertainty how the word ‘‘claim’’ would be 

interpreted. Today a single claim can contain one issue, or multiple issues. The intention is to allow a claimant to choose any of the three options noted above separately for each ‘‘issue’’ contained within a claim in order to avoid any unintended 

consequences that would disadvantage a claimant. For example, a veteran seeking 

an increased rating for hearing loss should be able to choose to file a supplemental 

claim for that issue, while also filing their notice of disagreement to the Board for 

the denial of service connection for a left knee disability. Allowing each issue to flow 

through the most appropriate ‘‘lane’’ will not only result in more timely decisions 

for the veteran, it will also make more efficient use of both VBA and Board resources. 

DAV recommends: 

• The legislation clarifies that claimants can elect different appeals options for individual issues decided within a claim. 

Appeals to the Board 

The manner in which evidence would be handled by the Board, particularly, as 

it pertains to their DTA requirements would fundamentally change under this proposal. The legislation would require the Board to establish at least two separate 

dockets, while providing them with the ability to create additional dockets. 

For cases before the Board wherein no hearing is elected on the NOD, and where 

there is no request to submit additional evidence, the evidence considered by the 

Board would be limited to the evidence of record at the time of the agency of original jurisdiction decision. 

For cases with no hearing request, but a claimant elects to have new evidence 

considered by the Board in the first instance, that evidence must be submitted by 

the appellant, or his or her representative, if any, with the NOD and within 90 days 

following receipt of the NOD. 

For cases wherein a hearing is requested, new evidence would be limited to evidence submitted by the appellant, and his or her representative, if any, at the Board 

hearing and within 90 days following the Board hearing. In this instance, the legislation does not make clear whether evidence presented with the NOD or 90 days 

thereafter would be accepted, returned or ignored. Would the Board really ignore 

evidence that arrived one day prior to a hearing? 

DAV is pleased to see the inclusion of robust reporting requirements in the bill, 

particularly as it pertains to appeals processing metrics for each separate docket. 

Furthermore, we are pleased to see the inclusion of a provision requiring the Board 

to send written notice to claimants when new evidence they submit is not considered in making the decision because the evidence was not received within the established timeframes. The notice would also contain information on a claimant’s option 

to have the evidence considered by VA following the decision through another one 

of the lanes. 

DAV recommends: 

• That claimants electing a Board hearing, with the option to supply evidence, 

should be permitted to introduce this evidence from the filing of the NOD until 90 

93 

days after the hearing. Evidence presented prior to a hearing should simply be 

made part of the record and considered in conjunction with the appellate issues before the Board. Since the Board no longer would have any DTA obligations, all new 

evidence would be considered at the same time after the hearing. • The legislation would also provide the Board with the authority to screen cases 

in order determine if further development is required earlier in the process, rather 

than waiting longer to accomplish the same thing. To assure this authority is properly utilized, DAV recommends: 

• The Board be required to report on all screened cases, delineated by: 

– The number of issues found to require additional development; 

– The types of issues that required additional development, i.e., issues involving service connection, or issues involving increased ratings; 

– The number of claimants that chose to opt into the new system following remand; 

– The number of claimants that chose to remain in the legacy system following 

remand; 

– The number and types issues that were granted based on screening; 

– The number of cases containing multiple decisions, including how many of 

the issues were remanded, denied, or allowed. 

The legislation mandates the creation of at least two dockets discussed above, and 

also provides authority for the Board to create additional dockets, subject to notifying the Senate and House Veterans’ Affairs Committees with justification. The 

Board might consider creating a third docket in order to separate appeals that will 

include new evidence, but do not request a hearing. As it stands now, veterans who 

submit new evidence, but do not request a hearing, could be forced to wait months 

or even years behind veterans who request a hearing. A third docket could avoid 

such unnecessary delays for veterans, allow greater oversight and make more efficient use of Board resources. 

‘‘New and Relevant’’ Evidence 

The legislation would replace the standard for reopening claims, changing ‘‘new 

and material’’ to ‘‘new and relevant.’’ In the current system, the ‘‘new and material’’ 

standard has not effectively functioned as intended to focus VBA and Board resources on adjudicating the substance of claims and appeals. 

In order to monitor whether the ‘‘new and relevant’’ standard will be more effective in this regard, while continuing to protect veterans’ rights, DAV recommends: 

• VBA and the Board should regularly report on the number and outcome of ‘‘new 

and relevant’’ decisions, including— 

– The number of supplemental claims denied because no ‘‘new and relevant’’ 

evidence had been received; 

– The number of higher level reviews filed with respect the issue of no ‘‘new 

and relevant’’ evidence, and the disposition of these higher level reviews; 

– The number of appeals filed with respect to the issue of no ‘‘new and relevant’’ evidence, which Board docket or options were used, and the outcome of 

the Board’s determination, i.e., decisions upheld, decisions overturned, cases remanded for DTA violations. 

Stakeholder Transition and Implementation Advisory Committee 

Since March 2016, DAV, Congress, VA, the Board and other stakeholders have 

worked very closely to develop and refine the appeals modernization proposal. This 

partnership has been integral to making sure a modernized system will benefit our 

Nation’s injured and ill veterans, without compromising their due process rights and 

keeping VA’s non-adversarial roll intact. 

We are appreciative of the provision contained within this bill requiring the Secretary to collaborate and consult with veterans’ service organizations and other 

stakeholders considered appropriate by the Secretary, as part of the certification required to begin operating the new appeals system, and expect that our continued 

partnership with VA will benefit both veterans and the VA. However, the hard work 

of implementing and operating this new system will continue for many years, and 

VSOs and other stakeholders can and must continue to play an integral role supporting this effort. 

To ensure this partnership continues on throughout all phases of the implementation process, DAV recommends: 

• The legislation include a provision to create a ‘‘Stakeholder Transition and Implementation Advisory Committee’’ to engage with VBA and the Board during 

implementation, transition and operation of the new system. This advisory committee should be composed of at least the three largest VSOs in terms of the numVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00097 Fmt 6633 Sfmt 6621 Z:\ACTIVE\051717.TXT PAULIN
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ber of claimants they represent before VBA and the Board, as well as other major 

stakeholders who represent veterans at VBA or the Board, as determined by the 

Secretary. 

Planning, Oversight and Public Reporting 

The bill includes a number of new planning, reporting and certification requirements that are appropriate for legislation embodying such a significant reform. This 

level of reporting is critical to allow Congress and other stakeholders to help identify 

and offer solutions to unintended consequences and problems that may arise. 

To strengthen this oversight, DAV recommends: 

• The legislation requires that all VA plans, metrics and reports provided to Congress also be made immediately available to the public. 

Temporary Staffing Increases 

Finally, as mentioned above, the most critical factor in the rise of the current 

backlog of pending appeals was the lack of sufficient resources to adequately manage the workload. Similarly, unless VBA and the Board request and are provided 

adequate resources to meet staffing, infrastructure and IT requirements, no new appeals reform will be successful in the long run. As VBA’s productivity continues to 

increase, the volume of processed claims will also continue to rise, which has historically been steady at a rate of 10 to 11 percent of claims decisions. In addition, the 

new claims and appeals framework will likely increase the number of supplemental 

claims filed significantly. 

We are encouraged that VA has indicated a need for greater resources for both 

VBA and the Board in order to make this new appeals system successful; however, 

too often in the past funding for new initiatives has waned over time. We would 

urge the Committee to ensure that proper funding levels are determined and appropriated as this legislation moves forward. 

Over the past few years, DAV and our Independent Budget partners have recommended that Congress consider providing VBA with the temporary authority and 

resources to hire two-year temporary employees. In the past, VBA used such an authority to hire several thousand employees for a temporary two-year term. At the 

end of those two years, many of the best that were hired on a temporary basis 

transitioned into permanent positions that became open due to attrition. VBA not 

only had additional surge resources to work on the claims backlog during the first 

two-years, but VBA also benefited by creating a pool of trained, qualified candidates 

to choose from as replacements for full-time employees leaving VBA. 

The bill recognizes the need to address personnel requirements within the VBA 

and the Board as they implement and administer the modernized appeals system, 

as well as address the legacy appeals. In order to provide a surge capacity to address both appeals and claims, DAV recommends: 

• VBA and the Board are provided additional authority and resources to hire twoyear temporary employees, with the goal of eventually converting the best of the 

temporary employees into permanent employees based on the future and continuing 

personnel requirements of VBA and the Board. 

This legislation represents a true collaboration between VA, VSOs, other key 

stakeholders and Congress in order to reform and modernize the appeals process. 

We are confident this bill, with the additional improvements recommended by DAV 

and others, could provide veterans with quicker favorable outcomes, while fully protecting their due process rights. 

S. 1094, DEPARTMENT OF VETERANS AFFAIRS ACCOUNTABILITY AND WHISTLEBLOWER

PROTECTION ACT OF 2017

This legislation seeks to enhance accountability for VA managers and employees, 

strengthen protections for whistleblowers and enhance VA’s ability to hire certain 

senior health care director positions. The bill would codify and strengthen the Office 

of Accountability and Whistleblower Protection recently created by Executive Order, 

in order to manage and investigate whistleblower disclosures, train staff about protecting whistleblowers and to report upon methods that might be used to retaliate 

against them. The bill would also lower the administrative burden for firing, demoting or taking other adverse personnel actions against VA senior executives and employees who are poor performers or who have engaged in misconduct, including 

criminal activity. 

As detailed in DAV Resolution 068, we support meaningful accountability measures as long as they include appropriate due process protections for VA employees. 

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duct and job performance, while enabling VA to become an employer of choice in 

order to engage the best and brightest employees to care for our ill and injured 

veterans. 

The bill would provide the Secretary with new authorities to hold senior managers 

and employees accountable by streamlining, standardizing and shortening certain 

timelines and processes used to implement personnel actions, including reprimands, 

suspensions, demotions or firings. We agree that it is critical that the Secretary be 

given adequate tools to quickly discipline or remove employees who endanger veterans’ health or welfare, commit a felony, engage in misconduct, abuse their positions of trust or otherwise fail to adequately perform their jobs. However we must 

also remain cognizant that applying different accountability standards with fewer 

job protections to just one Federal agency could have unintended consequences on 

recruitment and retention, particularly in highly competitive fields, such as health 

care and information technology, which already have critical professional staff shortages. For some potential VA employees, job stability and due process in employment 

matters are attractive features of Federal employment that help mitigate against 

others including lower pay, benefits or career advancement possibilities. 

The legislation also makes a significant change to the evidentiary burden imposed 

on VA when exercising the new authority to reprimand, suspend, reassign, demote, 

or remove employees. Currently, personnel actions taken for any reason other than 

performance, such as for misconduct, require that a ‘‘preponderance of the evidence’’ 

standard be satisfied, which is generally interpreted to mean greater than 50 percent of the evidence. This legislation, however, would lower the burden to ‘‘substantial evidence,’’ which the Supreme Court has interpreted to mean ‘‘more than a mere 

scintilla’’ of evidence. This significant reduction in evidentiary burden would certainly have the effect of making personnel actions against employees, up to and including firing, substantially easier for VA to implement, however it is unclear how 

such a change would affect the important balance between accountability and due 

process. For example, it could theoretically be possible under this new standard that 

a ‘‘preponderance of evidence’’ supports an employee’s defense, yet they could still 

be removed from their job as long as there is ‘‘more than a mere scintilla’’ of evidence produced by VA—that is, there may be some relevant evidence as reasonable 

minds might accept as adequate to support VA’s action to remove an employee even 

if it is possible to draw a contrary conclusion from the evidence. We have concerns 

about whether this new standard might have unintended consequences in terms of 

making VA a less desirable choice for potential employees, especially in comparison 

to other Federal agencies that are bound by the higher evidentiary standard. 

In light of these concerns, we support Sections 210 and 211, which would assess 

the effect of the enactment of the provisions on accountability of senior executives, 

supervisors, and other employees. We are hopeful these reports will provide valid 

and meaningful outcome data to help determine whether Title II of this bill is 

achieving its intended purpose. 

Much more important in our view than the evidentiary standard is the practical 

reality that no accountability measure can or will be successful unless leaders properly train and hold managers accountable for documenting the performance and conduct of employees, and ensure administrative procedures required are fully and 

properly carried out to initiate personnel actions. We note Section 209 requires VA 

to provide periodic training to supervisors on, among other things, how to effectively 

manage employees who are performing at unacceptable levels. We believe this section is critically important and support its inclusion. In our opinion, true accountability relies more on the actions of VA leaders and managers than on any underlying laws or evidentiary standards. 

DAV supports enactment of the Department of Veterans Affairs Accountability 

and Whistleblower Protection Act of 2017. We applaud the bipartisan effort to ensure greater accountability and strengthened whistleblower protections within VA 

and thank Senators Rubio, Tester and Isakson for working with DAV to ensure VA 

is able to enforce accountability standards to attract, hire and retain the brightest 

and best employees our Nation has to offer to care for ill and injured veterans. 

DRAFT BILL—SERVING OUR RURAL VETERANS ACT OF 2017

This bill directs the VA to establish an eight-year medical residency training program in conjunction with the Indian Health Service to train medical residents and 

interns at ‘‘covered facilities,’’ which are defined as facilities operated by an Indian 

tribe or the Indian Health Service (IHS). 

Additionally, it amends section 7406 of title 38, United States Code, by replacing 

the term ‘‘department facility’’ with ‘‘covered facility.’’ In this instance, covered facility is defined as any department facility or one of the four types of newly added 

96 

covered facilities; IHS facilities, Indian tribe facilities, federally qualified health centers, and community health centers. VA would reimburse covered facilities for their 

participation in the program and require any participating medical resident to enter 

into an agreement for a period of obligated service of one year for each year served 

in the medical residency training program. 

DAV Resolution No. 055 supports fulfilling the rights and benefits earned by service-connected Native American and Alaska Native veterans and urges Congress to 

ensure that the five mutual goals recognized by the current memorandum of understanding between the VA and the IHS is fully implemented so that these veterans 

can receive the benefits and services they have earned and deserve. In light of our 

resolution, DAV supports the intent of this bill and urges the Committee strengthen 

certain provisions. 

The reimbursement requirements laid out in the bill goes well beyond salary and 

benefit reimbursement for the participating residents. Given the defined and already limited resources of the VA, Congress must appropriate additional funding for 

the VA Office of Academic Affiliations to ensure existing residency programs are not 

adversely impacted due to the substantial cost of developing, standing up, and administering, as well as recruiting for the pilot program. We recommend authority 

for this program be subject to specific appropriated funds. 

Furthermore, because it is uncommon for the service obligation to exist in other 

medical programs generally available to most medical students seeking a residency, 

we urge the Committee work with VA and other appropriate entities to address the 

period of obligated service required by the bill, which could act as a disincentive to 

recruiting top candidates in the medical field. 

DAV thanks Senator Sullivan and the Committee for its support of Native American and Alaska Native veterans, and ask that you confer with the VA Office of Academic Affiliations and the Association of American Medical Colleges to ensure that 

the intentions of the bill most fully meet the needs of this veteran community. 

DRAFT BILL—VETERAN PARTNERS’ EFFORTS TO ENHANCE REINTEGRATION OR

‘‘VETERAN PEER ACT’’ 

Enactment of the Veteran PEER Act would require VA to establish a program 

that includes peer specialists within patient aligned care teams (PACT) in medical 

centers of the VA to promote better integration of mental health services into the 

primary care setting. VA would have to carry out this program in at least 10 VA 

medical centers within the first 180 days of the Act passing and in no less than 25 

locations after two years of the enactment of the bill, including within VA’s five 

polytrauma center locations. 

The bill also would require VA to consider the feasibility of locating peer specialists in rural areas and other locations that are underserved by the Department. VA 

would be required to ensure that the unique needs of women veterans are considered and that female peer specialists are included in the program. The measure includes requirements for routine reporting to include findings and conclusions with 

respect to the program and recommendations related to the feasibility of expanding 

the program. 

Veterans must have the ability to easily access to mental health services especially during a crisis. However, even when in crisis, many veterans are reluctant 

to reach out for help and seek the care they need. Since 2012, VA has hired over 

1,000 Peer Specialists, and some mental health providers indicate that peer-to-peer 

interactions have been extremely helpful to both patients and clinicians. The Center 

for Medicare and Medicaid recognized Peer Support as an evidence-based practice 

a decade ago. Studies have found use of peer specialists is associated with better 

treatment satisfaction, more treatment engagement, less inpatient care utilization 

and more engagement in patients’ communities. However, a recent study published 

in the Journal of Behavioral Health Services and Research found that VA is still 

struggling with identifying appropriate supervision and training for these individuals and has been hesitant to fully include them as part of the patient care team. 

The Veteran PEER Act would assist with ensuring better utilization and inclusion 

of these professionals and could help to improve efficiency of VA peer specialists and 

ultimately health outcomes for veterans. 

We are pleased the bill also includes provisions that would require VA to address 

the needs of women veterans. Findings show that when women return from deployment, the camaraderie and support from their male peers is often short-lived, resulting in isolation for many. Studies have shown that peer support is important 

to a successful transition, but women often report they cannot find a network of 

women who can relate to their military or wartime service. Including the requirement of hiring female peer specialists in this measure helps ensure that women vetVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00100 Fmt 6633 Sfmt 6621 Z:\ACTIVE\051717.TXT PAULIN
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1Federal employee newly hired on or after November 5, 2016, with no previous Federal service, reappointed with at least a 90-day break in service, or military reservists or members of 

the National Guard who return to duty in their civilian positions after a period of military 

service. 

erans will have a peer they can relate to and someone that understands their 

unique needs. Their ability to relate to other veterans because of their shared military experiences and mental health recovery is a key element of the program. 

DAV is pleased to support the Veteran PEER Act, which is consistent with the 

following DAV Resolutions: No. 250, which calls for program improvements for VA 

mental health services to include increased staffing levels, improved outreach to veterans with a focus on reducing stigma when seeking post-deployment readjustment 

and other mental health services; and No. 129, which calls for enhanced medical 

services for women veterans as well as additional methods to address barriers to 

care. Finally, the bill is consistent with recommendations in DAV’s 2014 report, 

Women Veterans: The Long Journey Home that notes the use of peer specialists can 

help reduce stigma and increase the acceptability of mental health care for veterans 

who need it and improve recovery. 

DRAFT BILL—DEPARTMENT OF VETERANS AFFAIRS VETERAN TRANSITION

IMPROVEMENT ACT

The Wounded Warriors Federal Leave Act of 2015 (Public Law 114–75), enacted 

in 2015, provides a separate new leave category, to be known as ‘‘disabled veteran 

leave,’’ of 104 hours to any new 1 Federal employee who is a veteran with a serviceconnected disability rated at 30 percent or more for purposes of undergoing medical 

treatment for such disability for which sick leave could regularly be used. 

Subsequently, because disabled veterans who work for the Federal Aviation Administration (FAA) and Transportation Security Administration (TSA) did not have 

access to additional leave to treat service-related injuries, legislative relief in the 

form of Senator Hirono’s bipartisan Federal Aviation Administration Veteran Transition Improvement Act was enacted into law in October 2016. It ensures that disabled veteran new hired employees at the FAA and TSA have access to the sick 

leave benefit during their first year on the job just as their counterparts in other 

agencies receive. 

Notably, there are other categories of Federal employees not covered by the both 

the Wounded Warrior Federal Leave Act and the FAA Veterans Transition Improvement Act including: employees of the United States Postal Service or the Postal 

Regulatory Commission, since they are covered by regulations issued by the Postmaster General; employees not covered under title 5, United States Code, section 

2105 (such as employees of DOD non-appropriated fund instrumentalities); and employees not covered by a leave system (such as those with intermittent work schedules or leave-exempt Presidential appointees). 

It appears disabled veterans employed under title 38 have a separate and distinct 

leave system than that under title 5 and therefore are unable to access the benefits 

provided under the Wounded Warriors Federal Leave Act of 2015. 

We support the intent of this measure as contemplated under DAV Resolution 

260, urging Congress to extend protection under the Family and Medical Leave Act 

(FMLA) to encompass the medical care needs of veterans with service-connected disabilities. We recognize in addition to FMLA, there are a variety of leave options and 

workplace flexibilities available to take time off from work to receive medical treatment for a veteran’s disability, such as annual leave, sick leave, advanced annual 

leave or advanced sick leave, donated leave under the voluntary leave transfer program, alternative work schedules, credit hours under flexible work schedules, compensatory time off and telework and voluntary leave bank program. 

This concludes my testimony, Mr. Chairman. DAV would be pleased to respond 

for the record to any questions from you or the Committee Members concerning our 

views on these bills. 

Chairman ISAKSON. Thank you very much for your testimony. 

Ms. Jaslow? 

STATEMENT OF ALLISON JASLOW, EXECUTIVE DIRECTOR, 

IRAQ AND AFGHANISTAN VETERANS OF AMERICA 

Ms. JASLOW. Thank you, Mr. Chairman, Ranking Member Tester, and Members of the Committee. On behalf of Iraq and Afghanistan Veterans of America, and our more than 425,000 members, 

98 

thank for the opportunity to share our views on the bills under consideration today. 

Less than 60 days ago, I sat before the Members of this Committee and your counterparts in the House of Representatives, to 

outline IAVA’s policy priorities for 2017, chief among them being 

greater recognition and support for woman veterans. I am here 

again today to update you on our She Who Borne the Battle campaign and articulate the need for the Deborah Sampson Act, S. 681, 

which would fill many gaps in care and offer recognition faced by 

woman veterans today. 

Nearly 350,000 women have deployed since our Nation was attacked on September 11, 2001. I am one of those women, and so 

are over 20 percent of our veteran women members. We are the 

fastest growing population in the veteran community, in fact, estimated at about 6 percent of the veteran population in 2001. By 

2020, that number is expected to grow to 11 percent. 

Women’s service has rapidly increased. We are officially allowed 

in the combat roles. The mightiest among us are graduating from 

elite courses like Ranger School. But in IAVA’s most recent member survey, only 43 percent of IAVA women veterans feel that male 

servicemembers respect their service. Even more shocking is just 

27 percent feel the public does. 

When it comes to the VA, only 30 percent of IAVA women vets 

rated the agency’s support for women as good or very good, and 

less than half felt that VA’s staff treated women veterans with respect or had a culture welcoming to women. 

I can relate. Not only have I had to prove my war service to more 

than my fair share of older gentlemen and young feminists alike, 

but I have also had the fortune of being mistaken as a VA nurse 

rather than a patient. That is why I stand shoulder to shoulder 

with our members who have made it clear that there is a severe 

gap in respect for a critical component of our military force, the 

recognition of women as they transition to veteran status, and in 

the services provided by the VA. 

Thanks to the leadership of Senators Tester and Boozman on the 

Deborah Sampson Act, we have an opportunity to take this headon, and the concerns of the post-9/11 women veterans. 

Deborah Sampson disguised herself as a man to serve in the 

Continental Army during the Revolutionary War, served honorably, 

but sadly was not recognized for her service until after her death. 

This bill is named for her because over 240 years later, women are 

squarely in the line of fire, nearly 200 have been killed in action 

in Iraq and Afghanistan, yet adequate recognition for our sacrifices 

is still lacking. 

Since the bill’s introduction, IAVA members have worked to 

highlight the need for the bill on Capitol Hill and gain cosponsors. 

Eighteen of you and your colleagues now back the Deborah Sampson Act, but several of you are dragging your feet, or worse, have 

refused to get behind this initiative that all of the 18 major veteran 

service organizations this Committee works with and many 

support. 

Just last night, the Republican Congresswoman Martha McSally, 

and Democrat Tulsi Gabbard, the only women veterans in the 

House, officially backed the Deborah Sampson Act. The effort in 

99 

this chamber is off to a strong—in that chamber is off to a strong 

start, and as we approach Memorial Day, it is our hope that Members of this Committee will remember the women fallen by following their lead. 

So, what does the Deborah Sampson Act do? Over the last 15 

years, the VA has worked to improve services for women veterans, 

but it is not enough. The Deborah Sampson Act aims to fill critical 

gaps in VA care for women vets, in addition to asking the VA to 

demonstrate its commitment to culture change by updating its 

motto—to care for him who shall have borne the battle, and for his 

widow, and his orphan. 

I urge you to consider carefully the message that Congress supporting a more inclusive motto sends to the women veterans back 

in your home States, or, conversely, what your opposition to this 

provision may indicate to every woman who feels alienated by the 

very agency that is supposed to support them. Every veteran walking through the doors of a VA medical center should see the words 

on that door and know that he, or she, is welcome. 

Setting the right tone at the VA is critical to driving better support and lasting change for women, like peer-to-peer assistance— 

in recent IAVA research, women veterans showed overwhelming interest in peer support to help them navigate the VA—removing access barriers for women seeking care. IAVA women veterans not 

only have suffered lack of privacy at VA facilities but fear about 

the care they might receive also creates a barrier. 

We need to stop hearing stories like the one from a woman with 

a pregnancy who had complications and sought care from the VA 

at the emergency room, but was forced to seek care at an alternate 

ER when the team did not diagnose or treat her condition, accompanied by pain and bleeding, correctly. This should not happen in 

any ER, and disappoints me, as an American, that it happened at 

the VA. 

The Deborah Sampson Act also seeks to improve legal services 

and support, data tracking and reporting, and newborn medical 

care. 

Mr. Chairman and Members of the Committee, many of these 

provisions are easy fixes, but some of you have raised your arms 

complaining about costs. Caring for our veterans should be considered a cost of war. Period. When my soldiers and I were sent to 

combat in Iraq, the Army and U.S. taxpayers spared no expense, 

and I find it quite bold as we are simply talking about equity for 

women veterans that this is even brought up in conversation. 

Chairman Isakson, Ranking Member Tester, and Members of the 

Committee, on behalf of our members, thank you again for inviting 

me here today. I look forward to your support moving the Deborah 

Sampson Act forward, and thank you for putting these veterans— 

excuse me, us veterans—and servicemembers first, as our comrades 

continue to deploy in defense of our Nation. 

[The prepared statement of Ms. Jaslow follows:] 

PREPARED STATEMENT OF ALLISON JASLOW, EXECUTIVE DIRECTOR, 

IRAQ AND AFGHANISTAN VETERANS OF AMERICA

CHAIRMAN ISAKSON, RANKING MEMBER TESTER, AND MEMBERS OF THE COMMITTEE: On behalf of Iraq and Afghanistan Veterans of America (IAVA) and our 

100 

more than 425,000 members thank you for the opportunity to share our views on 

the legislation under consideration today. 

For thirteen years, IAVA has been the preferred empowerment organization for 

post-9/11 veterans. Since its beginning, IAVA has successfully fought and advocated 

for policy action to meet the needs of the over 2.8 million veterans who have served 

in our most recent wars. 

Less than sixty days ago, I sat before the Members of this Committee and your 

counterparts in the House of Representatives to outline IAVA’s policy priorities for 

2017—chief among them being greater recognition and support for women veterans. 

I am here again today to update you on our ‘‘She Who Borne The Battle’’ campaign 

and articulate the need for the Deborah Sampson Act (S. 681) which would fill many 

gaps in care and recognition faced by women veterans today. 

Nearly 350,000 women have deployed since our Nation was attacked on Sept. 11, 

2001. I am one of those women and so are over 20 percent of our veteran members. 

We are the fastest growing population in the veteran community. In fact, estimated 

at about six percent of the veteran population in 2001, by 2020, it’s estimated 

women veterans will represent 11 percent. 

Women’s service has rapidly increased. We are officially allowed into combat roles, 

the mightiest among us are graduating from elite courses like Ranger School. But 

in IAVA’s most recent member survey only 43 percent of IAVA women veterans feel 

that male servicemembers respect their service. Even more shocking is that just 27 

percent feel the public does. 

When it comes to the VA, only 30 percent of IAVA women vets rated the agency’s 

support for women as good or very good, and less than half felt that VA staff treated 

women veterans with respect or had a culture welcoming to women. 

I can relate. Not only have I had to prove my war service to more than my fair 

share of older gentlemen in Legion halls and liberal women alike, but I’ve also had 

the pleasure of being mistaken as a VA nurse rather than patient. That’s why I 

stand shoulder to shoulder with our members who’ve made it clear that there is a 

severe gap in respect for a critical component of our military force, and in the services provided by the VA. 

Thanks to the leadership of Senators Tester and Boozman on the Deborah Sampson Act, we have an opportunity to take head on the concerns of post-9/11 women 

veterans. 

Deborah Sampson disguised herself as a man to serve in the Continental Army 

during the Revolutionary War, served honorably, but sadly was not recognized for 

her service until after her death. This bill is named for her, because over 240 years 

later women are now squarely in the line of fire, and nearly 200 have been killed 

in Iraq and Afghanistan, but adequate recognition for our sacrifices is still lacking. 

Since the bill’s introduction, IAVA has worked to highlight the need for the bill 

on Capitol Hill and gain cosponsors. Eighteen of you and your colleagues now back 

the Deborah Sampson Act, and we thank you, but we need more support from both 

sides of the aisle. 

We have also worked tirelessly with the military and veterans community and I 

am proud to say that 18 of the groups this Committee works with the most are 

standing with us support of this legislation. They include: Veterans of Foreign Wars 

(VFW), American Legion, Disabled American Veterans (DAV), Paralyzed Veterans 

of America (PVA), Vietnam Veterans of America (VVA), American Veterans 

(AMVETS), Jewish War Veterans (JWV), Tragedy Assistance Program for Survivors 

(TAPS), Service Women’s Action Network (SWAN), National Military Families Association (NMFA), Commissioned Officers Association of the U.S. Public Health Service (COA), U.S. Army Warrant Officers Association (USAWOA), Marine Corps Reserve Association (MCRA), Fleet Reserve Association (FRA), Air Force Sergeants Association (AFSA), The Retired Enlisted Association (TREA), Military Officers Association of America (MOAA), and Wounded Warrior Project (WWP). 

We also cannot do this without our members, who have been meeting with their 

Congressional offices across the United States and here in Washington during our 

recent ‘‘Storm The Hill,’’ and raising their voices via social media. 

Our media outreach has been aggressive. More than 5 million people have viewed 

earned media coverage of our campaign, and nearly 4 million have engaged with 

the campaign on Facebook and Twitter. 

Over the last 15 years, the VA has worked to improve services for women veterans, but it’s not enough. The Deborah Sampson Act aims to fills some critical gaps 

in VA care for women vets in addition to asking the VA to demonstrate its commitment to culture changes by updating its motto: ‘‘To care for him who shall have 

borne the battle and for his widow, and his orphan.’’ I urge you to consider carefully 

the message that Congress supporting a more inclusive motto sends to the women 

veterans in your home states. Or conversely, what your opposition to this provision 

101 

may indicate to women who feel alienated by the very agency that’s supposed to 

support them. Every veteran walking through the doors of a VA medical center 

should see the words on that door and know that he or she is welcome. 

Setting the right tone at the VA is critical to driving better support for women, 

like Peer-to-Peer Assistance. 

In recent IAVA surveys and focus groups, women veterans showed overwhelming 

interest in peer support to help them navigate the VA. A pilot program focused on 

women vets transitioning from the military is included in the Deborah Sampson Act 

and makes permanent the availability of reintegration counseling with family members in group retreat settings that has proven successful already in pilot form. 

The bill also expands the capabilities of the women veteran call centers to include 

text messaging, and will be analyzed for performance metrics, which will help us 

understand its impact. 

Legal and Support Services are another key component of the bill. The FY 2015 

Community, Homelessness Assessment, Local Education and Networking Groups 

(CHALENG) Program Report found that one of the top needs for women veterans 

is access to legal services. The Deborah Sampson Act establishes a VA partnership 

with at least one community entity to provide legal services to women veterans as 

a direct result of that finding. The bill also ensures that at least $20 million in Supportive Services for Veteran 

Families (SSVF) will be allocated for organizations to support women vets. In FY 

2015, 14 percent of veterans served by this program were women. That number has 

steadily increased since the program’s inception. These dedicated funds will help 

support the growing number of women and their families in need of this support. 

In 2012, the VA solidified its policy to provide seven days of Newborn Medical 

Care for children delivered by women veterans who are receiving VA maternity care 

benefits. The Deborah Sampson Act would expand that to 14 days to ensure newborn the VA has the flexibility to provide that care during this fragile first stage 

of their life. This bipartisan idea is a no-brainer that has stalled in Congress for 

too long and needs to change now. 

There continue to be a number of Access Barriers for women veterans seeking 

care at the VA. IAVA women veterans have shared stories of lack of privacy at VA 

facilities and IAVA members continue to share those concerns. The Deborah Sampson Act looks to address this issue by authorizing $20 million for enhanced privacy 

measures for women at VA medical centers across the country like door locks and 

privacy curtains, and requires VA to develop a plan to address Department-wide 

deficiencies. 

We also want to stop hearing stories like the one from a woman who sought care 

at the VA’s Emergency Room because of an ectopic pregnancy accompanied by pain 

and bleeding. The veteran had to leave and go to another VA ER because the ER 

team did not diagnose or treat her condition appropriately. This shouldn’t happen 

in any ER, and disappoints me as an American to hear from a women veteran. 

To improve how the VA health system supports women, the Deborah Sampson 

Act: requires every VA facility to employ at least one women’s health primary care 

provider; requires each VA medical center be staffed with at least one Women Veteran Program Manager to help women navigate coordinated care; authorizes $1 million annually to expand the Women Veterans Healthcare Mini-Residency Program, 

which trains VA primary care and mental health physicians on gender-specific care 

with demonstrated success, to include ER physicians; and an ombudsman to focus 

on culture change at the VA and support women veterans seeking care. 

One in five women veterans responding to IAVA’s women veterans survey did not 

feel the VA provided them with access to adequate gender-specific health care, so 

the solutions offered are engineered not just to get women the health care support 

they need, but to do so effectively. Fear of poor care should never be a barrier to 

any VA patient. 

The Deborah Sampson Act finally includes valuable Data Tracking and Reporting 

provisions to assess needs and improve services down the line. 

Currently, the VA does not collect data on its programs by gender and minority 

status, and as a result, it is impossible to truly identify what programs are most 

effective in supporting women and minority populations and which need improvement. The recently enacted Female Veterans Suicide Prevention Act was a great 

first step to do this for mental health and suicide prevention programs, but the requirement needs to span all programs and this bill requires that. 

Women also shouldn’t be telling us stories of the VA being unable to provide prosthetics appropriately fitted for women veterans. To define this problem and help 

craft solutions to ensure women veteran amputees have access to properly fitted 

prosthetics, the Deborah Sampson Act requires VA to report on the availability of 

prosthetics made for women. 

102 

The bill also importantly requires VA to centralize information and resources on 

women’s healthcare at VA on their website to streamline the ability of women veterans to find and learn about the services offered to them. Less than 60% of women 

responding to IAVA’s women vets survey said VA provided sufficient information 

and resources on women’s healthcare at VA. As demand continues to rise from 

women veterans as it declines from men, this should be a commonsense fix that is 

not just pro-women, but pro-veteran. 

Among the remainder of the bills under consideration today, IAVA strongly supports the Women Veterans Access to Quality Care Act (S. 804), as we did in the 

114th Congress. Provisions in the bill to ensure standards to meet healthcare needs 

of women are prioritized in construction of VA health facilities, establishment of 

performance measures to analyze women’s health outcomes, and requirements to 

improve privacy for women are consistent with the goals of our ‘‘She Who Borne The 

Battle’’ campaign and we would like to again invite all Members of this Committee 

to cosponsor and work to pass S. 804 and the Deborah Sampson Act. 

IAVA thanks Chairman Isakson and the Committee for engaging and seeking 

input from stakeholders in the effort toward VA appeals modernization that establishes a new system that is easy to navigate and veteran-centric. We are supportive 

of the general framework outlined in Veterans Appeals Improvement and Modernization Act (S. 1024) that establishes three separate paths for veterans to choose 

from when appealing a decision on their claims, and strongly believe that these new 

steps are critical to breaking the logjam in the current process. Following passage, 

IAVA encourages the VA to ensure continual monitoring and evaluation of the new 

processes to ensure improvement of the system. Congress should also exercise 

strong oversight over the law’s implementation to ensure that it truly works for 

veterans. 

IAVA applauds the leadership and diligence of Senators Rubio, Chairman Isakson 

and Ranking Member Tester toward crafting the Department of Veterans Affairs 

Accountability and Whistleblower Protection Act (S. 1094) to enable the removal of 

bad-acting employees at the VA. Nearly three years ago, the scandal in Phoenix 

alerted the country to the outrageous state of the VA health care system. IAVA and 

our members have fought since that time to give the VA Secretary the tools needed 

to address workforce accountability and save veterans’ lives. We encourage Senate 

and House leaders to quickly work together to pass the strongest VA accountability 

measure that can be signed into law. 

IAVA supports the Performance Accountability and Contractor Transparency Act 

(S. 543), which holds VA contractors accountable for services they provide and increases transparency into those contracts. These provisions are in line with our 

members’ top priority of bringing strong accountability to the VA. 

IAVA also strongly supports the Military and Veterans Caregivers Services Improvement Act (S. 591), which makes veterans of all eras eligible for the full range 

of caregiver support services, and would allow those veterans to transfer Post-9/11 

GI Bill benefits to their dependents. All veterans must be afforded the same level 

of benefits, regardless of the era in which they served. It is simply the right thing 

to do. 

We also support the Chiropractic Care Available to All Veterans Act (S. 609), to 

require a program under which the VA will provide chiropractic care and services 

to veterans, as it is consistent with IAVA’s Policy Agenda which calls for treatment 

options that include the full range of traditional and experimental options that have 

proven to be effective. 

The Veterans Compensation Cost-of-Living Adjustment Act (S. 784) would ensure 

that disabled veterans and surviving spouses receive benefits that keep pace with 

the rising cost of living in our country. IAVA supports this bill and we appreciate 

that all Members of the Committee joined Chairman Isakson as original cosponsors. 

The draft Serving our Rural Veterans Act would authorize the VA to pay training 

and supervision of medical residents and interns at certain non-VA facilities, to require the VA to carry out a pilot project to establish or affiliate with residency programs at facilities operated by tribes and the Indian Health Service. It has long 

been a priority in IAVA’s Policy Agenda to improve outreach to rural veterans, 

hence we support this legislation. 

IAVA supports the draft Veterans Partners’ Efforts to Enhance Reintegration Act 

which requires VA to carry out a program to establish peer specialists in patient 

healthcare teams at VA medical centers. IAVA strongly supports peer support programs, including as a way to reach rural veterans who do not live in close proximity 

to military medical facilities, and encourages them to represent the diversity of the 

veteran population, to include women peer mentors. 

Finally, the Department of Veterans Affairs Veteran Transition Improvement Act 

(S. 899) would ensure that Title 38 Veterans Health Administration employees such 

103 

as doctors, nurses and other VA medical personnel can access paid sick leave in 

their first year, that they would otherwise have to accrue, to undergo medical treatment for their service-connected disabilities, as their counterparts in other Federal 

agencies are permitted. IAVA supports this legislation. 

Mr. Chairman, many of these provisions are easy fixes, and some will require 

hard work and additional funds. When my soldiers and I were sent twice to face 

combat in Iraq, the Army and U.S. taxpayers spared no expense, with the goal of 

providing us with an overwhelming advantage in war. Veterans are proud to have 

served our country and we need Congress to know that the care we receive as a 

result of our service is a cost of war, and just as important as properly equipping 

those deploying downrange as we speak. We have got to spare no expense in caring 

for them after they return. Veterans are not a special interest—they answered the 

call when more than ninety-nine percent of American did not. 

Chairman Isakson, Ranking Member Tester, and Members of the Committee, 

thank you again for inviting me to be here today, and on behalf of IAVA, I thank 

and remember our veterans who have served before us and those who are deploying 

now, again, to fight around the globe. 

Chairman ISAKSON. Thank you, Ms. Jaslow. 

Mr. Cox? 

STATEMENT OF J. DAVID COX, SR., NATIONAL PRESIDENT, 

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 

AFL-CIO 

Mr. COX. Thank you for the opportunity to testify today. It is astounding that while the Secretary says there is over 45,000 unfilled 

health care vacancies in the Department, we are here today talking 

about firing rather than hiring. Does anyone here believe that the 

firing that has been in the news during the last week is an unusual 

occurrence? Does anyone here believe that an executive firing a 

subordinate to cover up his or her own misdeeds never happens in 

the Department of Veterans Affairs? I tell you what—when it happens where workers have due process rights, the innocent are 

protected. 

At workplaces with a process for weighing evidence and making 

decisions based solely on facts, no one gets fired without just cause. 

If this bill passes, you can strike VA from that list. The innocent 

will be fired without good cause, the appeals will be a humiliating 

joke, and the executives will continue to ruin the lives of workers 

and hurting veterans. 

So, let us be honest. None of the personnel provisions of this bill 

are really about veterans or accountability. It is about politics. It 

is about ‘‘you are fired’’ as an easy way to shift blame of wrongdoing from executives and political appointees onto the rank and 

file. 

We have a bill that reeks of the—wrecks the apolitical civil service and is justified only by pretending that the most extreme examples of misconduct are occurring all over the place. In fact, instances of outrageous misconduct are rare. 

AFGE has no use for people who abuse the public trust, who engage in unlawful conduct, or are poor performers, or violate government rules or our collective bargaining agreements, or the EEO 

laws. We want them out of the agency. They make everything more 

difficult for the vast majority who perform very well. In addition, 

this bill would supersede existing collective bargaining agreements 

and impose unworkable timeframes on the firing processes. 

We have asked the Committee to at least show some respect for 

the integrity of the collective bargaining process by agreeing that 

104 

the provisions that affect the current contract go into effect only 

after a new contract is negotiated, and I, again, ask for that change 

to be made. 

We understand that bashing Federal employees and taking away 

their rights makes for good politics, and it does make for bad government. And I promise you that under this bill, more employees 

will be fired for bad reasons than for good reasons. 

You want to make it easy for VA managers to fire people. You 

have bought into complaints that firing is too hard for them, when 

every single study shows that current laws provide them all the authority they need to remove anybody who is actually a poor performer or engages in misconduct. 

Our objections to the specifics of the bill are as follows. The first 

is lowering evidentiary standards for adverse actions for misconduct allegations. Replacing the preponderance standard with 

substantial evidence eviscerates due process. With misconduct 

charges, there needs to be a finding of fact. With proposed change, 

there will no longer be a finding of fact with misconduct. As with 

Mr. Comey, it will be enough for the boss to simply want someone 

gone. 

The second and equally irresponsible provision of the bill is to 

prohibit administrative judges at the MSPB from mitigation of penalties. The VA will be able to fire with scant evidence of wrongdoing and reviewing authority will have no ability to correct the injustices by making the penalty match the offense. The prohibition 

on mitigation throws four decades of jurisprudence out the window. 

No more progressive discipline or consideration of whether the penalty is appropriate. No consideration of the nature of the seriousness of the offense, the level of the job, the employee’s record, or 

whether others have committed the same offense and received a 

similar penalty. No rehabilitation and no consideration of the 

circumstances. 

This bill is a serious mistake. We will all miss the apolitical professional civil service when it is gone, and this bill will have made 

a major role in its demise. 

[The prepared statement of Mr. Cox follows:] 

PREPARED STATEMENT OF J. DAVID COX, SR., NATIONAL PRESIDENT, AMERICAN

FEDERATION OF GOVERNMENT EMPLOYEES, AFL–CIO 

INTRODUCTION

MR. CHAIRMAN, RANKING MEMBER TESTER, AND MEMBERS OF THIS COMMITTEE, 

My name is J. David Cox, and I am the National President of the American Federation of Government Employees, AFL–CIO (AFGE). On behalf of the 700,000 Federal 

and District of Columbia employees represented by our union, including over 

250,000 at the Department of Veterans Affairs (VA), I thank the Committee for the 

opportunity to present AFGE’s views on the subject of this hearing: the ‘‘Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017.’’ 

In AFGE’s view, this bill not only decreases accountability at the VA, it eviscerates 

the agency it is supposed to improve, and ensures that no employee ever gets a fair 

shake on any proposed adverse action. Its name should be changed to the ‘‘2017 

Scapegoating VA Rank and File Employees for Political Expediency Act.’’ 

In my nearly five years as president of AFGE, I have never testified at a more 

important hearing than this one. It is important, not only for the VA and the veterans that the we serve, it is also important for the men and women I am proud 

to represent. Finally, it is important because passage of this horrible bill would undermine the apolitical American civil service, perhaps the least appreciated and 

most threatened pillar of our democracy. 

105 

At issue is whether the United States, the most advanced country in the world 

and the leading democracy, will continue to have a merit-based career civil service, 

selected, promoted and retained on the basis of ability and competence, or whether 

we will descend back into 19th century corruption and all the maladministration of 

government that brought us. 

Before I was elected to national office in AFGE, I worked for 22 years at the Salisbury, North Carolina VA Medical Center as a Registered Nurse. I love the VA and 

the veterans we serve, and the future of the agency means the world to me. I also 

care deeply about our democracy, and I am appalled at the political cynicism and 

short-sightedness that this bill represents. 

While today we are focusing on the VA, much more than just the VA is at stake. 

The Veterans Health Administration is somewhat of a microcosm of the many ideas 

and institutions whose future is being hotly debated in politics today. I will discuss 

three: The first is health care. The second is the role of the Federal Government 

in providing essential services and on what terms these commitments will be met. 

The final issue is the status of the career civil service, and whether we will continue 

to administer government programs with apolitical professionals hired by the government, or whether most of what the VA does should be contracted out to favored 

private-sector firms, or even abandoned altogether. 

First, let’s deal with the backdrop—the American health care system. The VA operates the country’s largest integrated healthcare system. The military veterans it 

serves are the most deserving group one can imagine. The commitment we have 

made to veterans is to care for those who have borne the battle. The VA cares for 

aging Vietnam-era veterans, veterans from the Korean War era and even some surviving WW II veterans. In the past 15 years we have added many more veterans 

who have served this country in Iraq and Afghanistan and other more recent conflicts. Almost all of these veterans often have ongoing service-connected illnesses 

and wounds, emotional and physical. 

The VA has always been there to serve them. The economic cost of caring for 

these veterans is high and budget politics have been an ever-present threat to quality and accessibility. It is astounding that while there are reportedly up to 45,000 

unfilled positions in VA healthcare, Congress has chosen to focus on attacking the 

rank and file employees who are have made the choice to spend their careers caring 

for this cherished group. Rather than addressing the critical need to fill thousands 

of urgently needed positions at VA in order to better serve veterans, this cynical, 

ideologically driven bill seeks to fire more VA personnel. Talk about misplaced 

priorities. 

Why punish the VA’s rank and file? Why punish the employees of VHA? There 

is no question that VA healthcare is of the highest quality. And that high quality 

healthcare is provided by the same VA employees this bill attacks. Every independent study has confirmed that the outcomes of VA provided healthcare are at 

least as high, and frequently higher than care provided by any other hospital system. Veterans know this and numerous surveys show that they very much like their 

VA-provided health care. They want more of it, not less. 

Ever since the Phoenix waitlist scandal, the future of the VA became fodder for 

24 hour cable news, largely fed by the right-wing. The focus of discussion for many 

politicians has been how to dismantle the VA piece-by-piece and outsource it to the 

private sector. Well-funded and therefore politically powerful groups have seized the 

opportunity to cement a narrative that the VA is ‘‘broken.’’ Their purpose is to discredit the VA by blaming its problems on its rank and file employees and the fact 

that it is a government agency. Their real objection is that few are able to make 

profits on VA care. 

I challenge anyone on this Committee to find a major healthcare provider, private 

or public, that doesn’t face significant challenges. Most don’t make the news because 

they are not answerable to the public the way the VA is, and most are able to fire 

or otherwise silence whistleblowers with ease. But anyone who has gone to a private 

hospital or even an emergency room can tell you about long waits, enormous bureaucracy, and waste, fraud and abuse. They can tell you about how getting an appointment with a specialist takes at least three months. That is sadly part and parcel of our healthcare system, including private sector providers. Just look at any 

hospital bill, or talk to any physician or nurse, and they will tell you of the complexities and contradictions of America’s healthcare system. 

Fortunately veterans have the VA, a system that does not charge them and that 

covers them extremely well. It is so much more than just a healthcare system. It 

is also a community that understands the unique needs of those who have served 

this country. Whatever ails VA healthcare delivery reflects America’s overall 

healthcare system—and in most cases, the faults are more severe among private 

hospitals and healthcare facilities. The critics of the VA will never admit this, so 

106 

I will tell you. There is big money in VA healthcare and the privatizers salivate at 

the opportunity to gain access to those dollars. They try to hide their avarice with 

platitudes about ‘‘serving veterans,’’ the ‘‘broken’’ VA and the miracles of the market, but the reality is that they hate the idea that a large government agency so 

successfully provides care to veterans, and they want a ‘‘piece of the action.’’ 

The VA may not be perfect, but it is better than any other healthcare system at 

serving veterans with special needs associated with service-connected illness, injury, 

or disability. The VA makes no money off veterans. Its facilities may not be glamorous. Yet every important indicator of quality of care strongly confirms that the 

VA is a success. The Committee should recall that the Phoenix scandal began with 

a wait times issue. I will not defend the manipulation of wait time data, but that 

was not an issue of quality of care. It was an issue of resources, combined with a 

performance bonus system for executives that incentivized lying and cheating. It is 

absolutely unconscionable that from those facts has come the deplorable legislation 

before you today that undermines the foundation of the civil service. 

So let’s be honest. None of this is really about veterans or the VA or accountability. It’s about politics. I do believe that everyone wants the best care for veterans. I wish we were having a debate on how to provide that care and to ensure 

accountability for all those who are charged within doing so. But that is definitely 

not what is happening here. 

We are here today because politicians understand that ‘‘You’re FIRED!’’ is popular 

as a way to address complex issues. ‘‘You’re FIRED!’’ is popular as a way to deflect 

responsibility from management decisionmakers and place it on the rank and file. 

We have before us a bill that wrecks the civil service and is justified only by reference to the false claim that the most extreme examples of misconduct are occurring all over the place. In fact, outrageous instances of misconduct are exceedingly 

rare. It must also be noted that some authors of this bill have a long track record 

of denigrating virtually every known government program except those that personally benefit them. No one who values the VA or respects veterans should support 

this legislation. 

I have been specifically asked by this Committee to address the changes to the 

civil service due process provisions contained in the scapegoat/firing bill, the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017. 

Before I address the specifics of these proposals, let me state that AFGE and its 

members have no use for people who abuse the public trust, who engage in unlawful 

conduct, who violate government rules, and who are demonstrably poor performers. 

We want those people out of the VA every bit as much as anyone—maybe more so. 

Employees who engage in misconduct or who are genuinely poor performers ruin the 

reputation of the agency and add more work for those who perform well and play 

by the rules. So you will not hear me or anyone in this union defend a person who 

steals drugs or watches pornography while on duty. In fact, AFGE counsels such 

employees to resign. We certainly will not defend their matters in arbitration. 

The bill before you is a regressive piece of legislation. It takes us backward, not 

forward. Although marketed as a bill to make it easier to fire bad employees, the 

proposals are designed to kill off and bury the apolitical civil service. It makes it 

just as easy to fire a good employee, an innocent employee, as it will be to fire a 

bad employee. No one should pretend otherwise. The VA can and should terminate 

people whose conduct or performance justifies termination. But it is absolutely not 

necessary to destroy the foundation of the civil service in order to allow them to do 

so. 

The legislation takes time-tested procedures for civil service removals and turns 

them on their head in order to accomplish a clearly political agenda. Every single 

study or report of civil service removal procedures has stated that the principle reasons poor performers are not removed expeditiously are management ignorance and 

aversion to conflict, i.e. incompetence. It has nothing to do with the underlying laws. 

Federal managers, including those at the VA, do not lack adequate authority or 

tools to discipline those who engage in misconduct or who are poor performers. The 

Government Accountability Office (GAO), the Merit Systems Protection Board 

(MSPB) and the Office of Personnel Management (OPM) have all issued reports and 

analyses that have come to the same conclusion: When poor performers are not 

dealt with it is not because the civil service laws or procedures are too difficult to 

utilize. It is because managers do not want to put forward the effort to properly document poor performance so that they can remove or demote these people. 

A recent GAO report, ‘‘Improved Supervision and Better Use of Probationary Periods Are Needed to Address Substandard Employee Performance,’’ (GAO–151–191), 

February 6, 2015, found four main reasons why agencies do not use the already substantial tools they have available to them to remove poor performers. All four reasons related to management failures and/or unwillingness to properly identify and 

107 

document poor performance. Had this Committee taken GAO’s well thought-out recommendations into consideration, the bill before us would never have been written. 

Instead we have a cynical effort to ride the wave of public outrage over some legitimate problems that union whistleblowers and the VA Inspector General have 

brought forward and use it to destroy yet another union and the civil service. We 

continue to hear whining from management that civil service due process procedures are just too difficult to follow. They sound just like the President whining that 

his new job is too hard. S. 1094 accommodates these pitiful managers completely. 

Firing is too hard for you? Don’t worry, we’ll make it easy. We’ll rig the system so 

no matter what you do, you’ll be called a huge success. We’ll let you fire the employee right away, and deal with due process in the future, if ever. 

To call this a dangerous precedent is an understatement. To anyone who cares 

about the apolitical and objectively qualified civil service this bill is a disgrace. 

The premise that the procedural hurdles for removing poorly performing employees are too high is simply untrue. When an employee invokes his/her rights to a 

formal adjudicatory hearing before the Merit Systems Protection Board (MSPB), the 

agency almost always prevails. For example, in 2013 only 3% of employees appealing their dismissal to the MSPB prevailed on the merits. In contrast, agencies were 

favored at a rate five times that of employees when formal appeals were pursued. 

The notion that the MSPB makes it impossible to fire a Federal employee is simply 

a myth. 

GAO reviews and reports (e.g., GAO–15–191) have consistently found that the underlying reasons for permitting poor performers to remain in Federal service are 

managers’ failure or unwillingness to document poor performance in accordance 

with due process procedures available to them under the Civil Service Reform Act. 

The bottom line of the GAO report is that lack of performance management by supervisors is the underlying reason why poor performers are not dealt with. Indeed, 

the preponderance of the evidence points in only one direction: the complaint that 

‘‘it’s too hard to fire a Federal employee’’ is not supported. 

Let me address some of the most egregious and shameful aspects of the bill: 

EVIDENTIARY STANDARD FOR MISCONDUCT

S. 1094 replaces the current evidentiary standard for misconduct removals (and 

other adverse actions) from a ‘‘preponderance of the evidence’’ standard (meaning 

more than 50% of the evidence must support the agency’s recommendation) to a 

‘‘substantial evidence’’ standard (meaning the agency only needs, among other 

things, more than ‘‘a mere scintilla of the evidence’’ to meet its burden of proof). 

The substantial evidence standard, with strong advance notice safeguards, is currently only used for performance-based firings, suspensions, and demotions. Applying this standard to misconduct cases would mean that even when the majority of 

the evidence supports the employee, he/she will lose. 

With the current preponderance of the evidence standard, agencies win about 80% 

of all contested cases before the Merit Systems Protection Board (MSPB). Lowering 

the standard of review would mean that actual misconduct would barely need to be 

established before an employee could be fired. This upends nearly 140 years of civil 

service law, and makes VA employees very close to ‘‘at will’’ (which seems to be the 

real objective of the drafters of this provision). 

There is a good reason why Congress has required different evidentiary standards 

for performance and conduct. When an employee receives a notice of a proposed adverse action related to performance, he or she has the opportunity to repair any performance failures through a Performance Improvement Plan (PIP). In contrast, allegations of misconduct must be validated with a higher standard of evidence because 

the question is only whether the alleged misconduct occurred. 

This lower evidentiary standard is virtually pro forma, not a standard associated 

with the genuine administration of justice. It is yet another example of the cynicism 

that underlies this legislation, providing a false notion that due process is being 

upheld, when in fact, it is being eviscerated. 

MITIGATION OF PROPOSED PENALTY

S. 1094 would prohibit MSPB administrative judges (AJs) from mitigating management’s proposed penalty for misconduct. Under current law, MSPB AJs can reduce a proposed penalty for misconduct if the facts of the case warrant a lesser penalty. Removing the ability of MSPB AJs to mitigate a proposed penalty is not only 

unjust, but will also result in ‘‘penalty overcharging,’’ meaning that a proposed penalty need not actually reflect the underlying charge. Combining a lower evidentiary 

standard of review to sustain a misconduct charge along with no ability to mitigate 

a proposed penalty means that employee appeal rights will be effectively neutered. 

108 

The VA will be able to fire employees with scant evidence and no ability for the 

reviewing entity to correct these injustices. This provision is the antithesis of justice 

and undermines not only the rights of the employee, but also the independence of 

the MSPB. 

This provision also jettisons almost four decades of jurisprudence that followed 

the MSPB’s 1981 decision in Douglas vs. Veterans Administration which gave rise 

to the use of progressive discipline in Federal personnel management. The basic 

principle of justice, that the punishment must fit the offense which was enshrined 

in the Douglas decision, has served the government well, and if S. 1094 becomes 

law, the Department of Veterans Affairs will have abandoned this management 

‘‘best practice’’ altogether for an ‘‘Apprentice’’ TV-show type of system (You’re 

FIRED!). 

I ask you to consider these ‘‘Douglas Factors’’ for a moment and decide whether 

your intention is actually to throw away this eminently reasonable set of considerations. The Douglas Factors allow mitigation of proposed penalty after the following 

are considered: 

1. The nature and seriousness of the offense, and its relation to the employee’s 

duties, position, and responsibilities, including whether the offense was intentional 

or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated; 

2. The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; 

3. The employee’s past disciplinary record; 

4. The employee’s past work record, including length of service, performance on 

the job, ability to get along with fellow workers, and dependability; 

5. The effect of the offense upon the employee’s ability to perform at a satisfactory 

level and its effect upon supervisors’ confidence in the employee’s work ability to 

perform assigned duties; 

6. Consistency of the penalty with those imposed upon other employees for the 

same or similar offenses; 

7. Consistency of the penalty with any applicable agency table of penalties; 

8. The notoriety of the offense or its impact upon the reputation of the agency; 

9. The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question; 

10. The potential for the employee’s rehabilitation; 

11. Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or 

provocation on the part of others involved in the matter; and 

12. The adequacy and effectiveness of alternative sanctions to deter such conduct 

in the future by the employee or others. 

These factors are designed to ensure that the penalty selected by the agency fits 

the employee’s alleged offense. Why are these controversial? Perhaps it is because 

those who genuinely wish to see this legislation enacted really don’t care about the 

civil service or due process, and are particularly enraged that a government program such as VA healthcare actually works. Or perhaps, they just see political expediency in not challenging well-funded ideology-based advocacy courtesy of the Koch 

brothers and their allies. 

PENSION FORFEITURE

The proposed legislation authorizes pension forfeitures for certain felony convictions for every VA employee. This would include Wage Grade 2 housekeepers and 

cemetery workers, virtually all of whom are veterans with service-connected disabilities. Private employer pension plans under the Employee Retirement Security Act 

of 1974 (ERISA) do not authorize pension forfeitures except for fraud against the 

pension plan. AFGE recognizes that there is precedent for Federal employee pension 

forfeiture, but these forfeitures have always involved involve espionage and treason, 

not drunk driving convictions. 

It is curious that people who usually promote following private sector practices 

for Federal Government personnel have suddenly abandoned this principle when it 

comes to taking away earned pensions. 

SUPERSEDES COLLECTIVE BARGAINING AGREEMENTS AND IMPOSES UNWORKABLE TIME

FRAMES ON THE REMOVAL PROCESS

The proposed legislation supersedes the timeframes specified in current active collective bargaining agreements (CBAs). It also imposes unworkably short timeframes 

on grievance procedures and non-grievance based adverse actions. That Congress 

would summarily upend collective bargaining agreements in the middle of the term 

109 

of the agreement is an unprecedented attack on the integrity of the collective bargaining process and union contracts. 

The proposed legislation provides that from date of first notice to the employee 

until actual removal that not more than 15 business days elapse. Employees are 

given only 7 business days to respond to the notice. Following removal, employee 

have only 10 business days to appeal the VA’s decision to the MSPB. 

Contrast these timeframes with the rights given to VA contractors. They have a 

minimum of 90 days to appeal a contracting officer’s adverse decision to the Board 

of Contract Appeals (BCA), and one year to appeal to the U.S. Court of Federal 

Claims, if they decide to forego a BCA appeal. It is absolutely stunning, and a very 

sad commentary on the state of Federal agency priorities that employees are given 

such short response and appeal times, while favored Federal contractors are given 

months, and even up to a year to appeal VA decisions to the BCAs and a Federal 

court. 

A merit-based civil service system is a cornerstone of a democratic society. It ensures that technical expertise is brought to bear on performing government agency 

work, without the threat of overt partisan agendas driving day-to-day operations. 

Agency career employees remain accountable to politically-appointed officials, but 

those appointees, and supervisors who serve under them, may not take actions 

against career employees for misconduct or poor performance without at least providing some level of due process to the employee, including third-party review by 

neutral decisionmakers. Career employees are only supposed to be fired for good 

cause, and ‘‘good cause’’ means reasons supported by evidence. 

The Civil Service Reform Act (CSRA) of 1978 provides the modern-day basis for 

both selection of most career civil servants, and their protection from unwarranted 

personnel actions, including firings motivated by politics, bias, or other non-meritbased reasons. This CSRA protects the public from having their tax dollars used for 

hiring political partisans for non-political jobs, and helps ensure the efficient and 

effective governance of Federal agencies. 

The CSRA provides that employees may be removed for either misconduct or poor 

performance. The employee merely needs to be informed of his or her alleged deficiency and the reason that management proposes to take an action against him or 

her, whether it be firing, demotion, or suspension. 

Forty years of case law shows unambiguously that the CSRA does not give unfair 

advantages to Federal employees. Agencies prevail in 80%–90% of all cases at the 

MSPB administrative judge (AJ) level, and only about 18% of all AJ decisions are 

appealed to the full Board. AJs are upheld by the full MSPB in about 90% of all 

appealed cases. 

It is very important to note that following an agency’s adverse decision against 

an employee, the agency’s decision is automatically effected. For example, the employee is removed from the agency’s rolls the day of issuance of the decision or within several days following the decision. An employee removed by an agency receives 

no pay during the appeal process. 

During the debate on VA firing I have heard several lawmakers and others argue 

that it takes forever to get rid of a bad VA employee. This is simply untrue. In almost all cases, an employee may be fired within 30 days of the first notice. Even 

when an arbitration procedure under a collective bargaining agreement is invoked 

the agency can fire the employee after 30 days, and the employee receives no pay 

during the entire appeal or arbitration process. They are off the agency’s payroll. 

Attempts to portray removed employees appealing their removals as somehow 

lounging on the dole while their appeal is processed are simply untrue, and frankly 

dishonest. It doesn’t matter whether the appeal route chosen is the MSPB or arbitration. The employee receives no pay. Anyone who says otherwise is lying or ignorant or both. 

The importance of maintaining a nonpartisan, apolitical civil service in an increasingly partisan environment cannot be overstated. First, most Federal jobs require technical skills that cannot simply be obtained through non-merit based appointment. Second, career employees must be free to perform their work in accordance with objective professional standards. Those standards must remain the only 

basis for evaluating employee performance or misconduct. 

Bills like S. 1094 that decrease due process rights are ‘‘dog whistles’’ for politicizing the civil service, subjecting the Federal workforce to partisan or personal 

whims of supervisors and political appointees. Whatever lack of public confidence 

in government exists today will be magnified a hundredfold if all civil servants become de facto political appointees, serving at the whim of supervisors. And that is 

exactly what this horrible piece of legislation will do. 

Federal managers are already empowered under existing civil service laws to take 

appropriate action when employees are underperforming or engaged in misconduct. 

110 

There is no group who objects more to the continuing presence in the workplace of 

those who are not performing well or who engage in misconduct than fellow Federal 

employees. When someone doesn’t perform up to speed, it simply means more work 

for the rest of the people who do perform well. 

THE REAL ISSUE—AGENCY RELUCTANCE TO DOCUMENT EMPLOYEE PERFORMANCE IN

ACCORDANCE WITH DUE PROCESS PROCEDURES

In 1978, Congress enacted the CSRA, which is the modern-day statute governing 

civil service protections. In considering the law, Congress was specifically concerned 

about balancing employee rights and maintaining a non-partisan civil service with 

the need for management to deal with poor performers, or unacceptable conduct. 

To help agency managers deal with poor performers, the CSRA included a new 

section, Chapter 43, specifically addressing performance issues. As previously mentioned, this chapter set a lower standard of review of agency decisions with respect 

to performance issues among employees, and restricts the MSPB from modifying 

agency determinations regarding removal of poorly performing personnel. 

The GAO report previously mentioned (GAO–15–191) suggests many reasons why 

managers are sometimes reluctant to address performance issues. It also explores 

the many myths surrounding removal of poor performers. GAO’s report echoed findings of the MSPB in its reported entitled, ‘‘Addressing Poor Performers and the 

Law’’ (September 2009). The fact is that the laws governing the firing of poor performers, primarily Chapters 43 and 75 of title 5, are straightforward and not unduly 

burdensome to agencies. However, the due process procedures inherent in these 

laws require documentation between the supervisor and the employee that addresses the performance or conduct issues. This can be very difficult for some supervisors. 

Nevertheless, the law is clear, agency supervisors have many tools available to them 

to address performance issues, and to fire poor performers. 

CONTINUED DENIGRATION OF VA EMPLOYEES

As Members of this Committee are undoubtedly aware, continuing partisan attacks on the work of VA employees only fuels a self-reinforcing feedback loop. Employees know they are punching bags. Morale plummets as a continuous stream of 

anti-Federal worker proclamations, almost all false or highly exaggerated, emanate 

from elected or appointed leaders. Not long ago, the majority leader in the House 

of Representatives wrote an op-ed in the Wall Street Journal describing the ‘‘Federal bureaucracy’’ as the entity that ‘‘poses the greatest threat to America’s people, 

economy and Constitution.’’ Such criticism is not only false, but misleads people into 

thinking that career civil servants create statutes and regulations wholly apart from 

supervision by elected leaders and political appointees. Anyone who has worked in 

Federal service will tell you that employees follow direction, whether that direction 

comes from Congress, the President or other politically-appointed officials. In other 

words, career Federal workers respond to and implement duly enacted laws and 

policies. They do not create these policies. 

In all my years as an elected official of AFGE, I have never seen fit to denigrate 

my own staff. No leader should do that. There have been situations where employees have been disciplined or dismissed. But taking a battle axe to all employees and 

describing them in broad terms as ‘‘threats’’ to the American people heralds a new 

low in misinformation and outright dishonesty. As I told several news outlets at the 

time, ‘‘To call civil servants—one-third of whom are veterans—a ‘threat to America’s 

people, economy and Constitution’ is an insult to the men and women who dedicate 

their lives to the programs and services that benefit all Americans.’’ 

HOLDING THE VA ACCOUNTABLE

AFGE agrees that VA employees should be held accountable, and we also believe 

that includes VA managers, supervisors and political appointees. Statements implying that employees cannot be fired for months or years, or that fired employees remain on the government payroll for long periods while pursuing appeals following 

removal demand accountability every bit as much as an employee who is chronically 

late to work. 

These are dishonest statements and VA leadership should be held to account for 

this dishonesty. If they can’t fire, demote or properly discipline employees under 

current civil services rules, AFGE questions their competence to manage and lead 

such a large and complex organization. If they cannot hire for 45,000 health care 

vacancies, the same is true. They lack the competence to manage and lead the agency. Seeking the easy way out is not leadership. It is a politically-motivated response 

to fecklessness and incompetence. 

111 

Regardless of the outcome of the debate on this legislation, AFGE calls on this 

Committee to demand from the VA Secretary the following data on the number of 

employees fired, suspended or demoted (‘‘adverse actions’’) by the VA under applicable statutory or regulatory authority; more specifically the following: 

1. The number of employees proposed for and actually subject to adverse actions; 

2. The veterans status of employees subject to adverse actions; 

3. Locations, demographics and grades, and reasons for adverse actions; and 

4. Periods of time to effect adverse actions from date of first employee notice until 

final agency decision. 

We have yet to see this data, and we believe it will better inform the debate, not 

only as to whom the VA is disciplining, but also as to the level of competence within 

the agency in managing its personnel functions. We also believe that the Committee 

should focus more of its attention on the failure of the agency’s leadership to fill 

the reported 45,000 healthcare vacancies. Firing should not be your only concern. 

Hiring deserves at least as much attention. 

A BETTER WAY FORWARD

History is replete with examples of public service corrupted by unfettered, politically-based employment decisions. That’s why we continue to support a merit-based 

civil service system with appropriate due process, and checks and balances to ensure 

that both hiring and firing decisions be merit-based, and subject to meaningful 

review. 

AFGE strongly supports improvements in agency performance management systems, and we look forward to working with lawmakers and other interested stakeholders to see this carried-out. AFGE also supports better training of both VA supervisors and employees so that clear expectations are established, performance is 

measurable, and appropriate steps are taken to either remedy performance problems, or to remove poor performers from the workplace. 

AFGE vehemently opposes S. 1094, one of the worst pieces of legislation of the 

modern era. This legislation is an affront to hard working VA employees, more than 

a third of whom are veterans, directly lowers objective standards of review of proposed adverse actions, impinges on the union’s ability to defend meritorious cases, 

and unfairly penalizes employees for what could be trivial offenses. S. 1094 will corrupt and ultimately destroy the professional civil service and return the country to 

the days of the ‘‘spoils system’’ of government employment. 

CONCLUSION

Attacks on government employees and the civil service in general may make for 

good politics, but they make for bad government. AFGE is aware that dealing with 

problem employees is essential to sound public administration. But the vast majority of employees at the VA perform well. Agency systems and the laws and regulations governing employee performance are well-thought-out. The issue is not whether the laws or regulations governing the civil service are adequate, but whether 

agencies, including VA managers and supervisors have the tools, training and will 

to effectively implement current rules. The current mindset of the VA and supporters of this legislation in Congress seems to be that fast and easy firing of employees will magically solve the VA’s problems. Think again. This will cause far 

more problems than it will solve. 

I urge the Committee to reconsider the very dangerous and ultimately destructive 

personnel provisions of this firing bill. 

Thank you for your time and consideration and I will be happy to answer any 

questions you may have. 

Chairman ISAKSON. Thank you, Mr. Cox. I will start and take 5 

minutes, and then go to the Ranking Member for 5 minutes. 

Let me first of all, Mr. Atizado, in your introduction of yourself, 

or the introduction of your statement, you made the reference to 

your organization being the largest claims organization in the 

world. Is that correct? 

Mr. ATIZADO. In the Nation. I do not know about the world. 

Chairman ISAKSON. In the Nation. 

Mr. ATIZADO. Yes, sir. 

Chairman ISAKSON. The nation is big enough so we will take 

that. 

112 

Mr. ATIZADO. Yes, sir. 

Chairman ISAKSON. I think in your testimony, that caught my 

ear because that is what this appeals process is all about, making 

sure that people are treated right that are injured and have an appeal for a benefit and have a right to a benefit. I appreciated the 

time that you took to explain the effort you all went through to examine the appeals bill, and I appreciated the comments that you 

made. Would you thank your organization for that? 

Mr. ATIZADO. I am sorry. What was the question? 

Chairman ISAKSON. Be sure to thank your organization for that. 

Mr. ATIZADO. Definitely, sir. I will be honest. We have a lot more 

intelligent people than in our organization, that have worked handin-hand with the VA for this bill, so the thanks goes to the VA as 

well. 

Chairman ISAKSON. DAV is a great organization and our disabled 

veterans bear a scar for the rest of their lives, and we owe them 

a tremendous obligation. One of those obligations is to see to it that 

appeals of any claim that they have made are handled expeditiously and quickly. Now with this bill passing, hopefully in the 

next few weeks, they will be doing exactly that, and that will be 

a great day forward. 

Ms. Jaslow, thank you for mentioning Memorial Day. Unless I 

missed it, of all of us on the Committee that asked questions and 

made opening statements, and of all of you who made statements, 

yours was the one that made reference to not forgetting that next 

week is Memorial Day, or within a week or so is Memorial Day, 

which is a very important day for our country. 

I would just encourage all the Members—I cannot ask anybody 

or tell anybody to do anything, but I hope all the Committee Members will take time during the Memorial Day break to spend at 

least a little bit of time each day making sure our young people 

and our supporters and our voters understand the value that we 

have in the sacrifice that was made by the veterans of America 

who died so that we could have the liberty and the freedom that 

we are enjoying today. 

I always tell the story, when I make Memorial Day speeches, 

about Roy C. Irwin, a veteran from World War II, in 1944. When 

I went to the Margraten Cemetery in the Netherlands and walked 

down the rows of crosses, on row 24 I came to the last cross in the 

row, and I go to each one and look at the dates and the place and 

the name of the individual who is buried there. The last grave in 

row 24, Roy C. Irwin of New Jersey, died December 28, 1944, was 

interred. I stopped in my tracks for a second, took a deep breath, 

and realized that the day I was born was December 28, 1944, I was 

standing on the grave of an American soldier from New Jersey who 

died on the same day I was born, so that I could enjoy the life that 

I have enjoyed over the last 72 years. 

So, I think when all of us take a moment to talk about Memorial 

Day, we can talk about that sacrifice those soldiers made so that 

all of us who are here today, living and enjoying the freedoms of 

the United States of America, realize that, in large part and measure, that was paid for by singular American efforts who volunteered on our behalf, sacrificed their lives, and died for our freedom 

and our ability. 

113 

So, I just wanted to throw that in. I hope everybody will take a 

second to tell their own stories during that time. 

I want to thank the input that everybody has given to the appeals process. We are excited about trying to get something fixed 

that has been broken for a long time and I appreciate the VA’s attitude toward helping us to do that. I understand there is some concern and input on the accountability portion, but I think we have 

done a good job of hearing from everybody and putting together a 

piece of legislation that works for the Veterans Administration, the 

employees of the Veterans Administration, and the taxpayers of the 

United States of America, who pay for the Veterans Administration. I also appreciate the Ranking Member’s cooperation in working with all of us on all these pieces of legislation, to make them 

happen. 

Last, I will make a comment. Of all the legislation we have 

talked about today, everybody left out the one piece of legislation 

that a lot of people would have thought we would have mentioned 

first, but I think it shows the integrity of these organizations and 

the integrity of our vets and the integrity of the VA. But nobody 

mentioned the cost-of-living (COLA) increase that Senator Tester 

and I have put in, because they are taking it—that maybe we were 

going to make sure that happens. That shows we have got a good 

self-interest in part of all our people testifying here today. 

Ranking Member, would you like to ask a question? 

Senator TESTER. Yeah. Thank you, Johnny. I think we all have 

our Veterans Day memories of what has transpired and what that 

day is all about, and, quite frankly, what every day should be 

about. Every day should be Memorial Day for the people of this 

country. 

I will just pass along a little story. When I was a seventh-grader 

I got tabbed to be the VFW bugler, which was kind of a big deal 

because everybody in the whole damn town would show up for Memorial Day. They would do the roll call, and at that moment in 

time—this is the late ’60s so there were still a few World War I 

guys around. It was always an amazing experience. 

I will never forget what one of them said to a 13-year-old kid, 

which was that we never want to forget that war is a god-awful 

thing, and you do not put people in harm’s way without knowing 

what you are doing. You know, those are old World War II guys 

that knew what it was like. They knew getting your arm blown off 

was not something that was a pretty sight. Watching a guy die was 

not a pretty sight either. So, kind of interesting. 

So, I thank you guys for your service and the folks you represent. 

I do want to thank—a couple of thank yous—number 1, to all five 

of you for the people you represent. Thank you for being here and 

representing them. For the VA staff sticking around and hearing 

this panel, I want to thank you for that. Oftentimes we have two 

panels and the first panel gets up and leaves, and I know you have 

got work to do, but you stuck around and I want to acknowledge 

that. 

I know that Ms. Flanz is here. If there are any questions on 

MSPB, which Mr. Celli, you brought up, and their ability to make 

decisions, certainly utilize her. 

114 

I have got a couple of questions. Actually, I have got more than 

a couple. I want to start with Allison, with the IAVA. There was 

a GAO study that came out in December 2016, that found that 

across the VA system there was a significant lack of providers 

available for women veterans—I think you referenced it in your 

statement—as well as significant privacy issues. 

I am interested to know how seriously you think, or IAVA thinks, 

that the Veterans Administration is taking these findings seriously, 

and if you have seen any changes since that report was issued. 

Ms. JASLOW. Well, I certainly believe any person at the VA who 

I have talked to, and I believe many that you all have talked to, 

have very good intent. I think one of the reasons why we appreciate not only your leadership, sir, but why we are getting behind 

the Deborah Sampson Act is because, like many of the things at 

the VA, it is not happening fast enough. 

I believe there was somebody on the panel ahead of me who said 

that she was able to quote how many VA facilities have gynecologists, but that clearly means that not all of them do, which 

means that you have VA health care centers that adequately support men and ones that inadequately support women. 

We talk a lot about how the culture needs to be more welcoming, 

but one of the other barriers is women just do not think that they 

are going to get treated in the way that they need to be treated 

when they go into the VA. 

To answer your question, sir, we are still talking to members. 

You know, I already told my story of running into snags when I 

walk into the VA. More work needs to be done, and what we really 

need to do is jump-start it. I think that, you know, our approach 

is not only raising awareness of this issue. I really do not think 

that you get the fuel in the tank that you really need to get this 

done until people really feel like it is an issue, so that is the first 

step. But the other step we have outlined in the bill. 

Senator TESTER. OK. Very good. 

Adrian, with DAV, you issued a fine report a few years ago titled 

‘‘Women Veterans: A Long Journey Home.’’ It had some compelling 

facts and findings about the challenges unique to women veterans. 

Have you or anybody within your organization spoke to the VA 

about this report, and what kind of reception have you received? 

Mr. ATIZADO. Senator Tester, thank you for that question. VA 

has been more than welcoming of that report. If there is one thing 

I do find quite impressive about VA is that they are not shy about 

asking themselves what they are doing wrong and correcting those 

deficiencies. They are very much involved with trying to address 

those issues in our report, within their jurisdiction, because that 

report spans the entire Federal Government. We are trying to update that report now to reflect the abundant good work that VA 

has done. 

I just want to tag on to what Allison had mentioned. You know, 

this bill—these two bills are good for a start, I think. It is important that we have these policies in place, these artifacts that show 

that VA’s culture is, in fact, inclusive and respectful of women veterans and their service. 

Senator TESTER. In their testimony, VA said they did not support 

compiling a report—and this is for any of the VSOs—a report on 

115 

how they are doing on providing prosthetics to women veterans. We 

hear, quite frequently, the VA’s ability to provide gender-specific 

prosthetics is inconsistent, at best. 

It does not have to be all of you, but it can. Can you share some 

insights from your membership on women veterans where it comes 

to prosthetics? 

Mr. ATIZADO. So, if I can, for my colleagues, if you do not mind, 

we have a very active member of our organization and she had 

sought a prosthetic appliance from VA; at that time the only thing 

available was a male prosthetic. We thought that was falling a little short of what we expected of VA. They tried to make it work 

but clearly it did not. 

We think these reporting measures are critically important. Our 

testimony says, though, that these reports should include a little 

bit more personalized reporting: how women veterans perceive 

these services and these programs, whether it speaks to them and 

their needs, whether it is respectful of them, and whether they are 

satisfied. I think adding those would make this bill just a little bit 

stronger, sir. 

Senator TESTER. OK. Thank you. In closing, really quick, I just 

want to say that I met with about a dozen veterans, Vietnam veterans and veterans that have come back from the Middle East, up 

in Kalispell, MT, this last week, and we talked about many of these 

bills. I cannot tell you how committed they are to making the VA 

the best it can be and not privatizing the VA, which I think is important to be said here, because there are people around—I do not 

know around this dais, but maybe around this dais, certainly in the 

House, that want to privatize the VA. If we are not continually 

working to make the VA the best it can be, it will be privatized, 

and I do not want to see that happen, personally. 

So, we thank you for your advocacy, and we look forward to 

working with everybody to try to make the VA the best it can be. 

It is an important backstop for our veterans. 

Thank you, Mr. Chairman. 

Chairman ISAKSON. Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Mr. Chairman. Thank you all 

for being here and for all your tireless work for our veterans. If you 

were here earlier you may have heard my questions about the Veterans PEER Act, and I would like to reiterate them to you, without 

going through all the provisions which I am sure you know. I would 

like to know from you whether you think that these kinds of support specialists are necessary, whether they perform a function, 

and whether they ought to be an integral part of our mental health 

care service and primary care team for our veterans. 

Mr. CELLI. Well, I can tell you that The American Legion has 

long been a supporter of peer support. We find that it is the best 

way especially for veterans who are new to the VA system to become comfortable with the system and to integrate well. Incorporating them into the PACT model is really the right thing to do. 

I just do not think that there is any—we believe in it so much we 

actually passed a resolution specifically supporting it. 

Senator BLUMENTHAL. Thank you. I would welcome other 

comments. 

116 

Ms. KELEHER. The VFW has long been very supportive of expansion of peer support specialists, and as we said, we very, very adamantly support it, not just for gender-specific care but for mental 

health care and many other areas. It is something that we look forward to continuing to work on. 

Senator BLUMENTHAL. Great. 

Ms. JASLOW. I would be happy to chime in, sir. Specifically related to women, you know, I think something that I would encourage you to think about, as you are working within this chamber, 

if people do not feel like they can navigate the VA system, whether 

they are welcome at the VA, whether it is even a place that does 

not overwhelm them, they are not going to take advantage of no 

matter how great of care that you try to provide for them. 

So, simply having somebody, especially somebody who can help 

somebody through foreign territory, which, if you are a woman 

walking in there, not only is there for most of our generation a 

generational divide, but a gender divide. So, we are strongly supportive of it as well. 

Senator BLUMENTHAL. Great. Mr. Cox? 

Mr. COX. Senator Blumenthal, I think that peer support is really 

important, and also I think the greatest peer support is that at the 

VA, over one-third of the employees are veterans themselves. They 

are the shining star. They work there. They get their care there. 

They believe in it. They are committed to it. I see that committed 

staff every day as they find veterans that are struggling to maneuver the system, that, hey, they reach out, they share, even if they 

are in VHA, about VBA, and other benefits, and the coaching and 

mentoring. I think there is no bond greater than what you find 

amongst veterans, and I believe every one of the veteran service organizations would join with me in saying, you know, peer support, 

let us support it, but let us also fill those 45,000 vacancies at the 

VA so that every veteran gets all the care they fully deserve. 

Senator BLUMENTHAL. Well said, and points well taken. We tend 

to overlook the fact, all too often, that a vast number of the VA employees are veterans themselves, and they care more than anyone 

about keeping faith with our veterans. I think that peer support is 

extremely important and we should recognize, as all of you have 

said that veterans are often the best source of care for other veterans, because they tend to understand their brothers and sisters, 

and it is the reason why veterans want the VA health care system 

to continue to exist. I think of all the reasons that veterans support 

the VA health care system, that may include the best equipment, 

medicine, care, but it is also the fact that it is provided, often, by 

veterans, with other veterans at their side. 

I want to just say, finally, in the few seconds that I have left, 

I have been working very, very hard on this Appeals Improvement 

and Modernization Act of 2017. This backlog and delay in addressing claims by veterans—many, many of them justified and deserving—is a scandal for our Nation. The present backlog and delay is 

unacceptable, and I hope that you will join me in pursuing the bill, 

which is based on a framework that the VSOs have helped to devise. I want to give you credit for it because you have participated, 

along with experts and the VA itself, in the appeal process. It 

would consolidate the current appeals process into distinct lanes 

117 

that can be pursued more efficiently and effectively and fairly for 

our veterans. So, thank you for your help on it and I hope we can 

get it across the finish line. 

Thanks so much. Thank you, Mr. Chairman. 

Chairman ISAKSON. Thank you, Senator Blumenthal. I want to 

thank all our witnesses from the VSOs for your testimony today. 

Thank all your membership for their support in continuing with 

the Veterans Administration and this Committee’s work. I thank 

the VA employees who were here earlier. I think their comments 

made about the value of those employees cannot be overstated. 

They are a tremendous asset for our country. And as Mr. Cox said, 

in the VA I think about one-third of employees are veterans themselves, and it means a lot to them to make sure they are providing 

that service as veterans, to the veterans who have served this 

country. 

I appreciate all your testimony and input. We will leave the 

record open for 10 days, if there are additional submissions any of 

you may have. If there are no further questions, the Committee 

will stand adjourned. Thank you all for your attendance. 

[Whereupon, at 4:38 p.m., the Committee was adjourned.] 

RESPONSE TO POSTHEARING QUESTIONS SUBMITTED BY HON. BILL CASSIDY TO

JENNIFER S. LEE, M.D., DEPUTY UNDER SECRETARY FOR HEALTH FOR POLICY AND

SERVICES, VETERANS HEALTH ADMINISTRATION, U.S. DEPARTMENT OF VETERANS

AFFAIRS

In your prepared remarks, you note that the Veterans Administration would like 

to require the use of ISBT–128 for all biological implants. However, I have several 

concerns with this position, as noted below. Could you address these in turn? 

Question 1. The VA defines biological implants to include xenografts (animal-derived grafts) and not just those products of human origin. ISBT–128 (International 

Standard for Blood and Transplantation) is only suitable for products of human origin. How do you intend to track xenografts that are biological implants? What system will you use for those? 

Response. The VA does not intend to use ISBT–128 for all biological implants. 

Only those implants of human origin would be required to have a distinct identifier 

such as provided by ISBT–128. Currently, ISBT–128 is the only available identifier 

for this purpose. VA would accept a distinct identifier for HCT/P (Human Cell and 

Tissue Products) from any Food and Drug Administration (FDA) approved source. 

VA’s system will be robust enough to track any biologic implant including both 

allografts and xenografts. ISBT–128 will only be used for products of human origin. 

Non-human products will be able to use GS1 (Global Standard One), HIBCC 

(Health Industry Business Communications Council) or other FDA UDI (Universal 

Device Identifiers) as appropriate. 

Question 2. My understanding is that there are only 20 tissue processors within 

the U.S. that produce Human Cells, Tissues, and Cellular and Tissue-Based Products (HCT/P’s) regulated as devices. According to a recent survey, of those 20, only 

2 currently use ISBT–128. Have you checked with your vendors to ensure that you 

could have access to HCT/Ps if you move forward with your proposal to limit your 

issuing agency only to ISBT–128? 

Response. VA has checked with its human tissue contractors and has been assured that they can provide ISBT–128 labeled tissue. Those who currently do not 

use ISBT–128, have indicated that they will be able to do so within a year if requested, at a minimal cost. As a result, VA intends to allow for up to a year for 

a vendor to come into compliance when it negotiates its contracts if they are not 

already using ISBT–128. It should be emphasized that a distinct identifier like 

ISBT–128 is essential to prevent the entry of prohibited tissue sources into the VA 

supply chain. It allows for the readily auditable trail necessary to ensure that only 

properly sourced tissue is in use by VA; the underlying intent expressed in the 

legislation. 

While mechanical implants are regulated differently than human or animal derived implants, they could use the same tracking system for blood and biologics. A 

118 

common system would also be useful with the emergence of composite devices which 

combine both mechanical and biologic components. 

Question 3. Obviously, track and trace efforts should be improved for all implants—not just biological ones. What efforts are you doing to maintain traceability 

in those areas? My understanding is that the vast majority of medical device companies within the U.S. are opting to use GS1 (barcodes) for labeling their devices. Does 

the VA have a process for utilizing GS1? 

Response. VA does not have a process for utilizing GS1 at this time. Prosthetic 

& Sensory Aid Services is currently serving as a member of a VA cross-functional 

workgroup led by the Office of Strategic Integration (OSI) Veterans Engineering Resource Center (VERC) for implant tracking. This workgroup will identify and develop processes and process requirements that will meet all requirements established by FDA, The Joint Commission, and Congress for the tracking of implantable 

devices by September 30, 2017. 

RESPONSE TO POSTHEARING QUESTIONS SUBMITTED BY HON. MAZIE K. HIRONO TO

JENNIFER S. LEE, M.D., DEPUTY UNDER SECRETARY FOR HEALTH FOR POLICY AND

SERVICES, VETERANS HEALTH ADMINISTRATION, U.S. DEPARTMENT OF VETERANS

AFFAIRS

S. 899 VA VETERAN TRANSITION IMPROVEMENT ACT

Question 4. Deputy Under Secretary Lee, could you comment on the VA’s current 

policies related to paid medical leave for your disabled veteran employees and how 

S. 899 would improve on that? 

Response. Current disabled Veteran employees employed in the Veterans Health 

Administration (VHA) may request and use leave for medical purposes in accordance with established agency leave procedures. The proposal would require VA to 

establish a leave transfer program for the benefit of health care professionals appointed under 38 U.S.C. § 7401(1) and authorize the establishment of a leave bank 

program for the benefit of such health care providers. Inclusion of this provision 

would ensure that disabled Veteran employees performing health care services in 

Title 38 occupations have the same opportunity to schedule medical appointments 

and receive medical care related to their disability without being charged leave as 

employees in Title 5 and Hybrid Title 38 occupations. 

According to January 2017 data from the VA, there are over 13,000 Title 38 critical medical vacancies in the positions not currently subject to the Wounded Warrior 

Federal Leave Act (these are physicians, physician assistants, registered nurses, 

chiropractors, podiatrists, optometrists, dentists, and expanded—function dental 

auxiliaries). 

Question 5. Does VA have a goal to hire veterans for these positions and if so, 

could you comment on the impact of the additional paid medical leave provided in 

S. 899 on efforts hire disabled veterans? 

Response. VHA continues to encourage the hiring of Veterans for healthcare occupations, as well as other administrative, technical, professional, and clerical occupations. When filling Title 38 positions, VHA also needs to ensure the best qualified 

individuals are hired to meet the health care needs of our Veteran patients, as well 

as support our health care mission. The proposed legislation may assist in the hiring of Veterans for Title 38 occupations. Extending the current provisions of 5 

United States Code (U.S.C.) section 6329, Disabled Veteran Leave, to Title 38 employees appointed under 38 U.S.C. § 7401(1) would provide an opportunity for our 

disabled Veteran employees performing health care services in Title 38 occupations 

to have the same opportunity to schedule medical appointments and receive medical 

care related to their disability without being charged leave as employees in Title 5 

and Hybrid Title 38 occupations. This will provide disabled Veteran employees an 

opportunity to undergo medical treatments for their disabilities without having to 

consider their leave balances or work-life issues to obtain such services outside of 

scheduled work hours. Although the disabled Veteran employees would be eligible 

for paid medical leave, the proposal is considered cost neutral as it will not increase 

VHA full-time employee equivalent levels or salaries of the employees. 

S. 1094, DEPARTMENT OF VETERANS AFFAIRS ACCOUNTABILITY AND WHISTLEBLOWER

PROTECTION ACT OF 2017

We all agree that more can be done to increase accountability for those at the VA 

who have betrayed the trust they have been given to serve our Nation’s veterans. 

While there are some good provisions in S. 1094, I am deeply concerned on the 

implications of the bill’s provision lowering the evidentiary standard for misconduct 

119 

removals from a ‘‘preponderance of the evidence’’ standard (meaning more than 50% 

of the evidence) to a ‘‘substantial evidence’’ standard (meaning the agency only 

needs, among other things, more than a ‘‘mere scintilla of the evidence’’) as the Supreme Court defined in its 1971 decision in Richardson v. Perales. This new standard would mean that even when the majority of the evidence supports the employee, 

he/she will lose. 

Question 6. Deputy Under Secretary Lee, can you explain how the VA can ensure 

due process for its employees under this bill when it says if the majority of the evidence supports the employee, he/she will lose? 

Response. Employees at VA are entitled to constitutional due process and will 

continue to be entitled to constitutional due process even if S. 1094 is enacted into 

law. A change to the burden of proof from preponderant evidence to substantial evidence does not change an employee’s right to constitutional due process. 

At its simplest, constitutional due process requires that an individual receive notice of an action affecting the individual’s interests and a reasonable opportunity to 

contest that action. Sometimes the notice and opportunity to contest must precede 

the action (pre-deprivation); sometimes it may come after (post-deprivation), in the 

form of a post-decisional appeal, whether to a third-party forum like the Merit Systems Protection Board (MSPB) or to the courts. Under S. 1094, this constitutional 

due process will not be adversely impacted. Under S. 1094, employees will continue 

to receive notice of a proposed disciplinary action, the ability to respond befsore a 

decision is made, and the ability to go to the MSPB or a court. 

With regard to the burden of proof, a substantial evidence standard does not 

mean that an employee will lose, even if the majority of the evidence supports them. 

The MSPB defines ‘‘substantial evidence,’’ the standard proposed under S. 1094, as 

the ‘‘degree of relevant evidence that a reasonable person, considering the record as 

a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.’’ 5 CFR § 1201.4(p). Substantial evidence is ‘‘a lower 

standard of proof than preponderance of the evidence.’’ Id. 

The MSPB’s definition of ‘‘substantial evidence’’ is echoed in Richardson v. 

Perales, a case that pertains to a social security disability claim rather than the 

Federal civil service. Richardson v. Perales, 402 U.S. 389, 401 (1971) citing Consol. 

Edison Co. v. Nat’l Labor Relations Bd., 305 U.S. 197, 229 (1938) (substantial evidence is ‘‘more than a mere scintilla [of evidence and it] means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion’’). But, 

the MSPB further explains that, in the Federal civil service context, substantial evidence ‘‘obliges the presiding official to determine only whether, in light of the relevant and credible evidence[,] a reasonable person could agree with the agency’s decision (even though other reasonable persons including the presiding official might 

disagree with that decision). Parker v. Def. Logistics Agency, 1 M.S.P.R. 505, 531 

(M.S.P.B. 1980). 

The MSPB currently uses the substantial evidence standard to adjudicate agency 

actions taken based on performance. See 5 U.S.C. § 7701(c)(1); 5 CFR 

§ 1201.56(b)(1)(i). Even with this lower burden of proof, there are numerous cases 

where the MSPB and its reviewing court have determined that the agency failed 

to meet this lower burden of proof. See, e.g., Parkinson v. Dep’t of Justice, 815 F.3d 

757, 766 (Fed. Cir. 2016); Thompson v. Dep’t of the Army, 122 M.S.P.R. 372, 381– 

82 (M.S.P.B. 2015); Smith v. Dep’t of Veterans Affairs, 59 M.S.P.R. 340, 342–43 

(M.S.P.B. 1993); Cranwill v. Dep’t of Veterans Affairs, 52 M.S.P.R. 610, 616 

(M.S.P.B. 1992). Consequently, it is doubtful that, even with a lower evidentiary 

burden, the MSPB would always agree with an action taken by VA or that, even 

if the majority of the evidence supports an employee, he or she will not succeed in 

a disciplinary appeal before the MSPB. 

RESPONSE TO POSTHEARING QUESTIONS SUBMITTED BY HON. MAZIE K. HIRONO TO

J. DAVID COX, SR., NATIONAL PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL–CIO 

S. 1094, DEPARTMENT OF VETERANS AFFAIRS ACCOUNTABILITY AND WHISTLEBLOWER

PROTECTION ACT OF 2017

Introduction: President Cox, in your testimony you reference the unworkable 

timeframes for appeals using the Grievance and Arbitration Procedures in the Collective Bargaining Agreement. 

Question 1. Can you explain how the short timeframes would threaten the reliability of the collective bargaining process? 

120 

Question 2. Can you share with the Committee any real-life examples of how this 

would impact your rank and file employees and possibly even reverse some removal 

decisions that were in favor of the employee due to the lowering of the evidentiary 

standard? 

[Responses were not received within the Committee’s timeframe for publication.] 

(121) 

A P P E N D I X 

PREPARED STATEMENT OF HON. THOM TILLIS, U.S. SENATOR FROM NORTH CAROLINA

Please accept my apologies for not being here this afternoon—I was running in 

the Capitol Challenge 5K this morning and unfortunately was not able to finish the 

race, even though I was well on my way to easily eclipsing my time from last year. 

I just want to briefly comment on two bills on the agenda: 

• On the Veterans Education Priority Enrollment Act—I appreciate VA’s support 

and the valuable feedback we received from all the stakeholders. I understand some 

of the compliance concerns that were raised and I look forward to discussing with 

Senator Brown to identify the best path forward that will allow flexibility for schools 

that are already setting the gold standard while ensuring that all veterans have the 

opportunity to use their GI bill to the fullest extent. 

• On the State Veterans Home Adult Day Health Care Improvement Act—I 

thank Senator Hatch for his leadership and I look forward to engaging with VA to 

address their recommendations that would improve the bill. Together, we can empower veterans to receive daily care while living and spending more time at home 

with their families. 

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LETTER FROM MICHAEL V. REILLY, EXECUTIVE DIRECTOR, AMERICAN ASSOCIATION OF

COLLEGIATE REGISTRARS AND ADMISSIONS OFFICERS


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We are also concemed about the precedent that such a mandate would set. Such a measure could 

easily be applied to other categories of students and, more importantly, have adverse effects on 

students that truly need priority registration most. For example, one member institution with state 

prioritization mandate a lready in place reported that their institution watched their priority 

registration group balloon to include approximately 15 percent of their total student population, 

rapidly losing the imended benefit of priority registration. 

Undue Burden on Institutions 

Secondly, we arc concemcd with the possible undue burdens placed on institutions that do not 

have priority registration systems and/or policies in place. While realizing it is not the intent of 

this bill to require institutions to create such a system, we worry that those without one will 

inadvertently lose their military friendly status. 

AACRAO is committed to and will continue to pursue the best services for veteran students. Our 

members, however, fail to see any evidence that veterans arc more frequently closed out of the 

courses they require to graduate due to lack of priority registration. However well-intended, 

S.764, seeks to solve a problem that docs not seem to exist. 

I hope that these concerns with S.764 arc well received and highlight some of the possible 

unintended consequences of the proposed legislation. Thank you for the opportunity to work with 

the Senate Committee on Veterans' Affairs in crafting legislation to help our veteran population 

enroll ed in institutions of higher education. We look forward to continue to work collaboratively 

with you in the future. 

Sincerely, 

_,.-,.vr.rv,t ~ ...... / 

Michael V. Reilly 

Executive Director 

American Association of Collegiate Registrars and Admissions Officers (AACRAO) 

Advancmg Global H1gher Education 
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LETTER FROM MOLLY CORBETT BROAD, PRESIDENT, AMERICAN COUNCIL

ON EDUCATION


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Veterans Education Priority Enrollment Act Letter 

May 16,2017 

Page2 

Colleges and universities are committed to helping veterans succeed in mreting their higher 

education goals. Institutions have implemented a number of strategies to support veterans tailored 

to meet the needs of their specific campuses and student populations. While some campuses have 

implemented veteran-p1iority registration policies, this may not be the best strategy for every 

campus. 

We strongly support efforts to help veterans succeed. We recommend reframing the bill to 

encourage institutions to consider implementing priority policies rather than mandating them and 

allow institutions the flexibility to find solutions that work best for their campuses. We believe this 

change would go a long way toward addressing our concerns. It also has the added benefit of 

ensuring that the bill would not conflict with existing state laws on the subject. 

Thank you for your work to support student veterans. We welcome the opportunity to work with 

you as the legislation moves forward. 

Sincerely, 

Molly Corbett Broad 

President 

On behalf of: 

American Association of Collegiate Registrars and Admissions Officers 

American Association of Community Colleges 

American Association of State Colleges and Universities 

American Council on Education 

Association of American Universities 

Association of Public and Land-grant Universities 

Hispanic Association of Colleges and Universities 

National Association of College and University Business Officers 

National Association of Independent Colleges and Universities 

MCB/Idw 
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PREPARED STATEMENT OF AMY WEBB, LEGISLATIVE POLICY ADVISOR, AMVETS 


517apAMV1.eps

• AMVETS ~ ;i'J'4ZI!# 

:.I.)) 

STATEMENT FOR THE RECORD 

AMY WEBB 

AMVETS LEGISLATIVE POLICY ADVISOR 

BEFORE THE 

UNITED STATES SENATE 

COMMITTEE ON VETERANS' AFFAIRS 

MAY 17, 2017 

Chairman Isakson, Ranking Member Tester, and distinguished Members of the Conm1ittee, 

Since 1944, AMVETS (American Veterans) has been one of the largest congressionallychartered veterans' service organi zations in the United States and includes members from each 

branch of the military, including the National Guard, Reserves, and Merchant Marine. We 

provide support for the active military and all veterans in procuring their earned entitlements, 

and appreciate the opportunity to present our views on the pending legislation being considered 

today. 

S. 23, Biological Implant Tracking and Veteran Safety Act of 2017 

AMVETS supports this bill, which directs the Department of Veterans Affairs (VA) to either 

adopt the unique device identification system developed for medical devices by the Food and 

Drug Administration (FDA), or implement a comparable system for identifying biological 

implants intended for use in VA medical faci lities. It permits a vendor to use any issuing agency 

that is accredited by the FDA and to implement inventory controls compatible with a tracking 

system so patients who have received a biological implant in a VA medical facility subject to an 

FDA recall can be appropriately notified. If the biological implant tracking system is not 

operational within 180 days after date of enactment, the VA is required to report monthly to 

Congress with an explanation as to the delay, until tbe system is operational. 

The VA swill procure implants under General Services Administration Federal Supply Schedules 

unless they are not available under the schedules; accommodate reasonable vendor requests to 

perform outreach efforts to educate VA medical professionals about the use and effectiveness of 

implants; and procure biological implants that are unavailable under such schedules using 

competitive procedures in accordance with the Federal Acquisition Regulation. Any VA 

employee responsible for making biological implant procurements that shows an intent to avoid 

or disregard the requirements of this bill will be ineligible to hold a certificate of appointment as 

a contracting officer, or to serve as the representative of an ordering officer, contracting officer, 
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or purchase card holder. Certain biological implants may be temporarily procured by the VA 

without relabeling under the standard identification system. 

S. 112, Creating a Reliable Environment for Veterans' Dependents Act 

This bill authorizes per diem payments, under the comprehensive service programs for homeless 

veterans, to furnish care to dependents of homeless veterans. AM VETS supports this measure, 

with the stipulation that resources be made available for funding the payments. 

S. 324, State Veterans Home Adult Day Health Care Improvement Act of 2017 

AM VETS supports this bill, which directs the Department of Veterans Affairs (VA) to enter into 

an agreement or a contract with each state home to pay for adult day health care for veterans who 

need the care e ither specifically for a service-connected disability, or, if not specifically for one, 

the veteran must have a service-connected disability rated 70% or more. 

Payment under each agreement or contract between the VA and a state home must equal 65 

percent of the payment that the VA would otherwise pay to the state home if the veteran were 

receiving nursing home care. 

The adult day health care services provided include the coordination of physician services, dental 

services, and the administration of dnags. 

S. 543, Performance Accountability and Contractor Transpa rency Act of 2017 

AM VETS supports this bill which improves oversight of Department of Veterans Affairs (VA) 

contracts for services by ensuri ng that each contract includes: 

• Measurable metrics to detennine the performance of the provider of the service, relating 

to cost, schedule, and fulfillment of contract requirements. 

• A plan of action and milestones for the provision of the service, with estimates of the 

dates on which significant portions of the contract will be completed and a description of 

the resources the service provider will assign to provide the service. 

• Safeguards to ensure that the service provided meets a minimum threshold of quality 

determined by the Secretary, including authority for the Secretary to levy a financial 

penalty upon the service provider if the service provided fails to meet such threshold. 

• Measurable metrics relating to the use of award or incentive fees. 

In each contract for a service of more than $100,000,000, the Secretary will ensure the contract 

includes specific metric-based requirements. 

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S. 591, Military and Veteran Caregivers Services Improvement Act of2017 

This bill expands eligibility for the Department of Veterans Affairs (VA) Program of 

Comprehensive Assistance for Family Caregivers to members of the Armed Forces or veterans 

that have a serious injury or illness as a result of service prior to September II, 200 I. Services to 

caregivers of veterans under the program arc expanded to include child care services or a 

monthly stipend to cover child care if VA cannot provide it, and financ ial planning and legal 

services related to the needs of the covered veteran and their caregivers. Peer-oriented group 

activities are also included in the expansion of respite care. 

The expanded support services will tcnninate on October I, 2022, except that any caregiver 

activities carried out on September 30, 2022, may continue on or after October I, 2022. 

The bill authorizes the transfer of a maximum of36 months ofpost-911 1 education assistance to 

a spouse or children of seriously injured veterans in need of family caregiver services, without 

regard to length-of-service requirements. 

Additionally, the bill requires the Office of Personnel Management to allow flexible work 

schedules or telework to covered federal employees who are caregivers of veterans. 

The Public Health Service Act is amended to designate a veteran participating in the program of 

comprehensive assistance for family caregivers as an adult with a special need for purposes of 

the lifespan respite care program. An interagency working group is established in the executive 

branch to review and report on policies relating to the caregivers of veterans and members of the 

Armed Forces. Finally, this bill requires a longitudinal study on seriously injured or ill post-9/ 11 

veterans, including mental health injuries, and those who arc their caregivers. The study 

parameters include quantifying the veterans' health and employment status and the potential 

impact that having a caregiver has in those areas; as well as the financial status and needs of the 

veteran and the use of VA benefits by the veteran. The initial report would be due to Congress by 

October I, 2021, and then every four years after submission of the first report. 

While AMVETS has concerns about the transferability of the post-9111 education benefits, we 

support this measure. Since VA is currently fine tuning the Program of Comprehensive 

Assistance for Family Caregivers, we are encouraged that the result will enable the program to 

be expanded with greater case. 

S. 609, Chiropractic Care Available to All Veterans Act of 20 17 

AMVETS supports this bill, which amends the Department of Veterans Affairs (VA) Health 

Care Programs Enhancement Act of2001to require chiropractic care and services to veterans at 

all VA medical centers and clinics. This must be implemented in at least 75 VA medical centers 

by December 3 1, 20 18; with fu ll implementation required by December 31, 2020. Chiropractic 

services will also be included under VA medical, rehabilitative, and preventive health care 

services. 

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S. 681, Deborah Sampson Act 

This bill aims to improve the benefits and services provided by the Department of Veterans 

Affairs (VA) to women veterans. Title I, Sections I 0 I, I 02 and I 03 require a pilot program on 

peer-to-peer assistance for women veterans; expand the capabilities of the VA Women Veterans 

Calls Center to include texting; and provide reintegration and readjustment services to veterans 

and family members in a group retreat settings. AM VETS supports Title I. 

Title I I, Sections 20 l and 20 I requires VA to partner with at least one nongovernmental 

organization to provide legal services to women veterans focusing on their top ten unmet needs 

outlined in the most recent Community Homelessness Assessment, Local Education and 

Networking Groups (CHALENG) for veterans' survey; and funds are appropriated through the 

end of fiscal year 20 18 for the supportive services for veteran families grant program to support 

organizations that focus on aiding women veterans and their fami lies. AM VETS supports Title 

II. 

Title Ill, Sections 30 1 and 302 extend the eligibility of newborn care from seven to 14 days; and 

clarifies that medically necessary travel in connection with health care provided to newborns will 

come from VA Medical Services appropriations. AMVETS supports Title Ill. 

Title IV is related to eliminating barriers that women veterans face when accessing VA health 

care. Section 40 1 retrofits and modifies VA medical facilities to support the actual provision of 

care to women; Section 402 requires that all VA medical faci lities are staffed with at least one 

women's health primary care provider, who would be asked to tra in other health care providers 

on the needs of women veterans, "to the extent possible." This position would not be required to 

be full time. Section 403 would require that each VA medical center be staffed with not only a 

Women Veteran Program Manager but also a Women Veteran Program Ombudsman. Section 

404 provides $1,000,000 annually for the VA Women Veterans Health Care Mini-Residency 

Program to provide participation for primary and emergency care clinicians. AM VETS supports 

Title IV. 

Title V requires enhanced data collection and reporting on veterans. Section 50 I provides for 

collection and ana lyzation of data for each VA program that offers a service or benefit to 

veterans, to be extrapolated by sex and minority status, and for the data to be published, unless 

the Secretary determines that would undermine the anonymity of a veteran. Section 502 requires 

a report on the availability of prosthetics for women veterans. Section 503 requires that VA 

survey its current websites and information resources on the day prior to enactment, and then 

publish a website to serve as a centralized source for women veterans to obtain information 

about VA services available to them. Section 504 is a Sense of Congress on changing the VA 

motto, "To care for him who shall have borne the bailie," to be more inclusive. AMVETS 

supports Sections 50 I, 502, and 503. AM VETS does not support the Sense of Congress on 

changing the motto of the Department of Veterans Affairs. VA has expanded its mission to: "To 

fulfl/1 President Lincoln:~ promise 'To care for him who shall have borne the bailie, and for his 

widow, and his orphan' by serving and honoring the men and women who are America's 

Veterans. " While we wholeheartedly support inclusion and respecting given pronouns, in this 

situation the histori cal relevance and non-sexist intention takes precedence. 

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S. 764, Veterans Education Priority Enrollment Act of 2017 

AM VETS supports this bill which requires that educational institutions that offer a priority 

enrollment system allowing certain students to enroll in courses earlier than other students, must 

inc lude veterans, members of the Armed Forces serving on active duty or a member of a reserve 

component (inc luding the National Guard); dependents who have had educational benefits 

transferred; or any other individual using such assistance if they are part of an educational 

assistance program provided in title 38 under chapters 30, 31, 32, 33, or 35; or chapters 1606 or 

1607 of title 10. 

S. 784, Veterans' Compensation Cost-of-Living Adjustment Act of2017 

The COLA Act would provide for an increase in the rates of compensation for veterans with 

service-connected disabilities and the rates of dependency and indemnity compensation for the 

survivors of certain disabled veterans effective December I, 20 17. 

The dollar amounts to be increased would be wartime disability compensation, additional 

compensation for dependents, c lothing a llowance, dependency and indemnity compensation to 

surviving spouse, and to children. 

Each dollar amount would be increased by the same percentage as the Social Security Act, 

effective December I, 20 17. 

The Secretary of Veterans Affairs would publish the amounts specified as increased in the 

Federal Register no later than the date on which those pertaining to the Social Security Act arc 

required to be published. 

AMVETS supports this COLA Act, and encourages its swift passage. 

S. 804, Women Veterans Access to Quality Care Act 

AM VETS supports this bill which directs the Department of Veterans Affairs (VA) to establish 

standards to ensure that all VA medical facilities have the structural characteristics necessary to 

adequately meet the gender-specific health care needs of veterans, including privacy, safety, and 

dignity. The established standards must be integrated into its prioritization methodology with 

respect to requests for funding major medical facility projects and major medical faci lity leases, 

and there will be a report on implementation of these standards and which facilities meet or fail 

to meet them. 

The VA will also be required to establish policies for environment of care inspections at VA 

medical centers (VAMC), to include alignment of inspection requirements with the Veterans 

Health Administration women's health handbook, and certify that policies have been finalized 

and distributed to all VAMCs. 

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The VA will use health outcomes for women veterans receiving VA health care in evaluating the 

perfom1ance of VA medical center directors; publicly publish this information on its website and 

ensure that every VA medical center has a fu ll-time obstetrician-gynecologist. VA will also 

implement a pilot program in at least three Veterans Integrated Service Networks in order to 

increase the number of residency program positions and graduate medical education positions for 

obstetrician gynecologists at VA medical facilities. 

The VA must develop procedures to share electronic information that includes military service 

and separation data, personal email addresses and telephone numbers, and mailing addresses of 

veterans with state veterans agencies in order to enhance assistance and benefits to women 

veterans. A veteran may elect to opt-out of this. 

The bill requires the VA to carry out an examination of whether VA medical centers can meet 

the health care needs of women veterans by studying: 

• The wait times for women veterans for appointments for the receipt of hospital care, 

medical services, or other health care. 

• Whether the medical center has a clinic that specializes in the treatment of women. 

• The number of fu ll-time obstetrician-gynecologists. 

• The number of health professionals trained in women's health. 

• The extent to which the medical center conducts regular training on issues specific to 

women's health; and sensitivity training. 

• The differences in hea lth outcomes between men and women. 

• The security and privacy measures used in registration, clinical, and diagnostic areas. 

• The availability of gender-specific equipment or procedures. 

• The extent to which the Center for Women Veterans of the Department advises and 

engages with the medical center with respect to providing hea lth care to women veterans. 

• The extent to which the medical center implements directives from the Center for 

Women Veterans. 

• The outreach conducted by the Department to women veterans in the community served 

by the medical center. 

• The collaboration between the medical center and non-Department entities, including 

veterans service organizations, to meet the health care needs of women veterans. 

• The effectiveness of Patient Aligned Care Teams in meeting the health care needs of 

women veterans. 

S. 899, Depa rtment of Vetera ns Affairs Veter an Tr ansition Improvement Act 

AMVETS supports this measure which ensures that veterans with a disability rating of30 

percent or higher who are hired by the VA in critical medical positions can access additional paid 

sick leave during their first year on the job for the purposes of receiving medical care related to 

their service-connected condition. 

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S. 1024, Veter ans Appeals Improvement and Modernization Act of2017 

If passed, this measure will improve the lives of hundreds of thousands of veterans stalled and 

stuck in the broken appeals process. AM VETS is pleased that this bill addresses the input of a 

variety of stakeholders; that it protects the effective date of a benefits award; and that it further 

refines and improves the process to accomplish in an average of 125 days what is currently 

taking up to l ,825 days (5 years). AM VETS fully supports this important piece of legislation. 

Draft Bill, Ser ving our Rural Veterans Act (Sullivan, Tester) 

This measure notes the Sense of Congress that the Department of Veterans Affairs (VA) relics 

on agreements with the Indian Health Services and tribal health organizations to serve native and 

non-native veteran populations, especially in rural areas of the United States due to limited VA 

infrastructure or personnel. 

This bill authorizes payments by VA for costs associated with training and supervision of 

medical residents and intems at non-VA facil ities that are operated by an Indian tribe, tribal 

organization, or the Indian Health Service. It a lso includes federally-qualified health centers. 

It requires the Secretary of VA to carry out a pilot program to establish or affiliate with residency 

programs at facilities operated by Indian tribes, triba l organizations, and the Indian Health 

Service. AMVETS has a National Resolution related to rural veterans' health care, and supp011s 

passage of this bill. 

Draft Bill, Veteran Partners' Efforts to Enhance Reintegr ation Act (Blumenthal) 

The PEER Act would establish a peer specialist program in patient a ligned care teams (PACTs) 

at medical centers of the Department of Veterans Affairs (VA) to promote the use and 

integration of mental health services in a primary care setting. This would occur in at least ten 

VA medical centers within 180 days after date of enactment. Within two years of enactment peer 

specialists in PACTs would be present in at least twenty-five VA medica l centers. 

The selection of medical centers would represent a balance of geographic locations; at least five 

medical centers that specialize in polytrauma and at least ten that do not; those in mra l and 

undcrserved areas; and those not near an active duty military installation. 

Each location selected would ensure that the needs of women veterans were specifica lly 

considered and addressed, and female peer specialists would be included in the program. 

Within 180 days of enactment, and at least once every following 180 days until the program was 

fully implemented, the Secretary would submit a report to Congress deta iling findings, 

conclusions, and an assessment of the benefits to veterans and their family members. Within 180 

days of the last location being selected, the Secretary would submit an additiona l report to 

Congress containing recommendations on the feasibil ity and advisability of expanding the 

program to additional locations. 

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Peer specialists are noted for being engaged in their own recovery, and who provide peer support 

services to others engaged in mental health treatment. AM VETS supports the integration of 

mental health services into primary care, and the patient-centric approach of the PACT model of 

care. Peer Specialist delivered interventions have been shown to improve patient activation in 

multiple studies. It is a lso important that women veterans receive access to care that specifically 

addresses their needs. 

AM VETS has a National Resolution on Mental Health Care Services and supports the PEER 

Act, but notes that in August 20 14, the White House issued an Executive Action mandating that 

twenty-five VA medical centers place Peer Specialists on Primary Care Teams. An update from 

VA 's Office of Research and Development, in collaboration with the National Center for Health 

Promotion and Disease Prevention, shows that the, "Evaluation of Peer Specialists on VA 

PACTs (Peers on PACT)" officially began in January 2016, final data is proj ected to be collected 

in January 201 8, and in September 20 19 the study and findings are expected to be complete. 

8 
134 

PREPARED STATEMENT OF LAUREN AUGUSTINE, DIRECTOR, GOVERNMENT RELATIONS, GOT YOUR 6 

Bill Num. Bill Name or Subject Sponsor IAVA Position 

S. 290 Increasing the Department of Veterans Affairs Accountability 

to Veterans Act of 2015 Sen. Moran Supports 

S. 23 Biological Implant Tracking and Veteran Safety Act Sen. Cassidy (R-LA) No Position 

S. 112 Creating a Reliable Environment for Veterans’ Dependents Act Sen. Heller (R-NV) Support 

S. 324 State Veterans Home Adult Health Care Improvement Act Sen. Hatch (R-UT) No Position 

S. 543 Performance Accountability and Contractor Transparency Act Sen. Tester (D-MT) No Position 

S. 591 Military and Veteran Caregivers Services Improvements Act Sen. Murray(D-WA) Support 

S. 609 Chiropractic Care Available to All Veterans Act Sen. Moran (R-KS) No Position 

S. 681 Deborah Sampson Act Sen. Tester (D-MT) Support 

S. 764 Veterans Education Priority Enrollment Act Sen. Brown (D-OH) No Position 

S. 784 Veterans’ COLA Act Sen. Isakson (R-GA) No Position 

S. 804 Women Veterans Access to Quality Care Act Sen. Heller (R-NV) Support 

S. 899 Veteran Transition Improvement Act Sen. Hirono (D-HI) No Position 

S. 1024 Veterans Appeals Improvement and Modernization Act Sen. Isakson (R-GA) Support 

S. 1094 Accountability and Whistleblower Protection Act Sen. Rubio (R-FL) Support 

Draft Serving our Rural Veterans Act Sen. Sullivan (R-AK) Support 

Draft Veteran Partners’ Efforts to Enhance Reintegration Act Sen. Blumenthal (D-CT) Support 

CHAIRMAN ISAKSON, RANKING MEMBER TESTER AND DISTINGUISHED MEMBERS OF

THE COMMITTEE, On behalf of Got Your 6, I would like to extend our gratitude for 

the opportunity to share our views regarding several of these pieces of legislation. 

The mission of Got Your 6 is to empower veterans to lead a resurgence of community across the country. Got Your 6 believes, and our research confirms, veterans 

are leaders, team builders, and problem solvers who have the unique potential to 

strengthen communities across the country. As a coalition, Got Your 6 works to integrate these perspectives into popular culture, engage veterans and civilians together 

to foster understanding, drive veteran empowerment policy, and empower veterans 

to lead in their communities. 

This month, we celebrated the five-year anniversary of Got Your 6. Formed out 

of Hollywood as a movement to more accurately portray veterans in film and television, Got Your 6 has since gone on to lead the veteran empowerment movement 

by spearheading and publishing research, which proves veterans are civic assets, 

granting out more than $6 million dollars to our best-in-class nonprofit partners, 

and leading an effort to change the national narrative around veterans as ‘‘broken 

heroes.’’ Building on that success, Got Your 6 was proud to launch a policy department early in 2017 aimed at bringing the existing successes of the veteran empowerment movement and messaging to the halls of Congress. 

The Got Your 6 policy framework includes advocating for legislation that: 

1. Supports efforts to change the current narrative of veterans as only ‘‘broken 

heroes;’’ 

2. identifies common sense reform that does not detract from existing services but 

does increase efficiency or cost savings; 

3. recognizes the entire veteran population, including the 13 million who do not 

use the Department of Veterans Affairs (VA) for their health care needs; and, 

4. supports a strong VA that adequately meets the needs of those veterans who 

choose to use it. 

135 

S. 112, THE CREATING A RELIABLE ENVIRONMENT FOR VETERANS’ DEPENDENTS ACT

The Creating a Reliable Environment for Veterans’ Dependents Act would allow 

VA-funded homeless shelters to be reimbursed for services provided to dependents 

of veterans. 

Got Your 6 supports this bill, appropriately resourced by Congress, as a means 

to empower veterans with dependents out of homelessness and back into their communities. At Got Your 6, we view families and dependents as part of the whole of 

a veteran. Excluding coverage for veterans’ dependents from the care and services 

at homeless shelters has the potential to exacerbate the complications of homelessness for a vulnerable population of veterans and could perpetuate homelessness. 

Allowing the VA to reimburse homeless shelters for veterans’ dependents goes beyond providing families a place to sleep. The ancillary services, such as employment 

training, available to veterans utilizing VA’s homeless services, provide the critical 

tools necessary to ensure long-term successful integration into the civilian world. 

Veterans with dependents could especially benefit from these services and use them 

to empower themselves and their families into sustainable housing and stronger 

community reintegration. 

S. 591, THE MILITARY AND VETERAN CAREGIVERS SERVICES IMPROVEMENT ACT

The Military and Veteran Caregivers Services Improvement Act would expand the 

current VA caregivers program to veterans of all eras, expand eligibility parameters 

for the program, create a national interagency working group, and add additional 

services to the program, among other provisions. 

Veteran and military caregivers provide daily care for our Nation’s most grievously wounded veterans, often leading to their own employment, financial, and 

health challenges. The VA’s current caregiver program is intended to provide comprehensive support for these individuals, connecting them with VA professionals 

who can aid and empower them to best support their veteran while leading fulfilling 

lives of their own. However, the current program is limited to caregivers of post9/11 veterans leaving the vast majority of caregivers with limited support and resources. 

Got Your 6 supports this legislation—services and support intended to empower 

caregivers should not be tied to a specific generation of service. Got Your 6 appreciates the VA’s concerns with expanding its current caregiver program and recognizes such an expansion would require significant staff resources and appropriations 

but believes the need for expansion is necessary. 

S. 681, THE DEBORAH SAMPSON ACT

The Deborah Sampson Act would support the VA’s mission to adequately meet the 

needs of women veterans by: increasing peer-to-peer assistance, encouraging greater 

collaboration with community partners, expanding maternity and newborn care, 

eliminating existing barriers to care, and collecting and disseminating data specific 

to women veterans. 

Since our Nation’s founding, and especially over the last 16 years, women have 

served in a variety of roles in our Armed Forces, but their service is often overlooked and their needs misunderstood by the VA and the American public. This 

March, Got Your 6 challenged the national narrative around women veterans by 

launching the PSA #ShesBadass to better illustrate the truly remarkable service of 

women. 

According to VA data, women now total almost 11 percent of all veterans, including 20 percent of veterans under the age of 50, yet many people under appreciate 

their contributions and accomplishments. For example, after exiting the military, 

women veterans are more likely to attend and complete higher education degrees 

compared to their male veteran or civilian counterparts; have higher average incomes than non-veterans ($54,000 vs. $44,000); and are more likely to work in management roles and professions compared to their non-veteran counterparts. Women 

veterans are a force of impactful change for our Nation as a whole and empowering 

them to continue to do so only strengthens us all. 

While our #ShesBadass campaign serves as a powerful tool in helping to reshape 

the way America views women veterans, there are still real challenges many women 

face when seeking care and benefits at the VA. Got Your 6 supports S. 681 as it 

reduces barriers to care and benefits and better equips the VA to address some of 

the challenges women continue to face. The veteran community’s support of this legislation cannot be held in a vacuum; such transformational change will also require 

adequate appropriations and a continued commitment from VA leadership to make 

equity a priority. 

136 

However, better delivery of benefits and care by the VA should not be viewed as 

the only means to empower women veterans, and it risks excluding and further 

marginalizing those women who choose not to utilize the VA. We encourage this 

Committee to challenge their own views on women veterans, to seek out and highlight resources that empower women in their communities outside the VA, and leverage the amazing contributions women veterans are making to society across the 

country. 

S. 804, THE WOMEN VETERANS ACCESS TO QUALITY CARE ACT

The Women Veterans Access to Quality Care Act would require improvements to 

VA infrastructure, include women’s health outcomes as a performance measure for 

VA medical center executives, mandate improved policies for environment of care inspections, and ensure greater access to Obstetricians-Gynecologists, among other 

provisions. 

As stated above, Got Your 6 has been a leader in highlighting the strength of 

women veterans through our #ShesBadass campaign, but we also recognize the VA 

continues to have challenges in adequately meeting the needs of women veterans 

seeking care at VA facilities. We support S. 804 and the improvements to VA policies and infrastructure included in the bill that will address some of these deficiencies. Again, we reiterate that these changes cannot be accomplished without 

adequate resources and continued leadership on the issue across the VA enterprise. 

S. 1024, VETERANS APPEALS IMPROVEMENT AND MODERNIZATION ACT

The Veterans Appeals Improvement and Modernization Act would address many 

of the challenges experienced under the current disability claims appeals process by 

creating three routes for veterans to choose from if they want to appeal the initial 

decision made on a claim for VA benefits, allowing those veterans currently going 

through the appeals system to opt in to the new system, requiring the VA to test 

the new system before full implementation, and requiring the VA to submit a plan 

on full implementation of the new system and how it will process existing appeals. 

Comprehensive appeals modernization is a long-standing priority of the veteran 

community. The current, antiquated system is under the burden of a significant 

backlog, which can often leave veterans waiting years for a decision. Eligibility for 

many of the empowering services and benefits offered by the VA are tied to these 

appeals decisions, leaving some veterans in limbo. Additionally, the VA workforce 

can be more efficient in its operations under this new system, opening up resources 

and opportunities for greater efficiency in benefit delivery. Because of this, Got Your 

6 supports this legislation and encourages Congress to finally address the VA’s need 

for a modernized appeals process. 

S. 1094, DEPARTMENT OF VETERANS AFFAIRS ACCOUNTABILITY AND

WHISTLEBLOWER PROTECTION ACT

This bill comprehensively addresses workforce management needs at the VA by 

shortening the removal process, ensuring removed employees are not kept on VA 

payroll while in the appeal process, and ensuring due process protections for whistleblowers, among other provisions. 

The need to provide the VA Secretary greater workforce management flexibility 

has been frequently debated and discussed by many in the veteran community over 

the last three years. But, progress on enacting legislation to address this need has 

continuously stalled due to partisan gridlock and legitimate legal concerns over Constitutional workforce protections. 

Got Your 6 is encouraged by the bipartisan nature of this bill and we support this 

legislation as a means to provide VA’s leadership more efficient workforce management options. Our support being stated, we also call on leaders within this Committee to work with their counterparts in the House of Representatives to address 

any potential differences in intent and specific language, which has stalled movement on this issue for three years. 

DRAFT, SERVING OUR RURAL VETERANS ACT

This bill would create a pilot program to cover the costs associated with medical 

residencies and internships in partnership with tribal health care facilities. 

A shortage of health care providers, and mental health care providers in particular, is not a unique VA problem, it’s an American problem. This shortage is felt 

even more acutely in our rural communities where recruitment and retention are 

especially difficult. The pilot program established in this legislation would help address some of these barriers by leveraging and expanding the existing partnership 

137 

with tribal health care facilities and allows the VA to cover expenses of medical 

residencies at such facilities. 

Got Your 6 supports this legislation as it encourages the VA to continue seeking 

ways to increase its operational efficiencies and its ability to successfully meet the 

needs of veterans regardless of their location. Additionally, this bill could serve the 

national population at-large by creating a lesson in best practices for ways the Federal Government can help address the overall provider shortage. We also encourage 

Congress to work with the VA to address any concerns related to the implementation and intent of the bill to ensure maximum impact and success of such a pilot 

program. 

DRAFT, THE VETERAN PARTNERS’ EFFORTS TO ENHANCE REINTEGRATION ACT

This bill would expand the VA’s peer support model, currently used in mental 

health care, into the primary care setting. 

Recognizing the importance of addressing common mental health care concerns in 

the primary care setting, the VA has begun to co-locate mental health care providers in the primary care setting. This supports the VA’s unique ability to integrate 

services and reduce the burden of seeking multiple facets of care for veterans. However, peer support specialists, who we believe are integral, have yet to be integrated 

in a similar manner. 

The VA’s peer support program is directly aligned with the mission of Got Your 

6: it aims to empower veterans with the tools necessary to successfully reintegrate 

fully into the community. Peer Specialists do this partly through storytelling and 

sharing their own paths to success. Got Your 6 believes storytelling is a powerful 

way to empower veterans, reduce the civilian-military divide, and destigmatize seeking help when needed and strongly supports this bill as a means to grow the peer 

support program at the VA to meet those objectives. 

In conclusion, Got Your 6—through our 34 direct-impact, non-profit partners who 

collectively represent three million veterans and their families, as well as through 

our efforts to empower and challenge veterans when they return home—are a new 

voice which represents all veterans, of all generations, of all backgrounds. We put 

veterans first and challenge them not to think of themselves as broken, but as the 

leaders our country is desperately searching for. The veteran empowerment movement is young, but it is already the voice of millions of veterans looking to challenge 

the status quo. 

The veteran empowerment movement also addresses the majority of veterans who 

do not use the VA. Got Your 6 encourages this Committee to consider holding a topical hearing on community programs and veteran organizations currently meeting 

the needs of and empowering veterans outside the walls of VA facilities. 

We would like to thank this Committee for its leadership on veterans’ issues and 

look forward to working together to empower all veterans. 

PREPARED STATMENT OF MILITARY OFFICERS ASSOCIATION OF AMERICA

CHAIRMAN ISAKSON, RANKING MEMBER TESTER, AND MEMBERS OF THE COMMITTEE, The Military Officers Association of America (MOAA) is pleased to present 

its views on pending legislation under consideration by the Committee. 

MOAA does not receive any grants or contracts from the Federal Government. 

EXECUTIVE SUMMARY

On behalf of the Military Officers Association of America, the largest military 

service organization representing the seven uniformed services, including active 

duty and Guard and Reserve members, retirees, veterans, and survivors and their 

families, MOAA thanks the Committee for holding this very important hearing and 

for your continued support of our Nation’s servicemembers and veterans and their 

families. 

This is a critical time for the Department of Veterans Affairs (VA) as the agency 

continues its aggressive transformation efforts. MOAA believes many of the bills 

being considered today will buildupon the work of the Committee and the secretary 

of VA to further enhance the agency’s health and benefits systems. Our association 

looks forward to working with the members and staff to strengthen and improve the 

legislation enacted this year. 

MOAA offers our position on the following select bills. MOAA takes no position 

on the remaining bills before the Committee, as some are outside our scope of 

expertise. 

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Health Care: 

• S. 112, Creating a Reliable Environment for Veterans’ Dependents Act • S. 591, Military and Veteran Caregiver Services Improvement Act of 2017 • S. 681, Deborah Sampson Act • S. 784, Veterans’ Compensation Cost-of-Living Adjustment Act of 2017 • Draft Bill, Serving Rural Veterans Act of 2017 

Benefits/Accountability: 

• S. 1024, Veterans Appeals Improvement and Modernization Act of 2017 • S. 1094, Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 

HEALTH CARE

S. 112, CREATING A RELIABLE ENVIRONMENT FOR VETERANS’ DEPENDENTS ACT— The bill would authorize per diem payments for homeless veterans receiving comprehensive support services in order to furnish care to their dependents. 

MOAA supports the bill. Veteran homelessness continues to be a high priority for 

the VA and our Nation. Since the VA launched a massive campaign to end veteran 

homelessness in 2009, rates have steadily declined, down by nearly 50 percent. 

While rates are declining, veterans with families have been increasing in recent 

years. As the VA continues to serve more veterans than ever by providing health 

care, education, job training, and many other wellness and welfare services, there 

is still more to be done—and the needs are so much greater for veterans with children. Per diem payments for homeless veterans will go a long way toward giving 

veterans a hand up as they move down a path to achieving family stability and 

long-term security. 

S. 591, MILITARY AND VETERAN CAREGIVER SERVICES IMPROVEMENT ACT OF 2017— This measure expands eligibility and comprehensive assistance and benefits for family caregivers participating in the VA’s Caregiver Support Program. 

Specifically, the bill expands eligibility for participation and services to family 

caregivers of veterans of all eras, rather than the current population of post-9/11 

veterans, and includes ‘illness,’ rather than just ‘serious injury,’ as a criterion for 

eligibility. 

Additionally, the measure provides for a number of other program expansions, 

including: 

• Child care services or monthly stipend for such services; 

• Financial planning and legal services; 

• Adjustment to calculating caregiver stipend for performing personal care 

services; 

• Authority to transfer entitlement of unused post-9/11 education benefits to family members; 

• Flexible work arrangements for certain Federal employees; 

• Lifespan respite care; and 

• Establishment of an interagency working group on caregiver policy. 

MOAA generally supports the measure. Since passage of Public Law 111–163, the 

Caregivers and Veterans Omnibus Health Services Act of 2010, MOAA and our 

partners in The Military Coalition have supported the expansion of eligibility for the 

Caregiver Support Program to veterans with illnesses and to those who served before Sept. 11, 2001. 

Given the current challenges and assessment of the program, MOAA would not 

support the additional program expansions in the bill at this time until the VA has 

completed a thorough review of the program and offered recommendations to Congress on how to improve the program. The association, however, does support the 

establishment of an interagency working group as a valuable asset to the VA as it 

reforms and refines the Caregiver Support Program going forward. 

MOAA urges the Committee to adopt the provisions to expand eligibility to veterans who served before Sept. 11, 2001, and veterans with illnesses and to establish 

an interagency working group on caregiver policy. 

S. 681, DEBORAH SAMPSON ACT—The bill would improve the benefits and services 

provided by the VA to women veterans. Women are joining the military at rates unlike any other time in history, and they are accessing VA health care at higher rates 

than male veterans. While the VA has worked hard to address the growing demand, 

the department requires additional resources to implement system improvements 

and services to meet current and future needs of women veterans. 

MOAA supports S. 681. Offering peer-to-peer assistance and legal and supportive 

services, extending newborn care, eliminating barriers to access, and establishing 

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data collection and reporting requirements will help the VA better target the needs 

of women and minority veterans. MOAA, however, takes no position on Sec. 504, 

Sense of Congress on changing the motto of the VA to be more inclusive. 

S. 784, VETERANS’ COMPENSATION COST-OF-LIVING ADJUSTMENT ACT OF 2017—Each 

year legislation is introduced to provide a cost-of-living increase in compensation 

rates for veterans with service-connected disabilities and the rates of dependency 

and indemnity compensation for survivors of veterans. This bill provides for such 

increase effective Dec. 1, 2017. 

MOAA supports S. 784. 

DRAFT BILL, SERVING RURAL VETERANS ACT OF 2017—The bill would authorize the 

VA to pay for the costs of training and supervision of medical residents and interns 

at certain non-department facilities. Additionally, the bill would require the secretary to conduct a pilot program to establish or affiliate with residency programs 

at facilities operated by the Indian tribes, tribal organizations, and the Indian 

Health Service. 

American Indians and Alaska Natives have historically had the highest rates of 

representation in the Armed Forces. The VA has dedicated significant attention and 

resources to addressing the unique needs of Native American veterans as well as 

veterans who live in very rural areas where access to quality health care can be 

a challenge. The department has worked hard in recent years to develop partnerships to expand access to services and benefits for Native American veterans and 

their families so they are able to access the benefits they have earned. 

MOAA supports the draft legislation. This legislation builds on the existing work 

the VA has undertaken to improve access for Native Americans and rural veterans. 

The bill would provide the VA with additional tools to strengthen existing relationships and agreements with the Indian Health Service and tribal health organizations, as well as $20 million over an eight-year period to pilot critical educational 

and training initiatives for residency, intern, and graduate medical education pilot 

programs. 

BENEFITS/ACCOUNTABILITY

S. 1024, VETERANS APPEALS IMPROVEMENT AND MODERNIZATION ACT OF 2017—This 

bill makes fundamental changes to the VA claims adjudication process. It would 

break up claims processing into three separate lanes, each representing a different 

phase of the claims process. 

MOAA supports the bill. It is indisputable that the VA claims adjudication process is an unworkable solution, and for years the veterans’ community has urged 

Congress and the VA to update these procedures. MOAA appreciates that the bill 

defines ‘‘supplemental claim,’’ makes clear the duty to assist applies to supplemental 

claims, and provides additional effective date protections. Improvements, however, 

can be made in the legislation. 

Board of Veterans’ Appeals Dockets 

This bill sets forth that the Board of Veterans’ Appeals shall maintain two dockets, one for claimants requesting a hearing before the board and the other for claimants not requesting a hearing before the board. 

MOAA supports allowing claimants the opportunity to submit evidence to the 

board directly. This allows claimants with legally complex claims to have a veterans 

law judge consider that evidence in conjunction with the questions of law instead 

of cycling through the agency of original jurisdiction (AOJ), where the AOJ may lack 

the legal acumen to adequately resolve the claim. 

MOAA recommends the legislation be modified to provide that claimants submitting evidence directly to the board be placed on the ‘‘non-hearing docket.’’ This is 

the closest docket fit to their circumstances because the claimant is not requesting 

a hearing. Further, regardless of whether a claimant’s appeal includes additional 

evidence or not, the veterans law judge will be required to review evidence within 

the record. In other words, if a claimant merely appeals without submitting additional evidence, the board must still review all existing evidence in the record. Thus, 

the choice not to submit additional evidence does not prevent the board from having 

to review evidence. 

We do not recommend the other option of placing these appeals on the ‘‘hearing 

docket,’’ as this would disproportionately disadvantage the claimant. During roundtable discussions leading up to appeals reform legislative proposals, VA officials 

stated the hearing docket would be much slower than the non-hearing docket. It is 

unjust to force claimants not requesting hearings to wait behind those requesting 

hearings for the board to address their appeals, where it does not require any additional work of the veterans law judge to consider the additional evidence. 

140 

The VA has expressed concerns that including claimants with additional evidence 

amongst those without additional evidence on the same docket would confuse the 

‘‘feedback loop,’’ but we believe this is manageable. The feedback loop permits the 

board to provide input to the AOJ regarding errors the AOJ committed in the original adjudication of the claim. There appears to be no reason, however, the Board 

could not simply exclude the claims with additional evidence from the feedback loop 

and still provide very useful feedback to the AOJ from the remaining claims. 

Collaboration with Veterans Service Organizations 

MOAA greatly appreciates that the legislation mandates the VA collaborate with 

and give weight to the inputs of veterans service organizations. MOAA recommends, 

however, that references to ‘‘the three veterans service organizations with the most 

members’’ be modified to ‘‘the three veterans service organizations that file the most 

claims on behalf of claimants.’’ Veterans service organizations serve many functions 

in the veteran community, not exclusively confined to filing VA benefits claims. 

Merely because a veterans service organization has a large number of members does 

not necessarily mean the organization is the best advisor related to the VA claims 

process. A more reliable gauge of a veterans service organization’s value to the process is the number of VA claims filed by the organization. The Veterans Benefits Administration already tracks the number of claims filed by each veterans service organization, making this information readily available to VA. 

Fully-Developed Appeals 

MOAA supports granting the secretary the authority to carry out a fully-developed appeals program because it would allow a claimant to expedite a claim to the 

board with all evidence needed for the appeal. This goal is consistent with the overall intent of VA appeals modernization. 

This process would also be almost identical to the process for a claimant participating in the modernized appeals process who chooses to submit additional evidence 

for the board’s consideration. For that reason, MOAA recommends appeals processed 

using this option be docketed in the non-hearing option. This would prevent the 

need for the board to maintain a third docket, as the legislation currently contemplates. A third docket with varying processing rules would be very confusing to 

claimants in understanding whether their claim is being handled properly. 

Although this legislation includes extensive changes to the VA claims process, 

MOAA believes further efforts will be necessary by Congress to improve the process, 

including, but not limited to, addressing the precedential value of agency determinations and giving equal consideration to both private and VA medical evidence. 

S. 1094, DEPARTMENT OF VETERANS AFFAIRS ACCOUNTABILITY AND WHISTLEBLOWER PROTECTION ACT OF 2017—This bill will provide the secretary of VA with 

additional authorities to expedite the removal of VA employees when warranted. 

MOAA’s understanding is the bill would allow VA employees to still utilize employee 

union representation, merely within the timeline provided in the legislation. 

MOAA supports this bill. The secretary should have all authorities and resources 

necessary to effectively manage the VA workforce. Although VA employees are predominantly very good at caring for veterans and take this responsibility very seriously, it is clear from recent events there are VA employees who do not and who 

have spent years embroiling the agency in protracted litigation at taxpayer expense, 

despite their clear disregard for the best interests of veterans. MOAA believes the 

agency should be allowed to focus on veterans’ needs, and these expedited authorities will allow the secretary to do so. 

MOAA thanks the Committee for considering this important legislation and for 

your continued support of our veterans and their families. 

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PREPARED STATEMENT OF CDR JOHN B. WELLS, USN (RET.), EXECUTIVE DIRECTOR, 

MILITARY-VETERANS ADVOCACY INC. 


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crafting legislation that is resuhs oriented. 

The proposed legislation does nothing to fix the systenm proble~ within the VA 

Appellate system Instead it seems to make the process easier for the VA. at the expense of the 

veteran. The proposed legislation flies in the fuce of the non-adversaria~ pro-veteran system 

envisioned by Congress. Cwrently the VA takes an adversarial anti-veteran approach designed 

to provide the illusion of efficiency while denying veterans their earned benefits. 

Areas of Concern With the Proposed Legislation 

Other than allowing veterans stuck on the ''hamster wheer• of the VA appellate system to 

opt in to the new system, the bill does nothing to address the peoding inventory of over 450,000 

appeals. The actions of the VA in clearing the backlog through increased claim denials has 

expaoded the appellate backlog. For sorre unfuthomable reason, the Secretary aod Acting 

Executive of the Board ofVeterans Appeals, have fuiled to take action to resolve this backlog. 

Currently, the Chairman has the power to appoint teJ1l'orary Board rrembers from VA 

e!I1>1oyees. This needs to be changed legislatively to remove the qualification that the te!Jl>Orary 

board member be a VA employee. MY A recomrends, allowing the appointment of retired 

Military Judges to adjudicate the backlog near their local residence. While that would require 

some training in VA law, the retired Military Judges are conversant with the lmard of military 

service. Additionally, they are trained to make decisions in an equitable aod efficient manner. 

MY A does appreciate the requirement that the Secretary submit a plan for dealing with 

legacy appeals however has little confidence that they will devise an acceptable rretbodology. 

MY A recommeods codifYing tl1e solution proposed above. 

Like other versions of this proposa~ S I 024 continues to strip the duty to assist from the 

veteran after the initial decision. As attorneys are not able to provide paid representation until 

after the initial decision, this measure effectively eliminates any ability to supplement the record. 

Given the woeful inadequacy of many Veterans Service 0 fficers, most attorneys have to 

do a baseline review of the claim> file aod often use the duty to assist to obtain critical records to 

support the appeal While inadequate at best, the duty to assist allows the attorney some latitude 

to obtain records to prepare the case. Without the duty to assist, the attorney will be required to 

rely upon the Freedom oflnfurmation Act. This will not only resuh in costs being attnbuted to 

the veteran but resuh in uodue delay. 

Removal of the restriction on attorney representation aod the agency of original 

jurisdiction would help to relieve this matter. More importantly, basic discovery should be 

allowed. Once a case is docketed at the Board, the use of a scheduling order with milestones 

would ensure that the case proceeds efficiently. Assigning a board attorney to shepherd the 

process would help resolve matters. Providing the veteran and his representative with contact 

information would help expedite the process. 

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The duty to assist is a matter of due process and is consistent with Cushman v. Shinsek~ 

576 F.3d I 290 (Fed. Cir. 2009). In Cushman, the Federal Circuit joined seven of its sister 

Circuits in finding that there was a property interest, for due process purposes, in disability 

benefits. Cushman, 476 at I 297. Specifically Cushman recognizes a Constitutional right to due 

process in veterans benefits. In the event that the duty to assist provisi>ns are enacted, MilitaryVeterans Advocacy will initiate litigafun to stop its ~lerrentafun. 

The bill coukl be llX>dified to allow a resumpti>n of the duty to assist upon the filing of a 

F orrn 2 I-22a by an attorney indicating that he or she is representing the veteran. This reopening 

of the duty to assist can be limited to reasonable peood, such as 90 days to allow the attorney 

tiJre to obtain the docurrents necessary to prepare the appeal 

S-I 024 retains the requirerrent that the veteran indicate in the Notice ofDisagreerrent 

whether he or she desires a hearilg or whether they wish to submit additional evidence. This 

effuctively sets up separate dockets. As discussed below, this is not necessary shoukl a 

scheduling confurence!order be required as routinely occurs in other federal adjudicafun system;. 

More irrportantly, there is no ability to amend or supplerrent the request. ln order to change the 

Notice ofDisagreement, the veteran would have to withdraw and resubmit it, assuming that it 

was not outside the one year statute oflirnitations. 

MV A feels that this provision is unconscionable. Attorneys are not required to provide 

that level of specificity when filing a notice of appeal in a federal appellate court. To expect a 

di<;abled veteran to meet this high standard is ludicrous. 

While the bill does authorize the Secretary to issue regulafuns allowing fur a change 

from one docket to another, this invitation is precatory. Military-Veterans Advocacy believes 

that unless required by Congress the Secretary will not issue those recomrreodafuns. 

Accordingly, Military-Veterans Advocacy strongly urges that the wording of proposed secfun 

7107(e) be changed from ''may develop and implerrent a policy allowing a claimant to llX>ve the 

claimant's case from one docket to another docket" to "shall develop and implerrent a policy 

allowing a claimant to rmve the claimant's case from one docket to another docket." 

ft is my understanding that the Federal Bar Association, the Vietnam Veterans of Arrerica 

and Nafunal Organization ofVeterans Advocates also have voiced concerns with the process 

outlined in S-1 024. While there is support from sorre of the Veterans Service Organizations, 

VSO's, practicing attorneys are less enthusiastic. 

The proposed legislation does nothing to fix the systemic problems within the VA 

Appellate system instead it seems to make the process easier for the VA, at the expense of the 

veteran. The proposed legislafun flies in the face of the non-adversaria~ pro-veteran system 

envisioned by Congress. Currently the VA takes an adversarial anti-veteran approach designed 

to provide the illusion of efficiency while denying veterans their earned benefits. 

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The dual docket, while an inl>roverrent over the initial triple docket recommendation, is 

just silly. There is no need for JD.Jh4>le dockets. The Board should adopt the procedures used by 

other tederal adjudication systems, hold a pre-hearing conrerence and issue a scheduling order. 

This order should include the hearing date and cutoff dates fOr requesting or waiving a hearing, 

submitting evXience and tennination of the duty to assist. This would replace the vague and 

misleading letters issued by the board. Coordination of dates, and a process to moduy the 

scheduling order for good cause, will streamline the process. Pre-hearing confurences can be 

scheduled bye-mail and conducted by telephone. It is a sinlJie and effective system used 

everywhere except the Board of Veterans Appeals. 

Areas of Concern Not Addressed in the Proposed Legislation 

The proposed legislation does address the Board ofVeterans Appeals but it does not 

speak to the crux of the problem. The key to solving the appellate backlog is addressing the 

systemic problems of the Board. Initially, and as a matter of priority, the President must appoint 

a qualified cbainmn of the Board. Secondly, MV A recommends that an n~rrbers of the Board, 

acting or pennanent, be certified as Adrnini'ltrative Law Judges. The lack of training and learned 

reasoning in the opinions of the Board rrerrbers is frankly striking. 

Perhaps the s.ingle step that could expedite the process would be the institution of 

electronic filing. Currently evXience and written argurrents must be printed into bard copy and 

sent both to the Board and to the EvXience Intake Center in Janesville. Some~s the 

infonnation is scanned into the correct record - somet~ it is not Electronic filing would 

eliminate the ~ required for processing and ensure that the infbnnation and evXience is 

appended to the correct record. AU tederal courts and most state courts use sorre fOrm of 

electronic filing. Off the shelf software is available commercially at litt.le expense. Additionally, 

the software would allow VSOs and attorneys access to the .records of those they represent. 

The controllable rermnd rate from the Board is definitely unsatisfitctory. The veteran is 

often relegated to a ''hamster wheer' in which his case is sent back and forth between the Board, 

the Regional office and the Court of Appeals fOr Veterans Claims. Too many cases are 

remanded back because the board member sinl>ly does not do his or her job. MV A proposes that 

if more than 30% of any Board meni>er's decisions are remanded within a given year the 

Cbainnan should review the performance and recommend action to the Secretary including 

additional training, probation, suspension or termination. Remands based upon a change in law 

or regulation would be exempt from computing the remand percentage. Given the high level of 

remands, MV A recommends that this information be included .in the annual report to Congress. 

Although the Board members can themselves "Veterans .Law Judges," no statute 

designate them as Judges and in reality the are not. Notably these Board rrembers are VA career 

errployees. They are not certified as Administrative Law Judges and seldom have any real 

judicial training or experience. This is one of the main reasons for the high remand rate. 

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PREPARED STATEMENT OF JOHN KRIESEL, LEGISLATIVE CHAIRMAN, NATIONAL

ASSOCIATION OF COUNTY VETERANS SERVICE OFFICERS

GOOD AFTERNOON CHAIRMAN ISAKSON, RANKING MEMBER TESTER, AND MEMBERS

OF THE COMMITTEE, It is truly my honor to present this written testimony for this 

hearing. As Legislative Chairman of the National Association of County Veterans 

Service Officers, I am submitting this testimony, to give our organization’s support 

for S. 1024, The Veterans Appeals Improvement and Modernization Act of 2017. 

The National Association of County Veterans Service Officers is an organization 

made up of over 1,600 local government employees that advocate for veterans daily 

across all facets of veterans’ benefits. We believe we can help the Department of 

Veterans Affairs reduce the number of cases in the Board of Veterans Appeals 

(BVA) inventory, currently standing at 469,000 appeals. As an organization, we feel 

this legislation is a needed step in the right direction. It is imperative that the VA 

and all Veteran Service Organizations work together to relieve claimants of the extreme wait times for decisions from the BVA. 

There are many reasons appeals are generated out of County offices every day, 

it starts with VA Regional Offices failing to explain their decision in a way that 

makes sense to the veteran, and VA’s unwillingness to work with veterans’ advocates on addressing inaccuracies in a rating decision. The reason for this is, simply, 

because there is no incentive for the rating authority to work with veterans or their 

advocates. Instead, they must meet quotas to prove efficiency and very commonly 

County Veteran Service Officers are instructed DRO’s (Decision Review Officers) to 

appeal to the BVA in lieu of them correcting the decision. This practice is one of 

the main contributing factors for the 469,000 appeals backlog at BVA. The sweeping 

changes in the appeals process included in S. 1024 are why NACVSO supports this 

legislation. Claimants in the new process will experience less waiting times, and VA 

Regional Office staff will receive meaningful feedback from the BVA on cases that 

have been remanded or overturned. For VA to work efficiently, guidance from the 

BVA on legal discrepancies in initial claims, must be done and within a timely fashion that offers solutions to misinterpreted regulations at the VARO level. 

While we support S. 1024, we feel that it is important that we address our concern with a portion of the legislation. NACVSO believes every step in the claims 

process is an opportunity to adjudicate the claim in the claimants’ behalf. As the 

claim continues to mature in the process the arguments are solely based on law and 

legal precedence. To allow a claim back into the Regional Office within one year of 

a Court of Appeals for Veterans Claims (CAVC) decision would require the local 

staff to rule against a board of judges. In practicality, the case would not receive 

a fair hearing again until it returns to the BVA. Allowing the claims cycle to continue on this journey promotes for-profit attorneys to keep the case alive based on 

little to no merit. Allowing this will keep the appeals backlog at an unnecessarily 

high number. The process today, and in this proposal, needs to have finality. If the 


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CAVC decision maintains a denial on legal grounds the attorneys representing that 

case need to have the wherewithal to advance the case to next higher court or simply inform the veteran that until evidence can be discovered that would weigh heavily in the reversing the decision, the claim and effective date will expire. 

As an organization, the National Association of County Veteran Service Officers 

support the majority of changes included in S. 1024. We are proud to stand next 

to the Department of Veterans Affairs, fellow Veteran Service Organizations and 

Congress as we work toward a solution that will deliver quality and timely benefits 

to our veterans and their dependents. 

PREPARED STATEMENT OF DR. JOSEPH WESCOTT, LEGISLATIVE DIRECTOR, NATIONAL

ASSOCIATION OF STATE APPROVING AGENCIES

CHAIRMAN ISAKSON, RANKING MEMBER TESTER, AND MEMBERS OF THE COM- MITTEE, The National Association of State Approving Agencies (NASAA) is pleased 

to provide its views on certain education benefits legislation under consideration by 

the Committee today, May 17, 2017, particularly S. 764. 

NASAA does not receive any grants or contracts directly from the Federal Government, though its member organizations are state agencies operating in whole or in 

part under Federal contracts funded by Congress and administered by the Department of Veterans Affairs (VA). 

On behalf of fifty-two State approving agencies (SAAs), including the territory of 

Puerto Rico and the District of Columbia, NASAA thanks the Senate Committee on 

Veterans Affairs for its strong commitment to a better future for all servicemembers, veterans and their families through its continued support of the GI Bill® 

educational program. 

S. 764, A BILL TO AMEND TITLE 38, UNITED STATES CODE, TO IMPROVE THE ENROLL- MENT OF VETERANS IN CERTAIN COURSES OF EDUCATION, AND FOR OTHER PURPOSES. 

State approving agencies take seriously our role as ‘‘the gatekeepers of quality’’ 

and the ‘‘boots on the ground’’ defending the integrity of the GI Bill and making 

sure that only quality programs are approved by applying Federal and state law and 

regulation. An additional and equally important role is the continued oversight of 

these programs after their initial approval. We do so in conjunction with other 

stakeholders in veteran organizations and higher education, including state licensing agencies, state higher education departments, the Department of Veterans Affairs, the Department of Education and national and regional accrediting agencies. 

We also seek to encourage our approved institutions to provide resources and policies which will help guarantee the success of our veteran students once they enroll 

in an SAA approved program. Congress, in establishing the laws and regulations 

governing the manner and method by which education could be approved for veterans, has wisely provided that the States, through their State approving agencies 

are best situated and staffed to evaluate and oversee educational programming 

being considered for approval and being continued for GI Bill payment. Certainly, 

it is not inappropriate for Congress to consider establishing, as a part of requirements for approval that educational institutions will extend to veterans the same 

priority registration rights that they provided to other groups or classes of students 

within their institutions. However, we think that given the consequences of failing 

to do so (i.e. none of the institutions programs can be approved for reimbursement 

under the GI Bill), it is important that Congress allow the institutions maximum 

control over how the priority enrollment policy is implemented. For instance, the following wording ‘‘the Secretary or a State approving agency may not approve a program of education offered by such institution unless such institution allows a covered individual to enroll in courses at the earliest possible time pursuant to such 

priority enrollment system,’’ should be amended to allow institutions to implement 

this requirement in such a way that veterans would not compete for classes with 

students from other earlier class years. Likewise, since some schools will need time 

to implement this on their campuses, we would suggest that schools, which are already approved and have priority registration systems in place, be given adequate 

time to respond to the new approval requirements. 

Finally, we would point out the recent legislation enacted by Congress recognizes 

the primary role played by State approving agencies in the area of program approval. As such we would request that Congress change the wording of 3680B(a) to 

read, ‘‘a State approving agency, or the Secretary when acting in the absence of a 

State approving agency, may not approve . . .’’ 

Given the fact that many leading institutions of education, particularly accredited 

public institutions of higher learning (IHLs), are already offering student veterans 

147 

priority enrollment, we don’t think that it is unreasonable to require that educational institutions offering this privilege to other student groups on their campus 

provide it to veterans as well. 

For the reasons cited above, NASAA respectfully requests that the language of 

this bill be changed so that the manner and method of offering priority enrollment 

to veterans will not impede the graduation/progress of those students in classes senior to them. Likewise, we suggest the insertion of an effective date to allow already 

approved institutions time to develop and implement this requirement. Finally, the 

primary role of the States in the approval of programs should be protected and reflected in the language of the bill. With those amendments, NASAA supports this 

bill. 

Today, SAAs throughout our Nation, composed of approximately 175 professional 

and support personnel, are supervising over 10,000 active facilities with 100,000 

programs. We pledge to you that we will not fail in our critical mission and in our 

commitment to safeguard the public trust, to protect the GI Bill and to defend the 

future of those who have so nobly defended us. Mr. Chairman, NASAA thanks the 

Committee for the opportunity to share our concerns and suggestions and we commit to working together with you and your staff to enhance the pending legislation. 

148 

PREPARED STATEMENT OF RANDY REEVES, PRESIDENT, NATIONAL ASSOCIATION OF

STATE DIRECTORS OF VETERANS AFFAIRS


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NASDVA - May 17,2017 

year after the date an which the Court of Appeals for Veterans Claims issues a decision"), 

contained inS. I 024. The following items arc germane: 

a. An intentional feature of the design developed collaboratively with the Appeals 

Working Group was that Veterans would not be encouraged to initiate judicial review 

when there is an efficient administrative remedy available. 

b. Allowing effective date protection after the Courts will likely provide incentive for filing 

an appeal to the Court for the sole purpose of generating attorney fees, notwithstanding 

the fact that a more immediate remedy is available in the administrative process. 

( l) As we understand, attorney fees would be available for representing claimants in 

the higher-level review, supplemental claim, and appeal lanes. 

(2) A reason behind effective date protection after the Courts (for paid altomeys) 

could be that it would delay resolution and generate more past due benefits; 

advantageous for attorneys but not good for Veterans. 

(3) /\s NASDV 1\ has maintained previously, judicial review should be reserved for 

Veterans who believe they have exhausted their administrative remedies and 

have a meritorious legal issue. 

(4) There is currently no effective date protection if the Court of Appeals for 

Veterans Claims (CAVC) affirms a Board of Veterans Appeals decision. 'Ole 

improved process. reflected in the collaborative/cooperative V Nstakeholder 

proposal. is not a change from the current system (on that point). Just as 

currently exists. in the new process. if CA VC vacates and remands the Board 

decision. the effective date is protected. Veterans lose no rights. as they exist in 

current law. in the Appeals Working Group proposal. 

There has been much work that has gone into developing meaningful Appeals 

Modemization/Refonn over the past year and a half. The work has focused, putting the Veteran 

first, on a system that seeks the best possible and timely outcome at the lowest level that is both 

advantageous to the Veteran and the American taxpayer. 

Contrary to what seems to be a fairly common misperception, by some, nearly 80% of the Veterans' 

Appeals process takes place in the Veterans Benefit Administration CVBA); not in the Board of 

Veterans Appeals nor the Court. The framework developed by stake-holders places emphasis, 

responsibility and accountability on VBA (where it should be). The aggrieved language (effective 

date after the court) se1-ves to encourage leaving the VBA process early, ther eby (functionally) 

denying Veterans opportunity for early r esolution at the lowest possible level and r elicvine 

VBA of resnonsibility " to get it right". We sincerely hope attention will be refocused on making 

sure the largest number of Veterans arc served in the most efficient manner possible; at the lowes! 

possible level. 

Regardless of whatever finn! language may come from S. 1024 or any related bill, there 

should be specific language included in the bill that imposes severe penalties, financial or 

othcn visc, on any (paid) attorney who is found to intentionally induce a Veteran client to 

initiate judicial review when ther e is an efficient administrative remedy available that would 

better serve the Veteran. 

2 
150 

PREPARED STATEMENT OF FRED S. SGANGA, LEGISLATIVE OFFICER, NATIONAL

ASSOCIATION OF STATE VETERANS HOMES

MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE, On behalf of the National Association of State Veterans Homes (NASVH), I am pleased to submit this testimony 

in strong support of S. 324, the State Veterans Home Adult Day Health Care Improvement Act of 2017, legislation introduced by Senators Orrin Hatch (R-UT) and 

Mazie Hirono (D-HI) to provide severely disabled veterans with an enhanced option 


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151 

to receive adult day health care services from State Veterans Homes. Similar legislation was introduced late in the Senate during the 114th Congress (S. 3198), however no further action was taken prior to adjournment last year. A companion 

House bill (H.R. 2460) did pass the full House last year without opposition and has 

been reintroduced (H.R. 1005) in the 115th Congress. Both the Senate and House 

bills were reviewed by the Congressional Budget Office (CBO) last year and neither 

received a score that needed to be offset; similar CBO scoring is anticipated for the 

reintroduced bills. 

The State Veterans Home program was established by a Congressional Act on August 27, 1888, and for more than 125 years State Homes have been in a partnership 

with the Federal Government to provide long term care services to honorably discharged veterans; in some states, widows and spouses as well as Gold Star Parents 

are also eligible for admission. There are currently 153 State Veterans Homes located in all 50 states and the Commonwealth of Puerto Rico. The National Association of State Veterans Homes (NASVH) was conceived at a New England organizational meeting in 1952 because of the mutual need of State Homes to promote 

strong Federal policies and to share experience and knowledge among State Home 

administrators to address common problems. NASVH is committed to caring for our 

Nation’s heroes with the dignity and respect they deserve. 

With over 30,000 beds, the State Veterans Home program is the largest provider 

of long term care for our Nation’s veterans. Current services provided by State 

Homes include skilled nursing care, domiciliary care and adult day health care. The 

Department of Veterans Affairs (VA) provides State Homes with construction grants 

to build, renovate and maintain the Homes, with States required to provide at least 

35 percent of the cost for such projects in matching funds. State Veterans Homes 

also receive per diem payments for basic skilled nursing home care, domiciliary care 

and ADHC from the Federal Government which covers about one third of the daily 

cost of care. 

Mr. Chairman, a decade ago NASVH led the effort on Capitol Hill to assist our 

most disabled veterans by allowing them to receive skilled nursing care in State 

Veterans Homes under a new program that would provide the ‘‘full cost of care’’ to 

the State Home and thereby expand the options available to these deserving veterans at no cost to them. In 2006, Congress passed and the President signed Public 

Law 109–461 which guaranteed ‘‘no cost’’ skilled nursing care to any honorably discharged veteran who has a 70% or higher service-connected disabled rating, or requires nursing care due to a service-connected disability. Unfortunately, the bill did 

not extend the same ‘‘no cost’’ program to alternatives to traditional institutional 

care, such as the medical supervision model Adult Day Health Care currently provided at three State Veterans Homes in Stony Brook, New York, Minneapolis, Minnesota and Hilo, Hawaii. S. 324 would fix that. 

Adult Day Health Care is designed to promote wellness, health maintenance, socialization, stimulation and maximize the participant’s independence while enhancing quality of life. A medical supervision model Adult Day Health Care program provides comprehensive medical, nursing and personal care services combined with engaging social activities for physically or cognitively impaired adults. These programs 

are staffed by a caring and compassionate team of multi-disciplinary healthcare professionals who evaluate each participant and customize an individualized plan of 

care specific to their health and social needs. 

As a licensed nursing home administrator, I would like to thank Senators Hatch, 

Hirono and the many bipartisan Senate cosponsors for recognizing the need to offer 

non-institutional alternatives to our veterans. Giving our veterans and families 

choices in how they can receive care is just the right thing to do. Making sure that 

there are no financial barriers to care is important to our most medically compromised veterans. 

It would be especially important to veterans like Jim Saladino and to his wife Noreen. Fifty years ago, Jim answered the call of his country and served honorably 

in the United States Army during the Vietnam War. Today, he suffers from the ravages of Agent Orange exposure. Specifically, he suffers from chronic illnesses including diabetes and Parkinson’s disease and he also recently suffered a stroke. Although the Saladino family could have decided to put Jim into our State Veterans 

Home because he is a 100% service-connected veteran and so it would have been 

fully paid for by VA, but that is not their choice. They would like their loved one 

to continue enjoying the comforts of his own home—for as long as he can. By providing him the benefits of our medical supervision model Adult Day Health Care 

program, Jim is able to keep living at home. 

Jim’s wife, Noreen, serves as his primary caregiver. She has publicly stated that 

the medical model Adult Day Health Care Program has been a true blessing for her. 

Jim comes to the ADHC program three days a week and we work closely with his 

152 

personal physician to provide services that will maintain his wellness and keep him 

out of the emergency room. During his six hour day with us, Jim receives a nutritious breakfast and lunch. He receives comprehensive nursing care. He also receives 

physical therapy, occupational therapy and speech therapy. He can get his eyes 

checked by an optometrist, his teeth cleaned and examined by our dentist, and his 

hearing checked by an audiologist. If required, he can get a blood test or an x-ray, 

have his vital signs monitored and receive bathing and grooming services while on 

site. 

For Jim’s wife, having him come to our program allows her the peace of mind 

knowing that he is in a safe and comfortable environment. She can then get a break 

as caregiver and tend to those issues that allow her to run her household. However, 

because of the way the law is currently structured, despite Jim’s eligibility for ‘‘no 

cost’’ skilled nursing care, they are required to pay out-of-pocket for a portion of his 

Adult Day Health Care, a cost they cannot afford. 

S. 324 will correct this disparity that prevents some of the most deserving and 

severely disabled veterans from taking advantage of this valuable program to keep 

living in their own homes. This legislation would authorize VA to enter into agreements with State Veterans Homes to provide medical supervision model Adult Day 

Health Care for veterans who are eligible for, but do not receive, skilled nursing 

home care under section 1745(a) of Title 38, the ‘‘full cost of care’’ program. Veterans 

who have a VA disability rating of 70 percent or greater or who require ADHC services due to a service-connected disability would be eligible for this program. The 

payment to a State Home under this program would be at the rate of 65 percent 

of the amount that would be payable for skilled nursing home care under the same 

‘‘full cost of care’’ program. This legislation would not only offer a lower cost alternative (ADHC) for severely disabled veterans who might otherwise require full time 

skilled nursing care, but it would also allow them to continue living in their own 

homes. 

Mr. Chairman, NASVH is aware of VA’s argument that a veteran participating 

in the ADHC program is physically inside a State Home facility for only about onethird of each day they are in the program, therefore the per diem should be only 

about one-third of the skilled nursing care per diem. However, this significantly misrepresents the level of care and services provided to veterans in medical model 

ADHC programs. First, it completely ignores the cost of transportation, which alone 

accounts for a significant cost for transporting elderly, frail, disabled veterans to 

and from their homes to State Homes. Second, the overwhelming majority of services—particularly medical, therapeutic and rehabilitation—are provided during the 

day shift, not overnight when veterans residing in State Homes are sleeping. In fact, 

the 65% ratio is identical to the ratio that Medicaid pays for adult day health care 

in New York as compared to what Medicaid pays for skilled nursing care. Finally, 

it is critical to note that allowing veterans to use ADHC services two to three times 

a week is enormously less expensive then placing them full-time into a skilled nursing facility. 

Moreover, VA has been stressing the need to provide essential long-term care 

services in non-institutional settings for our most frail, elderly disabled veterans. 

Medical supervision model Adult Day Health Care is a tremendous solution to this 

challenge faced by VA, one that can keep veterans living in their homes while allowing them to receive skilled nursing services and supports. There are a number of 

State Homes across the country interested in providing medical model ADHC services, however the current ADHC per diem is not nearly sufficient for most State 

Homes to cover the costs of this program. Enactment of S. 324 would provide a higher ADHC per diem rate for severely disabled veterans in medical supervision model 

ADHC programs and thereby allow additional State Homes across the country to 

offer this service to more needy and deserving veterans. 

For the Saladino family, receiving ‘‘no cost’’ Adult Day Health Care for their loved 

one would relieve a huge financial burden that they currently incur. Even though 

Jim’s service ended 50 years ago, he is still paying a price for his valor related to 

his service in Vietnam. Passing S. 324 would send a strong message to all those who 

have worn the uniform to protect our freedoms that they will never be forgotten. 

With 30 Senate cosponsors so far, S. 324 has strong bipartisan support, as does 

the House companion bill, and both are supported by major veterans service organizations, including The American Legion, the Veterans of Foreign Wars and Disabled 

American Veterans. 

On behalf of the National Association of State Veterans Homes, I urge you to favorably consider and pass S. 324 for Jim and Noreen Saladino, and for thousands 

of others across the country just like them. Thank you for the opportunity to submit 

this testimony to the Committee. 

153 

PREPARED STATEMENT OF SAMUEL V. SPAGNOLO, M.D., PRESIDENT, 

NATIONAL ASSOCIATION OF VA PHYSICIANS AND DENTISTS


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154 

PREPARED STATEMENT OF DIANE BOYD RAUBER, ESQ., EXECUTIVE DIRECTOR, 

NATIONAL ORGANIZATION OF VETERANS’ ADVOCATES, INC. 


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BACKGROUND 

In March 2016, NOVA was invited to participate with a group of stakeholders in a threeday summit, and at occasional meetings thereafter at VA's convenience, to discuss VA's 

appeals reform proposal. The framework provided by VA, and modified during the course 

of these meetings, became the basis of legislation considered in 2016. NOVA testified 

before this Committee in May 20 16 on such appeals reform legislation. National 

Organization of Veterans' Advocates, Inc., Statement of Diane Boyd Rauber, Esq. , 

Executive Direct01; Before the Senate Committee on Veterans ' Affairs Concerning Pending 

Legislation (May 24,20 16). Because NOVA expressed disagreement with some of the 

proposal's features, VA repeatedly excluded NOVA from continuing discussions and 

important dialogue amongst the summit participants. 

NOVA thanks the Committee for its time and effort to address the concerns expressed by 

NOVA and other stakeholders, as well as the General Accountability Office (GAO), in S. 

I 024. These improvements include, among others, the extension of effective date 

protection to decisions of the U.S. Court of Appeals for Veterans Claims, reversion to the 

current standard for fili ng a notice of disagreement, and robust reporting requirements for 

VA. We detail additional considerations below that should be addressed to ensure 

preservation of the veteran-friendly benefits process developed and preserved by Congress 

for many decades. 

APPEALS REFORM STATUTORY FRAMEWORK 

EFFECTIVE DATE PROTECTION 

As NOVA noted in the 114'

11 Congress, this new framework removes many procedural and 

due process protections for veterans. To offset the removal of some of these protections 

and eliminate "effective date traps," VA proposed the primary benefit conferred to veterans 

under its original proposal: the ability to preserve the effective date of a claim denied in a 

BVA decision by fi ling a "supplemental claim" within a year of that denial (with no limit 

to the number of times the veteran can avail himself of this option). 

NOVA testified last year that it was inconsistent to limit effective date protection solely to 

decisions of the agency of original jurisdiction and BVA, and fail to provide that same 

one-year period after a final CAVC decision. Such a limitation could result in far fewer 

veterans exercising their hard-fought right of judicial review because of concerns over 

losing effective date protection. For example, ifBVA declines to find VA failed to fulfill 

its duty to assist by obtaining an adequate examination for a veteran, that veteran may fee l 

required to obtain a costly private opinion to preserve an effective date rather than seeking 

judicial review to enforce what VA was required to do all along. 

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Judicial oversight is critical in the implementation of a new process, especially given the 

shrinking reach of the duty to assist. NOVA applauds the inclusion of effective date 

protection for veterans after a court decision and urges the Committee to retain this 

language in spite ofVA's opposition to it. 

Recommendations: This legislation codifies an existing effective date protection under 

38 C.F.R. § 3. 156(b), which treats new and material evidence submitted "prior to the 

expiration of the appeal period or prior to the appellate decision if a timely appeal has been 

filed" as if it had been fi led at the beginning of the appeal period. NOVA recommends the 

provisions of38 C.F.R. § 3.156(c) also be codified in the staMe as an important protection 

for the effective dates of claims for veterans who find additional service records after an 

original claim. 

NEW AND RELEVANT EVIDENCE STANDARD 

During the course of the appeals summit meetings, the stakeholders generally agreed the 

"new and material" standard should be eliminated. There was significant discussion on 

this topic, with the stakeholders generally agreeing the standard should be "new'' evidence 

only. Instead of fo llowing this consensus, VA inserted the term "relevant" to replace 

"material." 

First, NOVA maintains merely trading " relevant" for "material" will not significantly 

reduce the adjudication burden on VA. VA's proposed standard maintains the current twostep analysis to reopen a claim - first, whether the evidence is new and, second, whether 

that new evidence is relevant. Removing " relevant" would allow VA to simply adjudicate 

the merits every time and eliminate the need to make a threshold determination, which in 

the current system results in remands and additional delay. 

Second, the definition of relevant evidence - "evidence that tends to prove or disprove a 

matter in issue"- on its face is more stringent than the current definition of"material" 

evidence - "existing evidence that, by itself or when considered with previous evidence of 

record, relates to an unestablished fact necessary to substantiate the claim." Furthennore, 

what effect the " relevant" evidence standard would have on veterans is completely 

unknown, whereas extensive case law exists concerning the "material" evidence standard. 

If VA truly intends to create an evidentiary burden easier to meet than "material" evidence 

(which NOVA supports), the best way to ensure that is to simply require "new" evidence. 

Recommendations: The words "and relevant" should be deleted from 38 U.S.C. § 5108 

and the definition of" relevant" found at 38 U.S.C. § 101(35), both as proposed in this bill, 

should be stricken. In the alternative, the standard should remain as it is currently - "new 

and material." If the "relevant" standard is retained, we request Congress make an 

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unambiguous statement of its intent that this standard be interpreted as a lower burden than 

current law. 

SUBMISSION OF EVIDENCE ON APPEAL 

Regarding evidence in the non-hearing docket, section 7113(b )(2)(8) puts a burden on 

veterans at the time an NOD is filed by requiring the veteran to submit evidence with the 

NOD or within 90 days, and make an election for a hearing. Given that veterans often are 

unrepresented until after the fi ling of an NOD, there is no reason to require that 

irreversible legal decisions be made at that exact moment. This provision is too restrictive; 

if the case is waiting to be reviewed by BVA, it is more veteran friendly (and does not 

unduly burden BVA) for that period to be open until the decision is made. 

Recommendations: The veteran should be permitted to submit evidence or request a BVA 

hearing up until the date ofBVA's decision, or until another reasonable period prior to a 

decision being made. 

DOCKET MANAGEMENT 

NOVA maintains that a veteran who only wants to submit additional evidence to BVA 

should not be required to go into the hearing docket. BVA currently has an enonnous 

backlog of hearing requests - approximately five to six years - and discussion of 

implementation generally has not included VA's plans for reducing that backlog. It is not 

veteran friendly to force an appellant to wait for significant periods of time if he is not 

interested in a hearing but would like to submit evidence. 

NOVA appreciates the inclusion of a requirement in section 7107 that the Secretary 

provide a report describing the docket "for cases in which no hearing before the Board of 

Veterans' Appeals is requested in the notice of disagreement but the appellant requests, in 

the notice of disagreement, an opportunity to submit additional evidence." NOVA urges 

the Committee to require such a docket. 

Recommendations: It should be made clear that a veteran can move into the non-hearing 

docket without penalty - with the same or more favorable docket number - if he 

detenn ines he no longer wants a hearing after tbe initial request. 

DUTY TO ASSIST 

As noted above, veterans gain effective date protection in a new system. In exchange, 

BVA is relieved of an aspect of its duty to assist the veteran, as amended in 5103A(e): 

"The Secretary's duty to assist under this section shall apply only to a claim, or 

supplemental claim, for a benefit under a law administered by the Secretary until the time 

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that a claimant is provided notice of the agency of original jurisdiction's decision with 

respect to such a claim, or supplemental claim, under section 5104 of this title." The 

understood purpose behind this provision is to relieve BVA of the obligation to remand for 

additional development due to a duty to assist triggered by evidence submitted after the 

agency's decision. 

Recommendations: This provision should be clarified to ensure the restriction on the duty 

to assist at BVA is limited to a duty triggered by evidence submitted after the agency's 

decision and does not apply to affirmative duties required to be performed by BVA in the 

conduct of its adjudication process. 

ABILITY TO CHANGE " LANES" 

NOVA appreciates the added language of section 51 04C(2)(A), (B), (C), and (D) that 

provides guidance regarding a veteran's right to take various actions permitted by the 

statute at different times and to take different actions on different claims. 

Recommendations: Section 51 04C(2) should make clear the time period is tolled while 

the veteran is in a particular lane, so that if he chooses to withdraw from a lane after the 

expiration of the original one-year period and seek relief in a different lane, his original 

effective date is preserved. 

NOTICE OF DISAGREEMENT 

NOVA appreciates inclusion of a more reasonable standard for veterans when filing the 

notice of disagreement (NOD) by reverting back to the requirement that a veteran "shall 

identify the specific detennination with which the claimant disagrees." 

Recommendations: A provision should be added requiring VA to provide the claimant 

with notice of and an opportunity to cure the defect before BVA dismisses an appeal due to 

the veteran's failure to specify the determination with which she disagrees. 

IMPLEMENTATION ISSUES 

Successful implementation of this legislation will be key if it is truly to be the positive 

change veterans deserve and VA promises. Successful execution of VA's proposed process 

hinges on its ability to consistently meet its goals of adjudicating and issuing decisions in 

the 125-day window identified in its "middle lane" and deciding appeals within the oneyear period before BVA. As demonstrated with the prior backlog of original claims and 

scheduling of medical appointments, VA often struggles to meet its own internal goals to 

the detriment of veterans. 

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GAO recently described its concerns with VA's ability to implement a new process while 

resolving legacy appeals. U.S. Government Accountability Office, VA Disability Benefits: 

Additional Planning Would Enhance Efforts to Improve the Timeliness of Appeals 

Decisions (GA0-17-234)(March 2017)(hereinafter GAO Report). GAO's concerns have 

been shared by some stakeholders. 

Therefore, the extensive reporting requirements and requirement that the Secretary certify 

VA's readiness to implement the new system are critical. These requirements must remain 

in the legislation. Because VA stated it cannot pilot this system as recommended by GAO, 

congressional oversight is necessary. The legislation has far-reaching implications; many 

of them likely unforeseen until the system is implemented. 

Recommendations: As noted above, NOVA has been included as a stakeholder when it 

has been convenient for VA. Bringing the major organizations together initially allowed 

VA to state there was fu ll consensus on the framework. However, when NOVA disagreed 

with some features of last session's bills, VA declined to include NOVA in much of the 

ongoing discussion and negotiations with the organizations that participated in the original 

summit. As noted above, given the high percentage of involvement by attorneys and 

agents at BVA and the CAVC, we ask the Committee to include NOVA as a stakeholder 

(along with the other original summit participants) considered "appropriate" under the 

statute for purposes of the collaboration necessary to certify the program is ready to 

implement. 

Furthennore, because this system is predicated on veterans making significant choices in 

relatively short periods of time, VA must commit to providing attorneys and agents, and 

their professional staff members, with consistent electronic access to claimants' files. To 

its credit, VA agreed to provide attorneys and agents with remote access last fall. 

However, to allow veterans to fully access their right to representation and make an 

infonned choice as to how to proceed when faced with a denial, access must be expanded 

and improved. 

NOVA urges Congress to fu lly fund VA's information technology budget requests, 

especially innovations needed for VBMS and modernization of BVA systems. Modern IT 

systems, to include electronic case filing systems common in other venues, are necessary 

tools that benefit veterans, their advocates, and VA employees. 

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ADDITIONAL CONCERNS 

While focusing solely on process, the proposal is devoid of reform to the foundational 

underpinning of the claims adjudication and appeals process, i.e., the need for an adequate 

medical examination and opinion. At the January 2013 hearing addressing the appeals 

process, BVA acknowledged the problem: "The adequacy of medical examinations and 

opinions, such as those with incomplete fi ndings or supporting rationale for an opinion, 

has remained one of the most frequent reasons for remand." Why Are Veterans Waiting 

Years on Appeal?: A Review of the Post-Decision Process for Appealed Veterans ' 

Disability Benefits Claims: Hearing Before the Subcommittee on Disability Assistance and 

Memorial Affairs of the House Committee on Veterans'Affairs, 113'h Congress, 1

51 Sess. 23 

(2013)(prepared statement of Laura H. Eskenaki, Executive in Charge, Board ofVeterans' 

Appeals). Two years later, the Subcommittee on Disability Assistance and Memorial 

Affairs requested appeals data from VA, to include the top five remand reasons for the six 

fiscal years between 2009-2014. While not particularly detailed, in five of the six years, 

"nexus opinion" was listed as a top five reason. Department of Veterans Affairs (VA) 

Appeals Data Requested by House Committee on Veterans ' Affairs Subcommittee on 

Disability Assistance and Memorial Affairs (January 20 15). Other consistently reported 

reasons included " incomplete/inadequate find ings," "current findi ngs (medical 

examination/opinion)," and " no VA examination conducted." !d. 

VA often cites the veteran's submission of evidence as triggering the need for additional 

development. But see GAO Report at 25 ("VA lacks data to inform and confirm its 

understanding of the root causes of lengthy time frames. For example, VA lacks complete 

historical data on the extent to which submission of new evidence and multiple decisions 

and appeals occur, and thus cannot determine the impact of its current, open-ended process 

on appeals decision timeliness."). The reality is VA has consistently demonstrated 

difficu lty fulfi lling its fundamental obligation to provide veterans with adequate medical 

examinations and opinions in the first instance. Without substantive refonn to this 

process, to include consideration of a greater role for private and treating physician 

evidence, it is unlikely procedural reform alone can solve systemic problems. 

CONCLUSION 

NOVA shares the concerns of VA and the Committee that veterans wait too long for a final 

and fair decision on appeal. NOVA welcomes the opportunity to work with VA and this 

Committee to ensure a fa ir and comprehensive reform of the system. NOVA further 

recommends adoption of the revisions outlined in our testimony. Thank you for allowing 

us to present our views on this legislation. 

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PREPARED STATEMENT OF BARTON F. STICHMAN AND RONALD B. ABRAMS, JOINT

EXECUTIVE DIRECTORS, NATIONAL VETERANS LEGAL SERVICES PROGRAM


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I. POSITIVE FEATURES OF S. 1024 

We briefly highlight the significant positi ve features of the changes envisioned under S. 

I 024. Taken together, we believe these features will decrease appeal times while providing 

claimants with various options for pursing their appeals. The most significant positive features 

in S. I 024 are: 

It provides for enhanced "notice letters" to veterans and other claimants concerning the 

denial of their claims. Enhanced notice is critically important to veterans as they make 

detenninations about how to proceed when they arc dissatisfied with a VA decision. 

It eliminates the requirements under current law conceming the preparation of a 

Statement of the Case (SOC), the veteran's corresponding need to complete an additional step to 

perfect an appeal to the Board (i.e., VA Fonn 9) and VA 's subsequent need to certify the appeal 

by completing VA Fonn 8. While there may have been a time at which the SOC served a useful 

function in this system, the enhanced "notice letters" required by the proposal eliminate the need 

for an SOC. Thus, the SOC process serves only to delay the processing of claims. 

It lowers the standard necessary for re-opening a claim under Section 5108. The current 

standard of"new and material evidence" is replaced with "new and relevant evidence." The 

lowering of the standard is critically important. In addition, and as we discuss in more detail 

below, the revised Sections 5108 and 51 10 will allow veterans to obtain earlier effective dates in 

many circumstances than they would be able to do under the current version of this provision. 

It allows veterans a meaningful choice when they appeal to the Board of Veterans' 

Appeals (Board). A veteran may elect to forgo the submission of new evidence and a hearing in 

cases in which he or she determines such an approach is best. This would provide for more 

expeditious treatment of such appeals. On tl1c other hand, a veteran can elect to proceed on a 

track in which the submission of new evidence and a hearing is allowed. This dual-track 

approach recognizes the reality that not all appeals are alike. 

It allows a claimant to seek the assistance of a lawyer for pay after an initial denial but 

before the filing of a Notice of Disagreement (NOD). This is a change from current law in 

which a lawyer may not charge a fee before the filing of an NOD. While seemingly a small 

change, we believe tl1is is significant because the structure of the proposed new system provides 

claimants with myriad ways in which to proceed. Advice to such claimants will be critical and 

the proposed change allows more options for that advice. 

• We believeS. I 024 also reduces the means by which the VA can "develop to deny." 

NVLSP has reviewed many regional office and BVA cases in which the existing record before 

the VA supports the award of benefits, but instead of deciding the claim based on the existing 

record, VA has delayed making a decision on the claim by taking steps to develop additional 

evidence for the apparent purpose of denying the claim. Certain aspects of the current proposal -

for example, the restriction on the application of the duty to assist at the Board - will likely 

reduce such actions. 

There are also several parts ofS. 1024 that NVLSP strongly supports and that differ from 

its House bill counterpart. These welcome additions include provisions that: 

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make clear that, if a higher-level reviewer or the Board erroneously fails to identify a 

duty-to-assist error while reviewing a case, VA is not absolved of its obligation to correct that 

error. 

preserve judicial review by protecting the effective date of an award if a claimant files a 

supplemental claim after a decision by the Court of Appea ls for Veterans Claims. 

clarify that, if an appellant chooses the option of having a hearing before the Board, that 

will automatically include an opportunity to submit additional evidence. 

require higher-level reviewers and the Board to note in their decisions if evidence was 

received at a time not envisioned under the new system and describe how to have the evidence 

considered by VA. 

require VA to provide expedited treatment for claims that are returned or remanded to the 

Veterans Benefits Administration for correction of an error, regardless of which lane or docket 

the claimant chooses. 

allow VA to develop a policy to permit claimants to later modify the infom1ation 

specified in tl1eir notices of disagreement. 

allow VA to develop a policy to pem1it claimants to change lanes at the regional oflices 

and to change dockets at the Board. 

II. THE NEED TO RESIST VA'S EFFORTS TO AMENDS. 1024 

A. The Change VA Wants to Discourage Veterans From Appealing to the CAVC 

We understand that one amendment to S. I 024 supported by VA is to eliminate 

subsection (a)(2)(E) from the draft bill's amendments to 38 U.S.C. § 51 I 0. This subsection is 

critically important and NVLSP's support ofS. I 024 is contingent on this provision remaining 

intact. 

Proposed subsection (a)(2)(D) would allow a veteran to file a Section 5 108 supplemental 

claim which preserves the earliest possible effective date if the veteran receives a Board of 

Veterans' Appeals (BVA) denial and files the supplemental claim within one year of the BVA 

decision. Proposed subsection (a)(2)(E) mirrors proposed subsection (a)(2)(D) by allowing a 

veteran to file a Section 5108 supplemental claim which preserves the earliest possible effective 

date if the veteran loses his appeal to the Court of Appeals for Veterans Claims (CAVC) and 

fi les the supplemental claim within one year of the CAVC decision. We understand that VA 

supports proposed subsection (a)(2)(D), but wants to eliminate proposed subsection (a)(2)(E). 

If the BVA denies a claim under the draft bill - regardless whether proposed subsection 

(a)(2)(E) remains or is eliminated-- the veteran would be required, in order to preserve the 

earliest effective date, to choose within 120 days of the BVA decision between appealing to the 

CAVC and filing a supplemental claim with the RO. Eliminating subsection (a)(2)(E) would be 

unjust because it would put a heavy thumb on the scale when veterans make this choice. The 

veteran would have nothing to lose by filing a supplemental claim within one year of the BVA 

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denial because if the supplemental claim is denied, the veteran can keep the right to retroactive 

benefits alive by appealing. But if subsection (a)(2)(E) is eliminated, the veteran has a lot to lose 

by appealing to the CAVC. If the judicial appeal results in the court affinning the BY A's denial 

(as occurs in approximately 30% of all appeals), the veteran's right to retroacti ve benefits is lost 

forever. For a disabled veteran, this can mean losing the opportunity fo r tens of thousands of 

dollars. 

The explanation we received from VA for VA's objection to subsection (a)(2)(E) is that 

"it is contrary to VA policy interest in encouraging dissatisfied claimants to stay within VA 

unless it is truly necessary to go to a higher court." The flip side of this statement is the desire to 

discourage veterans from appealing to the CA VC, and discouraging appeals to the CA VC is 

exactly what eliminating subsection (a)(2)(E) would do. Veterans are not omniscient. In the 

short time they would have to choose between appealing to the CAVC and filing a supplemental 

claim, they would not know whether an appeal to theCA VC would be successful. In the 120 

days they have to decide whether to appeal a BY A decision to theCA VC, they also would be 

unlikely to know if"it is truly necessary to go to a higher court," as VA puts it. 

If subsection (a)(2)(E) is eliminated, the safest course of action would be to file a 

supplemental claim. The unfortunate result of VA's attempt to place a heavy thumb on the scale 

would be that veterans who should appeal to theCA VC will not. Instead, they will file a 

supplemental claim that will unnecessarily prolong the time the veteran's claim is on the hamster 

wheel. NVLSP strongly supported the Veterans' Judicial Review Act of 1988. We oppose this 

unwise effort to discourage veterans from appealing to the court that this important Act created. 

We note that the text of subsection (a)(2)(E) inS. 1024 differs from the text of subsection 

(a)(2)(E) in its House bill counterpart. NVLSP recommends that subsection (a)(2)(E) ofS. 1024 

be amended to confonn to the text of subsection (a)(2)(E) in its House bill counterpart. The 

version in S. I 024 raises, but does not answer two questions What happens if ( I) the veteran 

were to appeal a CAVC affim1ance of the BY A's decision to the Federal Circuit or (2) the VA 

were to appeal a CA VC decision favorable to the veteran to the Federal Circuit. In these 

situations would the veteran have to fi le a supplemental claim at the VA regional office while the 

appeal to the Federal Circuit is still pending in order to preserve the earliest effective date? If so, 

would the VA be required to process such a supplemental claim at the same time the VA is 

litigati ng the claim for the same benefit in the Federal Circuit? NVLSP recommends adherence 

to the version of subsection (a)(2)(E) in the House bill counterpart in order to eliminate these 

unanswered questions. 

B. VA 's Efforts to Escape Oversight of Its Processing of Legacy Claims 

S. I 024 wisely requires VA to report and the General Accounti ng Office to assess VA's 

plans for processing appeals on legacy claims. This is a critical issue. NVLSP would have much 

preferred that the S. I 024 structure the VA's decision-making on how to allocate its resources 

between new appeals and legacy appeals in a much more rigorous manner. But at least S. I 024 

would expose the VA 's plans on this issue to public view and GAO analysis. 

VA admits that it "has established a timeliness goal average of365 days in the Board 

non-hearing lane option" for new appeals. VA also candidly states that it "does not have an 

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established timeliness goal for legacy appeals." The VA obviously needs to make choices in 

allocating resources between processing legacy appeals and processing new appeals. 

For literally decades, Congress has required the BVA to process appeals in docket order. 

In other words, our nation's policy has long been that earlier filed appeals have precedence over 

later filed appeals. But contrary to this policy, the VA has made it quite plain that it plans to 

allocate its BVA resources so that appeals under the new system are decided before the large 

majority of the legacy appeals. NVLSP appreciates the steps that S. I 024 requires to ensure 

transparency in and analysis of the BVA allocation process between new and legacy appeals. 

But we believe Congress should provide an additional safeguard: a statutory minimum number 

oflegacy appeals that the BVA must adjudicate for every new appeal that it decides. In that 

way, VA would be prevented from unduly devoting resources to new appea ls, rather than to 

legacy appeals. 

Conclusion 

Thank you for this opportunity to present our views, and we would be pleased to respond 

to any questions that Members of the Committee may have. 

Contact lnfom1ation: 

National Veterans Legal Services Program 

1600 K Street, N.W. 

Suite 500 

Washington, DC 20016 

(202) 265-8305 

bart_stichman@nvlsp.org 

ron_ abrams@nvlsp.org 

s 
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PREPARED STATEMENT OF CAROLYN N. LERNER, SPECIAL COUNSEL, 

UNITED STATES OFFICE OF SPECIAL COUNSEL


517apOSC.eps
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PREPARED STATEMENT OF LIZ HEMPOWICZ, POLICY COUNSEL, PROJECT ON

GOVERNMENT OVERSIGHT


517apPOG1.eps
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517apPOG2.eps

fundamental theme became c lear: VA employees across the country feared they would face 

repercussions if they dared to raise a dissenting voice. 

Based on what POGO lcamcd from these whistleblowers, we wrote a letter to Acting VA 

Secretary Sloan Gibson in July 2014, highlighting three specific cases of current or fonner 

employees who agreed to share details about their personal experiences of retaliation after they 

had ra ised concerns about wrongdoing.3 

In Califomia, a VA inpatient phannacy supervisor was placed on administrative leave and 

ordered not to speak out after raising concerns with his supervisors about "inordinate delays" in 

delivering medication to patients and "refusal to comply with VHA [Veterans Health 

Administration] regulations.'>4 In one case, he said, a veteran's epidural drip of pain control 

medicatiou ran dry, and in another case, a veteran developed a high fever after he was 

administered a chemotherapy dmg after its expiration point. 

In Pennsylvania, a VA doctor was removed from c linical work and forced to spend his days in an 

office with nothing to do, he told POGO. This action occurred after he reported to his supervisors 

that, in medical emergencies, physicians who were supposed to be on call were fai ling or 

refusing to report to the hospital. The Office of Special Counsel (OSC) shared his concerns, 

writing "(w]c have concluded that there is a substantial likelihood that the information that you 

provided to OSC discloses a substantial and specirlc danger to public health and safety."5 

In Appalachia, a VA nurse was intimidated by management and forced out of her job after she 

raised concerns that patients with serious injuries were being neglected, she told POGO. In one 

case she was reprimanded for referring a patient to the VA 's patient advocate after weeks of 

being unable to arrange transportation for a medical test to detennine if he was in danger of 

sudden death. ln an email exchange with a POGO investigator she said, ''Such an upsetting thing 

for a nurse just to sec this blatant neglect occur almost on a daily basis. It was not only 

overlooked but appeared to be embraced." She also pointed out that there is "a culture of 

bullying cmployccs .... lt'sjust a culture of harassment that goes on if you report wrongdoing." 

That culture clearly isn't limited to just one or two VA clinics. Some people, including fonner 

employees who are now beyond the reach of VA management, were willing to be interviewed by 

POGO and to be quoted by name, but others said they contacted us anonymously because they 

were still employed at the VA and were worried about retaliation. One put it this way: 

''Management is extremely good at keeping things quiet and employees are very afraid to come 

forward." 

This kind of fear and suppression ofwhistleblowers who report wrongdoing often culminates in 

larger problems, as the VA experienced. 

3 Lcuer from Project On Government Oversight to Sloan D. Gibson, then-Acting Secretary of the Oepanment of 

Vetcmns Affairs, about Fear and Retaliation in the VA, July 21. 2014. http·//www.oogo org/ourwork/!cttcrs/20 I 4/oogo-letter-to-va-secretarv-about-va-employees-c!ajms.html 4 Letter from Kelly Robenson, Pharmacy Service Chief at Palo Alto VA Health Care System. to Earl S!Uan Kallio, 

Pharmacy Service. about Direct Order- Restricted Communication, June 20, 2014. 

s Leucr from Karen Gorman, Deputy Chief, Disclosure Unit Office of Special Counsel, to Dr. Thomas Tomasco, 

about Dr. Tomast.o's allegations OSC File No. 01-13-0416. Marth 21,2013. 
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517apPOG3.eps

Previous Legislation to Address Problems 

Previous laws failed to adequately protect whistlcblowcrs at the VA. Shifting the VA's culture to 

identify and correct risks to veterans' health and well-being cannot be accomplished without 

legislation that codifies accountability for those who retaliate against whistlcblowcrs. 

Last year, Congress passed legislation aimed at improving whistleblower protections and 

increasing the ability to bold those who retaliate against whistleblowers accountable. The 

Military Construction and Veterans Affairs Appropriations bill attempted to remedy the antiwbistleblower culture oftbe VA and strengthen wbistleblower protections, but it wasn't perfect 

legislation. 

POGO and other advocacy organizations raised concerns at the time about the creation of a 

Central Whistlcblowcr Office (CWO) within the V A.6 While it is clear that more resources are 

necessary to address the influx ofwhistleblower complaints, we believe this office would not be 

sufficiently independent to investigate whistleblower complaints. The legislation spelled out only 

that the CWO is not an clement of the VA Office of General Counsel, does not report to the 

General Counsel, does not provide the General Counsel with information regarding 

whistlcblowcr compla ins, and docs not advice the General Counsel's officc.

7 However, POGO's 

experi ence with whistleblowers from the VA showed us that more independence was necessary. 

The reluctance of employees at the VA to come forward to their own Office of the Inspector 

General (lG) demonstrated a culture of reta liation that would likely not be alleviated by the 

creation of another office with similar "independence" at the VA. Furthermore, without proper 

independence, we worried this office could become an internal clearinghouse that would help 

agency officials identify and retaliate against whistleblowers. 

Additionally, the office is tasked with investigating "all whistleblowcr complaints of the 

Department" made by VA employces.8 This created ambiguity regarding whether the drafters 

intended to maintain the previous standard that VA emplo~es have the option to go to an 

Inspector General, Member of Congress. or the Office of Special Counsel. By requiring that all 

investigations be conducted by one office, the language appeared to restrict access to other, more 

independent offices that bad previously been allowed. 

Overall, in the instance of the CWO, the benefits of streamlining do not outweigh the risks of 

priming a whistleblower for retaliation if their disclosure ends up in the wrong ear. 

Department of Vete rans Affairs Accountability and Whistlcblowcr Protection Act of 2017 

Last week, Senators Rubio, Tester, Isakson, Nelson, McCain, Shaheen, Moran, and Baldwin 

introduced a bipartisan bill aimed at reforming the VA 's whistlcblower procedures and 

accountability frameworks. TI1e Office of Accountability and Whistleblower Protection (OA WP) 

6 Elizabeth l-lcmpowicz. Project On Government Oversight, 'Testimony of Liz l-lempowicz, Pub! ic Policy Associate 

Project On Government Oversight before the Senate Committee on Veterans· Affairs Legislative Hearing (Health 

and Benefits).·· hup:l/www.oogo.org/our-work/tcstimony/20 I 5/oogos-liz-hemoowicz-whistleblowcr-protcetionsu..h!m.!: Concerned Groups 10 Senate: Remove Measure in CR that Poses Risks to VA Whist cblow~rs. Project On 

Government Oversiglll. September 27. 2016. hup·/lwww pogo oralabout!prcss-roomlreleasesf20161Senate-RcmoveMeasurc-Posing-Risks-VA-Whistleblowers.html 7 38 u.s.c. § 732 (h)( I) 

• 38 u.s. c. § 732 (h)(2) 

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517apPOG4.eps

created by this legislation to replace the CWO would alleviate many of the concerns that POGO 

had with the previous office. 

The office would be nm by a presidentially appointed and Senate-con finned official who reports 

directly to the Secretary of the VA, a process that insulates the offi.ce from the VA as a whole. 

This insulation provides the space necessary to conduct unbiased investigations. 

Moreover, the legislation defines the mission of the OA WP in a way that addresses the 

ambiguity problem in the CWO mission: the OA WP accepts whistleblower disclosures, but docs 

not exercise sole jurisdiction over VA whistleblower complaints or investigations. Instead it is 

empowered to refer complaints to a relevant investigative body, such as the Office of the 

Medical Inspector or the IG, while maintaining some investigative jurisdiction as appropriate. 

In addition to fixing a number of the problems inherent to the CWO, the legislation creates a 

whistlcblowcr office with built-in accountability functions. The office is tasked with tracking and 

recording the implementation of find ings and recommendations of the IG, the Medical Inspector, 

OSC, and the Comptroller General. It is also tasked with tracking and aggregating whistleblowcr 

disclosures made by VA employees across multi ple platforms in order to identify trends and 

issue reports to the Secretary. This is similar to what POGO did on a smaller scale in 2014.

9 This 

project helped us identify key areas ripe for reform at the VA, and the VA would benefit from 

conducting similar ana lysis regularly. 

Finally, the OA WP is required to file an annual report to the relevant Congressional committees 

about the office's activiti es. The annual report must include the issues and trends the office 

identified, analysis of the office's resources, and recommendations for legislative or 

administrative changes to improve whistleblower protections at the VA. 

The statutory authorities provided by Title I of this legislation to act in the best interest of 

whistl eblowcrs at the VA and to fonnu late and advance policies that will benefit whistlcblowers 

and veterans a like are a significant improvement over previous attempts to address the issues at 

the VA. 

Recommendations 

It is POGO's hope that the Department of Veterans Affairs Accountability and Whistleblowcr 

Protection Act of2017 will ensure that whistleblowers can expose wrongdoing, confident that 

their disclosures will be independently investigated and that they will not be made targets for 

retaliation. 

Title l of this bill is full of necessary reforms. That said, there a re a few changes to the overall 

bill that should be made before it becomes taw, in order to ensure the bill doesn't inadvertently 

weaken civil service protections for employees at the VA. 

Significantly, both sections 201 and 202 of this bill detail the procedures for disciplining Senior 

Executives and employees at the VA. Both sections allow a window of 7 business days for an 

employee to respond to a notice of removal. This is unreasonably and unnecessarily short and 

9 Lydia Dennett. ••fear and Retaliation at the VA;' Project On Govenunent Oversight. July 21, 20t4. 

http·//www.oogo.or&lgur-work/artjc!es/?O (4/fcar-and-retaliation·at-the-va htmt 
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517apPOG5.eps

cannot be considered an adequate time frame to provide fair due process rights to respond to 

such a notice. Considering how important due process is in the civil service, and that we have 

seen instances where whistlcblowers arc targeted when there arc weak civi !-service protections, 

this is a substantial point of conccm. This time frame must be extended to a minimum of 14 

business days. Additionally, the bill reduces the time period in which an employee has to appeal 

to the Merit Systems Protection Board (MSPB) to 10 business days, which is similarly 

umeasonable and u1mecessarily lin1its due process rights currently enjoyed by civil service 

employees. to The US Court of Appeals for the Federal Circuit recently struck down similar 

changes to MSPB access in removal actions.tt We recommend that section be removed from the 

bill. 

Furthennore, understanding that the intent behind this legislation is to improve whistleblower 

protections at the VA. POGO encourages you to upda1e the definition of"whistleblower 

disclosure" in section 101. Your colleagues in the House have recognized that limiting a 

protected whistleblower disclosure to one that evidences a violation of a provision of law creates 

an unnecessary loophole and complicates enforcement of whistlcblowcr protections.t2 By 

expanding the language to include infonnation that evidences violations of rules or regulations as 

part of a protected whistleblower disclosure, you can help better protect whistlcblowcrs and close 

this loophole. 

Finally, we urge Congress to extend whistleblower protections to contractors and veterans who 

raise concerns about medical care provided by the VA. POGO's investigation found that both of 

these groups also fear retaliation, which prevents them from coming forward. In addition, a 

veteran who is receiving poor care should be able to speak to his or her patient advocate without 

fear of retaliation, including a reduction in the quality ofhealtll care. Veterans should not fear 

that they will lose access to their medications for blowing the whistle on problems they've 

experienced at VA hospitals or clinics. Without this reassurance, there is a disincentive to report 

poor care, allowing it to continue uncorrected. 

Conclusion 

The VA and Congress must work together to end the culture of fear and retaliation. 

Whistlcblowers who report concerns that affect veteran health must be lauded, not shunned. And 

the law must protect them. It is POGO's hope that the Department of Veterans Affairs 

Accountability and Whistleblower Protection Act of 2017 will ensure that whistlcblowcrs can 

step forward to expose wrongdoing, confident that it will not result in retali ation. 

10 5 U.S.C. § 770t (c)(tXA} 11 Helman v. OVA, 20t5·3086, 20t7 U.S. App. LEXIS 8 177 (Fed. Cir. May 9, 20t7) 12 House of Representatives, "Follow the Rules Act"' (H.R. 657), introduced January 24. 2017. by Representative 

Sean Dufly. https://www.congress.govlbilll t 15th-consress/house-billl657/tcxt (Downloaded May 15, 20 17} 

(Amending a protected action taken by civil service employees to "'refusing to obey an order that would require the 

individual to violate a law, rule. or regulation:'} 

5 
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PREPARED STATEMENT OF PARALYZED VETERANS OF AMERICA

CHAIRMAN ISAKSON, RANKING MEMBER TESTER, AND MEMBERS OF THE COM- MITTEE, Paralyzed Veterans of America (PVA) would like to thank you for the opportunity to submit our views on legislation pending before the Committee. 

S. 23, THE ‘‘BIOLOGICAL IMPLANT TRACKING AND VETERAN SAFETY ACT OF 2017’’ 

S. 23 intends to have the VA adopt and implement a standard identification protocol for use in the tracking and procurement of biological implants by the Department of Veterans Affairs, and for other purposes. While we understand and generally support some of the provisions of this legislation, PVA objects to the provisions of the draft legislation that would exclude the purchase of biological implants 

from the authority of title 38 U.S.C., Section 8123. 

Section 8123 states, ‘‘the Secretary may procure prosthetic appliances (which includes surgical biological implants) and necessary services required in the fitting, 

supplying, and training and use of prosthetic appliances by purchase, manufacture, 

contract, or in such other manner as the Secretary may determine to be proper, 

without regard to any other provision of law.’’ 

The Federal Acquisition Regulations (FAR) were issued pursuant to the Office of 

Federal Procurement Policy Act of 1974. Statutory authority to issue and maintain 

the FAR resides with the Secretary of Defense, the Administrator of General Services, and the Administrator, National Aeronautics and Space Administration—agencies that do not bear the responsibility of providing lifelong care for disabled veterans. However, the VA does bear the heavy weight of that responsibility. 

With this in mind, it is important to note the distinction between VA’s responsibility to meet specialized needs versus a Federal agency’s responsibility to respond 

to emergency needs. The FAR provides for procuring prosthetics in cases where, for 

example, a natural disaster damaged a veteran’s equipment. However, the writers 

who formulated the FAR in 1974 recognized there was a need for special provisions 

under which VA could purchase prosthetics for disabled veterans with specialized 

needs in a timelier manner than the FAR allowed, irrespective of whether a bona 

fide emergency existed. The authors of the FAR recognized this fact and the need 

for Section 8123 as evidenced by the fact that it is referenced in the FAR. This was 

reconfirmed in subsequent updates and amendments to the FAR. 

Unfortunately, this S. 23 seems to imply that the Federal Supply Schedule and 

the FAR is all that is needed to procure Prosthetic appliances (biological implants) 

and services based on a misunderstanding of the difference between ‘‘specialized 

needs’’ and ‘‘emergency needs.’’ Rather than erode a clinician’s ability to acquire 

these prosthetics in a timely manner or manipulate how these prosthetics are defined in order to exclude them from the authority of Section 8123, we believe that 

the legislation should focus on accountability and oversight. It should not be making 

efforts to overturn a system that has served veterans well for over half a century. 

We encourage the removal of the provision of the legislation that eliminates the authority of Section 8123. 

S. 112, THE ‘‘CREATING A RELIABLE ENVIRONMENT FOR VETERANS’ DEPENDENTS ACT’’ 

PVA supports S. 112, the ‘‘Creating a Reliable Environment for Veterans’ Dependents Act.’’ 

Currently, the VA Grant and Per Diem program does not reimburse VA-funded 

facilities for services provided to a homeless veteran’s dependent. This bill would 

allow VA to reimburse facilities who care for the child of a veteran receiving care 

at a shelter funded through VA. 

Veteran homelessness remains a serious problem. Children of homeless veteran 

parents can be turned away from receiving care at the very facilities where their 

parents are expected to seek services to get themselves and their families back on 

their feet. The supportive housing and service centers also provide case management, education, crisis intervention, and specialized services to homeless women 

veterans. 

Congress must ensure VA is able to provide consistent, reliable services to veterans whose lives are in upheaval. Denying access for dependents does nothing but 

add more uncertainty for veterans in need stable circumstances for their families. 

While PVA supports this legislation we urge Congress to see that VA is adequately 

resourced to provide these reimbursements. 

S. 324, THE ‘‘STATE VETERANS HOME ADULT DAY CARE IMPROVEMENT ACT OF 2017’’ 

PVA supports S. 324, a bill that would provide ‘‘no cost’’ medical model adult day 

health care (ADHC) services to veterans who are 70 percent or more service-conVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00176 Fmt 6601 Sfmt 6621 Z:\ACTIVE\051717.TXT PAULIN
173 

nected disabled. By authorizing the Secretary to enter into agreements with state 

veterans homes the bill would provide ADHC to those veterans who are eligible for, 

but do not receive, skilled nursing home care under section 1745(a) of title 38, 

U.S.C.. Currently, VA pays State Homes a per diem for ADHC. The per diem rate 

covers around one-third the cost of the program. S. 324 is an extension to the Veterans Benefits, Health Care, and Information Technology Act of 2006 (Pub. L. 109– 

461), which provides ‘‘no cost’’ nursing home care at any State Veterans Home to 

veterans who are 70 percent or more service-connected disabled. This means that 

currently there are some veterans making a choice between 100% free nursing home 

care or expensive, out of pocket ADHC. The payment to a state home under this 

legislation would be 65 percent the amount payable to the state home if the veteran 

were an inpatient for skilled nursing care. 

Adult day health care is a crucial service that allows veterans to remain in their 

homes and communities by delaying entry into traditional nursing care. While a veteran may need long-term services and supports, it is not necessarily the case those 

must be received in an institutional setting. Rather, a veteran can receive comprehensive medical care and socializing without the disruption of leaving their 

home. The program is staffed by a team of multi-disciplinary healthcare professionals who evaluate each participant and customize an individualized plan of care 

specific to their health and social needs. ADHC is designed to promote social stimulation and maximize independence while also receiving quality of life nursing and 

personal care services. 

Additionally, we know that the wellbeing of a caregiver directly impacts the quality of care they provide to the veteran. ADHC allows caregivers the means the ability to meet other professional and family responsibilities. Especially for those caregivers whose veteran was injured before 9/11 and is not eligible for the VA Comprehensive Caregiver Program, ADHC offers critically needed support. 

Delaying institutional settings for veterans with long term care needs is the rare 

jewel in health care, it is the least costly care and the best care for certain populations. ADHC saves the taxpayer, is the most appropriate care for some sick and 

disabled veterans, and allows spouses, children, parents, and communities more 

time together. 

S. 543, THE ‘‘PACT ACT’’ 

PVA has no formal position on the ‘‘Performance Accountability and Contractor 

Transparency Act’’ at this time. 

S. 591, THE ‘‘MILITARY AND VETERAN CAREGIVER SERVICES IMPROVEMENT ACT OF 2017’’ 

PVA strongly supports S. 591, the ‘‘Military and Veteran Caregiver Services Improvement Act of 2017.’’ No group of veterans understands the importance of caregivers more than PVA members and their families. 

This legislation would expand VA’s Comprehensive Family Caregiver Program to 

veterans of all eras. Currently, a veteran is eligible if they require the services of 

a caregiver due to an injury incurred in service on or after September 11, 2001. This 

date of eligibility, and the exclusion of service-connected illnesses, is unjust and indefensible. As many as 70,000 veterans (with estimates as high as 88,000) would 

be eligible for the Comprehensive Family Caregiver Program if the September 11, 

2001 date was eliminated as a barrier. Expansion would make available the resources that caregivers need to provide quality care to veterans. These resources include a monthly stipend based on the hours of care provided, healthcare through 

CHAMPVA, respite care, additional training, and paid travel expenses to and from 

veterans’ medical appointments. 

Caregivers play the most critical role in maintaining the wellbeing of a catastrophically disabled veteran. From activities of daily living, to psycho-social interaction, to maintaining health to prevent institutional care- these caregivers have 

been sacrificing their own financial and physical wellbeing to care for veterans, with 

little to no support from VA. Congress has no justification for denying access to veterans because of the date of injury or denying those of any era who were made ill 

as a result of service. This legislation would rectify this inequity. 

Additionally, the Military and Veteran Caregiver Services Improvement Act would 

make the program more inclusive of mental health injuries; reauthorize the Lifespan Respite Care Act and expand essential respite options for caregivers; give veterans the opportunity to transfer GI Bill benefits to a dependent, to help unemployed or underemployed spouses of injured veterans prepare to become the primary 

income for the family; make caregivers who work in the Federal Government eligible for flexible work schedules; provide assistance with childcare, financial advice 

and legal counseling, which are all top, and currently unmet, needs. 

174 

The majority of catastrophically injured, service-connected veterans who rely on 

a caregiver for their daily living are ineligible for the Comprehensive Caregiver Program. Moreover, the need for a caregiver is not lessened simply because a veteran’s 

service left him or her with a catastrophic illness, rather than an injury. PVA is 

pleased to see that S. 591 includes catastrophic illness as a program qualifier. For 

PVA’s members, a spinal cord disease is no less devastating than a spinal cord injury. Veterans that have been diagnosed with Amyotrophic Lateral Sclerosis (ALS) 

and Multiple Sclerosis (MS) will eventually experience significant decline in their 

ability to perform activities of daily living and unquestionably become dependent on 

a caregiver. 

Pre–9/11 caregivers have provided decades of uncompensated work to our disabled 

veterans, often with no support services of any kind and at the expense of their own 

health and livelihood. A study by the Rand Corp. in 2014 estimated that veterans’ 

caregivers save taxpayers $3 billion a year. 

When Congress says the cost of expansion of the program is prohibitive they suggest financial burden for caregivers is not prohibitive, that the insecurity of their 

lives is a just consequence of their family’s sacrifice. They are paying for what Congress should, and what Congress does when injured after 9/11. Ensuring that a veteran is able to reside in their home, in their community, has been shown time and 

again to reduce medical complications, hospital stays, and costs. At the same time, 

the veteran and their family maintain a psychosocial wellness that is impossible to 

achieve in an institution. 

PVA understands the costs concerns with expanding the program but believes 

doing right by veterans is more important, and hopes Congress will believe so too. 

At the same time, we challenge the very premise of the concerns about cost. While 

Congress generally ignores the principles of ‘‘dynamic scoring’’ except when it is politically expedient, consider the cost of providing caregiver services versus the cost 

of institutional services. For catastrophically disabled veterans, if their caregiver 

can no longer afford to continue, or has suffered their own injury, their veteran has 

no option but to be placed in an institutional setting. Consider the long term cost 

savings for the taxpayer by providing caregivers the ability to delay their veteran’s 

admittance to a nursing home. In a VA nursing home the VA spends, on average, 

$366,000 per veteran, per year. In a community nursing home the cost averages 

$86,000 per veteran, per year. At a state veteran’s home, costs average $45,000 per 

veteran, per year. Meanwhile, the average costs under the Comprehensive Family 

Caregiver Program is $36,000 per veteran, per year. Expansion could save the Federal Government between approximately $2.5 billion and $7.0 billion in a given 

year. Moreover, the health outcomes and quality of life experienced by veterans 

served at home by caregivers outperforms any institutional measure. 

The exclusion of ‘‘serious illnesses and diseases,’’ and the use of the ‘‘date of injury’’ as eligibility requirements for such an important program are indefensible. As 

a result, the veterans and their families suffer. Congress continues to find excuses 

to deny access. It has never been more urgent for those excuses to stop. As the largest cohort of veterans (Vietnam-era) ages, the demand for long-term care resources 

will continue to grow significantly. Catastrophically injured veterans will require 

the most intensive and expensive institutional care. By providing their caregivers 

the means to care for the veterans at home with family, they will delay the costs 

of institutional care. But most importantly, these veterans will have more time at 

home, in their communities, and among those they love. 

S. 609, THE ‘‘CHIROPRACTIC CARE AVAILABLE TO ALL VETERANS ACT OF 2017’’ 

PVA supports S. 609, the ‘‘Chiropractic Care Available to All Veterans Act of 

2017.’’ Chiropractic care is a widely accepted and invaluable medical treatment. 

This bill would establish a program for the provision of chiropractic care and services at all medical centers by 2020. Likewise, it would see that ‘‘chiropractic services’’ be included in title 38, United States Code, as a medical service, a rehabilitative service, and a preventative health service. 

The process of integrating chiropractic care into VA health care has been slow. 

At least 65 VA medical centers have chiropractors on site, integrated into the care 

teams. Approximately 52 percent of veterans returning from Iraq and Afghanistan 

are seeking care because of musculoskeletal ailments, specifically back and joint 

pain. The common causes for these chronic pains are heavy gear, vehicle accidents, 

and blast injuries. The overwhelming majority of affected veterans still do not have 

readily available access to chiropractic care. 

With an ever present awareness of VA overreliance on pharmacological solutions 

for chronic pain and the resulting trends of opioid dependence and accidental overdose, PVA strongly encourages the utilization of alternative treatments. At the same 

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time we would encourage a less prescriptive approach. It is possible that not every 

VA medical center will have need of chiropractic services. 

S. 681, THE ‘‘DEBORAH SAMPSON ACT OF 2017’’ 

PVA supports S. 681, the ‘‘Deborah Sampson Act of 2017.’’ This bill would help 

to address some of the quality of care barriers that are unique to women veterans. 

From transition services, to health care access, to the availability of prosthetics, this 

bill is a critical and timely step to enhancing the health and well-being of women 

veterans and their families. As women veterans are the fastest growing population 

of veterans, we urge Congress to enable VA to fully meet the needs for specialized 

services for women. 

This bill would initiate a pilot program for peer-to-peer counseling for women veterans transitioning out of the military and make permanent the availability of readjustment counseling services in group retreat settings. Of the existing readjustment 

counseling retreats provided through VA, participants consistently showed better 

understanding of how to develop support systems and to access resources at VA and 

in their communities. The OEF/OIF women veterans at the existing retreats are 

most often coping with effects of severe Post-Traumatic Stress and Military Sexual 

Trauma. They work with counselors and peers, building on existing support. If needed there is financial and occupational counseling. These programs are marked successes and the feedback is overwhelmingly positive for women veterans, who show 

consistent reductions in stress symptoms as a result of their participation. Other 

long lasting improvements included increased coping skills. It is essential for women 

veterans that Congress make this program permanent. We believe the value and efficacy is undeniable. 

The legislation would also direct VA to partner with community organizations to 

provide support services for women veterans needing assistance, particularly prevention of eviction, child support issues, and the restoration of driver’s licenses. 

The bill would authorize hospital stays of up to 14 days for newborns under VA 

care. The current provision allows a maximum stay of seven days. As the average 

stay for a healthy newborn is two days, any newborn needing additional coverage 

is likely to be facing complications immediate after birth or a severe infant illness. 

The current seven day coverage is in a non-department facility for eligible women 

veterans who are receiving VA maternity care. Beyond the seven days, the cost of 

care is the responsibility of the veteran and not VA, even if complications require 

continued care beyond the coverage period. Post-natal health is critical to newborn 

health which directly impacts the lives and wellbeing of veterans and their families. 

PVA is particularly concerned about those veterans with catastrophic injuries or 

mental illnesses that can cause high-risk pregnancies or pre-term deliveries. A 

seven day limit arguably impacts veterans with disabilities at a greater rate than 

other veterans. Extending newborn coverage to 14 days is the right thing to do. 

The legislation aims to eliminate barriers to care by ensuring every facility has 

at least one full-time or part-time women’s health provider. An additional $20 million would be authorized to carry out the retrofitting of existing facilities to improve 

privacy, safety and environmental needs for women veterans. Finally, the bill would 

require data collection and reporting by gender and minority status on VA programs 

serving veterans. PVA is pleased to see the reporting requirement of prosthetic 

availability for women veterans. 

S. 764, THE ‘‘VETERANS EDUCATION PRIORITY ENROLLMENT ACT OF 2017’’ 

PVA supports this measure. Education benefits as administered are calculated to 

fund a veteran through the completion of a standard four-year course of study resulting in a degree. In some cases, a student is unable to register for a prerequisite, 

which in turn leaves them unable to advance on schedule in that degree program. 

When this happens, the student veteran now must continue his or her course of 

study beyond the enrollment period covered by GI Bill benefits. Such a result dilutes 

the overall value of the benefit when the veteran does not earn the degree the assistance was intended to cover, and it simultaneously wastes government money 

while the veteran, unable to secure a spot in a relevant course, takes unnecessary 

classes to pass the time. 

Not getting a seat in a class might be due to pure luck of the draw, but often 

veterans have substantially different circumstances than traditional students that 

complicate the course selection process. If a servicemember in the National Guard 

or a Reserve Component gets called away for duty, he or she should have priority 

enrollment to ensure they have the ability to quickly get back on track. Many veterans might also be coming to school at a later point in their lives and have famiVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00179 Fmt 6601 Sfmt 6621 Z:\ACTIVE\051717.TXT PAULIN
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lies. Veterans should not be penalized for trying to fit courses in around other significant obligations such as caring for children. 

The evidence already exists that offering veterans priority enrollment is feasible 

and important. Many private universities already offer priority enrollment, and 

some states such as Pennsylvania, California and Ohio require it to be offered in 

all publicly-funded institutions. 

S. 784, THE ‘‘VETERANS’ COMPENSATION COST-OF-LIVING ADJUSTMENT ACT OF 2017’’ 

PVA supports S. 784, the ‘‘Veterans’ Compensation Cost-of-Living Act of 2017,’’ 

which would increase, effective as of December 1, 2017, the rates of compensation 

for veterans with service-connected disabilities and the rates of dependency and indemnity compensation (DIC) for the survivors of certain disabled veterans. This 

would include increases in wartime disability compensation, additional compensation for dependents, clothing allowance, and dependency and indemnity compensation for children. 

S. 804, THE ‘‘WOMEN VETERANS ACCESS TO QUALITY CARE ACT OF 2017’’ 

PVA supports S. 804, the ‘‘Women Veterans Access to Quality Care Act of 2017.’’ 

This bill would establish structural standards in VA health care facilities that are 

necessary to meet the health care needs of women veterans. Implementation of this 

bill would generate a report to the House and Senate Veterans’ Affairs Committees 

listing the facilities that fail to meet these standards and the projected cost to do 

so. VA would be required to publish the health outcomes of women in each facility, 

juxtaposed with the men that facility serves. VA would be required to hire a fulltime obstetrician or gynecologist at every VA Medical Center, and pilot an OB-GYN 

graduate medical education program to increase the quality of and access to care 

for women veterans. 

The women veteran population who use VA health care doubled between 2003 and 

2012, from 200,631 to 362,014. By 2040, it will have doubled again. Given this projection, VA must increase their capacity to meet the needs of women veterans. This 

legislation is a crucial step in assessing the quality of care women veterans receive 

and the steps needed to improve it. 

S. 899, THE ‘‘DEPARTMENT OF VETERANS AFFAIRS VETERAN

TRANSITION IMPROVEMENT ACT’’ 

PVA supports S. 899, the ‘‘Department of Veterans Affairs Veteran Transition Improvement Act.’’ Currently, new Title 5 employees with a thirty percent or higher 

service-connected disability rating are entitled during their first twelve-month period of employment to leave for purposes of undergoing medical treatment related 

to such disability. PVA supports this bill which would apply the same entitlement 

to health care professionals under 38 U.S.C. § 7401(1). 

S. 1024, THE ‘‘VETERANS APPEALS IMPROVEMENT AND MODERNIZATION ACT OF 2017’’ 

PVA employs a highly-trained force of over 70 service officers who develop veterans’ claims for both member and non-member clients. These frontline employees 

spend a minimum of two years in specialized training. We maintain a national appeals office staffed by attorneys and legal interns who represent clients at the Board 

of Veterans’ Appeals (Board). We also have attorneys who practice before the Board, 

the Court of Appeals for Veterans Claims (CAVC), and the United States Court of 

Appeals for the Federal Circuit. Of all the major Veteran Service Organizations 

(VSO), only PVA offers such continuity of representation throughout subsequent appellate review. 

Our most important attribute, though, is that our service officers and attorneys 

consistently advocate for catastrophically disabled veterans. Complex claims are the 

norm, not the exception. As we attempt to bring greater efficiency to the claims and 

appeals system, our perspective is geared toward ensuring that the due process 

rights of the most vulnerable among us—those most deserving of benefits—are not 

watered down for the sake of expediency. To reinforce this position, we would advise 

the Committee to include a sense of Congress or other preamble with this legislation 

indicating that no part of the new framework should be read to abrogate or displace 

the non-adversarial nature of VA claims adjudication. An overhaul of this size and 

scope invites subsequent litigation and new legal interpretations. Clarifying this 

point with direct legislative history on the subject would be an easy but important 

effort. 

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Background 

The number of pending appeals is approaching 500,000. VA projects that if we fail 

to address the process, within a decade the average wait time for resolving an appeal will reach 8.5 years. We believe reform is necessary, and we support this legislation moving forward. 

There is no shortage of news articles and academic pieces that attempt to illustrate for readers the level of complexity and redundancy in the current appeals process. It is a unique system that has added layer after layer of substantive and procedural rights for veterans over the years. The most notable aspect differentiating it 

from other U.S. court systems is the ability for a claimant to inject new evidence 

at almost any phase. While this non-adversarial process offers veterans the unique 

ability to continuously supplement their claim with new evidence and seek a new 

decision, it prevents VA from accurately identifying faulty links in the process, 

whether it be individual raters or certain aspects of the process itself. 

It is important that as we approach this major issue that we do not lose sight 

of the fact that veterans have earned these benefits through the highest service to 

their country and have every right to pursue these earned benefits to the fullest. 

As we promote and seek public support for change, it is easy to use statements such 

as, ‘‘there are veterans who are currently rated at 100% who are still pursuing appeals,’’ to illustrate the problems that pervade the system. PVA will be the first to 

point out, though, that a veteran rated at 100% under 38 U.S.C. § 1114(j) might also 

be incapacitated to the point that he or she requires 24 hour caregiver assistance. 

A 100% service-connected disability rating does not contemplate the cost of this 

care, and veterans may seek special monthly compensation (SMC) to the tune of 

thousands of dollars needed to address their individual needs. Few people would disagree that pursuing these added disability benefits are vital to a veteran’s ability 

to survive and maintain some level of quality of life. Without clarification, such 

statements lead people to believe that veterans are the problem. 

This is why PVA believes it is so important to ensure that VSO’s remain as involved in the follow-on development process and implementation as they are now 

if this plan is to succeed. This is a procedural overhaul, and VSO’s are the bulwark 

that prevents procedural change from diluting the substantive rights of veterans. 

The Framework 

As the working group came together and began considering ways to address the 

appeals inventory, it became clear that a long-term fix would require looking beyond 

appeals and taking a holistic view of the entire claims process. The work product 

in front of us today proposes a system with three distinct lanes that a claimant may 

enter following an initial claims decision—the local higher-level review lane, the 

new evidence lane, and the Board review lane. The work horse in this system is 

the new evidence lane. The other two serve distinct purposes focused on correcting 

errors. A decision to enter any of the lanes must be made within one year of receiving the previous decision. Doing so preserves the effective date relating back to the 

date of the original claim—a key feature of this new framework. 

When a claimant receives a decision and determines that an obvious error or oversight has occurred, the local higher-level review lane, also known as the difference 

of opinion lane, offers a fast-track ability to have a more experienced rater review 

the alleged mistake. Review within this lane is limited to the evidence in the record 

at the time of the original decision. It is designed for speed and to allow veterans 

with simple resolutions to avoid languishing on appeal. 

If a claimant learns that a specific piece of evidence is obtainable and would help 

him or her succeed on their claim, the new evidence lane offers the option to resubmit the claim with new evidence for consideration. VA indicates that its goal is a 

125-day turn around on decisions within this lane. Another important aspect is that 

the statutory duty to assist applies only to activity within this lane. This is where 

VA will concentrate its resources for developing evidence. 

The third lane offers an appeal to the Board. Within this lane there are two 

tracks with separate dockets. One track permits the addition of new evidence and 

option for a Board hearing. The other track permits a faster resolution by the Board 

for those not seeking to supplement the record. A claimant within this track will 

not be permitted to submit new evidence, but they will have an opportunity to provide a written argument to accompany the appeal. 

If the claimant receives an unfavorable opinion at the Board, he or she may either 

revert to the new evidence lane within one year or file a notice of appeal with the 

CAVC within 120 days. Notably different from earlier versions of this legislation, 

this draft bill would preserve the claim’s effective date even after an adverse decision at the Court. 

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Concerns Specific to the Framework 

Throughout the development of this new framework, PVA’s biggest concern has 

been the proposed dissolution of the Board’s authority to procure an independent 

medical examination or opinion (IME) under 38 U.S.C. § 7109. An IME is a tool used 

by the Board on a case-by-case basis when it ‘‘is warranted by the medical complexity or controversy involved in an appeal case.’’ § 7109(a). The veteran may petition the Board to request an IME, but the decision to do so remains in the discretion 

of the Board. The Board may also request an IME sua sponte. Experienced Board 

personnel thoroughly consider the issues which provoke the need for an outside 

opinion. Complicating the process further, the CAVC has carefully set parameters 

for the proposed questions to be answered by experts. A question presented to a 

medical expert may be neither too vague, nor too specific and leading. A question 

too vague renders the opinion faulty for failing to address the specific issue, while 

a question too specific tends to lead the fact finder to a predisposed result. 

The standard for granting such a request is quite stringent. 38 CFR 3.328(c) 

states, ‘‘approval shall be granted only upon a determination...that the issue under 

consideration poses a medical problem of such obscurity or complexity, or has generated such controversy in the medical community at large, as to justify solicitation 

of an independent medical opinion.’’ The number granted each year usually amounts 

to no more than one hundred, with approximately fifty percent of those IME’s being 

requested by the Board itself. The regional offices have long held a companion authority under 38 U.S.C. § 5109. Incredibly, in a room full of practitioners convened 

in March 2016 as part of this current reform process, not one among them could recall an instance of a rating officer requesting an IME. And yet the original proposal 

was to eliminate the Board’s authority to procure an IME and rely solely on a rating 

officer exercising his or her authority under § 5109. 

VA’s rationale for dissolving this authority is primarily based on having all development of evidence take place at the Agency of Original Jurisdiction (AOJ) level in 

the New or Supplemental Evidence Lane. This unwavering desire to rid the Board 

of any development stems in part from an attempt to exploit its experienced Veteran 

Law Judges (VLJ) to the greatest possible extent. VLJ’s who adjudicate appeals are 

a human capital commodity and form a critical component of the system. Because 

employees and outside attorneys cannot reach the experience and qualifications of 

a VLJ overnight, VA is limited in its ability to scale this particular resource simply 

by hiring new employees. 

These concerns are valid to a degree, and we have worked with officials to find 

a solution that allows the Board to realize the benefit of making the best use of 

VLJ’s while attempting to preserve the beneficial aspects of IME’s procured by the 

Board. Part of the mitigating measures are reflected in this draft bill’s proposed 

amendments to 38 U.S.C. § 5109, permitting the Board to remand specifically for 

procurement of an IME and requiring the VLJ to articulate the specific questions 

to be presented to the expert. 

We applaud the Committee’s change to the remand language. In earlier versions 

of this legislation, the Board would only be permitted to remand for an IME if it 

determined an error existed on the part of the AOJ to satisfy its duty to assist 

under 38 U.S.C. § 5103A. Since the duty to assist is necessarily inconsistent with 

the discretionary nature of an IME, this circumstance would never arise, and IME’s 

would come to a halt. Using an abuse of discretion standard instead fixes this issue. 

Dissolving § 7109 would have the additional effect of abolishing the centralized office of outside medical opinions. This small staff has played a vital role in facilitating IME’s and maintaining their effectiveness by developing relationships with 

doctors who are experts on particular subjects and willing to do this tedious task 

for almost no money. This office not only expedites the receipt of opinions, but it 

also ensures a high level of quality. VA has committed verbally to PVA that it will 

preserve this resource by moving it from the Board and placing it under VBA’s management, in essence making it available to the AOJ going forward. 

The decreased efficiency with having the process conducted at the AOJ level is 

also concerning. Instead of the VLJ requesting an IME and receiving the opinion, 

now a second person must review the claim—the rating officer who received the file 

on remand. If a veteran wishes to appeal this re-adjudication, we have asked for 

and received VA’s commitment to reroute the appeal by default, with exceptions, 

back to the same VLJ who remanded the case to avoid yet another person from having to review a claim with enough medical complexity to warrant the IME. Unless 

this Committee is willing to outright preserve § 7109, we would strongly recommend 

that the Committee conduct oversight on these specific commitments by VA, perhaps as part of the increased reporting requirements. 

We also recommend an additional jurisdictional safeguard for the Board. In 38 

U.S.C. § 7104, it would be helpful to include language that addresses situations 

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where the Board finds that an appeal presents extraordinary circumstances. The 

Board, in its sole discretion, should be able to retain jurisdiction over a remand of 

that appeal. 

Some stakeholders have expressed concern over the replacement of the ‘‘new and 

material’’ evidence standard with ‘‘new and relevant.’’ It is true that there are a 

number of appeals in the system currently disputing a decision that evidence submitted was not deemed ‘‘material.’’ The stated concern is that changing ‘‘material’’ 

to ‘‘relevant’’ will simply exchange one appealable issue for another. While it is a 

fair point, ‘‘relevant’’ is a significantly lower legal threshold and as higher numbers 

of veterans meet this threshold, it should correlate to fewer appeals. Those expressing concern propose having VA simply accept all ‘‘new’’ evidence and make a decision. Under this proposal, if the evidence is so weak that it is not even relevant, 

then VA can easily deny the claim. For every denial, VA will be required to do the 

work of providing the improved notice explaining its decision. Conversely, a legal 

determination that new evidence is not relevant would not be subject to this requirement, thus a reduced workload for VA. PVA believes ‘‘new and relevant’’ is an 

acceptable standard for veterans to meet. But at this point, it is unclear whether 

dealing with continued appeals on relevance determinations or processing improved 

notice for denials will lead to a greater aggregate negative impact on the system. 

Earlier objections were raised concerning the specificity with which a veteran was 

required to identify issues of fact or law being contested on appeal in a notice of 

disagreement. At first glance, the prior language appeared to be quite ‘‘legalese,’’ requiring a sophisticated level of pleadings. Placing such burden on veterans would 

be at odds with the non-adversarial nature of the system. We are pleased to see that 

the current draft bill has addressed this issue. 

Judicial Review 

We noted above that this draft bill would preserve a claim’s effective date following an adverse decision from CAVC. It would also provide the same relief after 

an adverse decision from the Federal Circuit and the Supreme Court of the United 

States. The concept of imposing finality after a Court decision has provoked a significant debate among the stakeholders. Unfortunately, the strongest objections to 

imposing finality at the Court have not been met with much discussion regarding 

why VA, or some of the other stakeholders, are comfortable with finality at that 

stage. We would encourage the Committee to draw out this discussion and fully examine the issue. There are arguments and perspectives on both sides that warrant 

attention. 

Our initial impression is that while VA is trying to create new efficiencies in its 

claims and appeals processing, we must remember that the CAVC is not part of that 

system, and it does not exist for VA’s benefit or efficiency. Nor does it exist to create 

precedent. Precedent is a byproduct of an individual availing him or herself of the 

Court. The Court exists to hear veterans’ individual claims and gives veterans an 

independent avenue to challenge whether VA considered a claim correctly. We in 

the veterans community fought long and hard for judicial review, and it is precious. 

PVA is uniquely positioned in this regard. Our organization has boxes full of claims 

that, but for the Court, the veteran would never have had a full and fair review. 

When we approach analyzing the impact on the Court, we should not focus on the 

systematic efficiencies or precedent, because these are not the Court’s purpose. We 

should focus on what an individual veteran’s right to judicial review is and what 

it takes to avail him or herself of that right. 

There are reasonable assertions that failing to provide effective date relief following a Court decision will have a chilling effect on the Court. They should be addressed unless willing to be conceded. One scenario presented is where a veteran, 

who having received a denial under what she believes is an erroneous application 

of law to the case, also has new evidence to attach to the claim. She is faced with 

deciding whether to pursue Court review on the legal issue or circulate back 

through the system with new evidence. If she chooses the Court and loses, she can 

still continue to pursue the claim with new evidence, but she will have lost her effective date. If she chooses to handle the new evidence first, her claim will again 

be adjudicated under what she considers to be an erroneous interpretation of law. 

This predicament, so the argument goes, will likely force veterans to choose to avoid 

the Court at the risk of missing an opportunity to strengthen the record. Hence the 

chilling effect. It also inconveniences the veteran by having them cycle through the 

system while being again scrutinized under a misinterpretation of the law. 

One might argue, though, that there is no chilling effect in this scenario. The veteran is in fact inconvenienced. But ultimately, if the veteran cycles through again 

with the new evidence, strengthening the record, she arrives in the exact same position if denied, this time without the predicament. The choice is obvious, and she 

180 

heads to the Court. The only person in this scenario who ultimately would not reach 

the Court is one who received an earlier and favorable adjudication at a lower level 

of review. This is precisely what we want for veterans. Any reduction in claims 

reaching the Court would be attributed to more efficient outcomes for the veterans. 

Making a decision about the framework that accommodates veterans facing this scenario also requires a belief that the veteran’s legal interpretation is always correct 

and, necessarily, that VA’s is always wrong. This is not how sound policy is formed. 

Further, it is hard to weigh at this point a single veteran’s inconvenience in this 

scenario against the potential gains for numerous veterans who are benefiting from 

a more efficient system due to the finality imposed after a Court decision. 

There is, perhaps, also an undue assumption that a chilling effect on the Court 

would in fact reduce precedent and oversight on VA. Conceptually, one may concede 

that a reduction in volume of claims at the Court raises the possibility that a ‘‘perfect case’’ for setting precedent will not arrive. But it is possible that a reduction 

in the Court’s workload would offer greater opportunity to give more time and attention to a precedent-setting claim, which otherwise might have slipped through the 

cracks or not garnered a more thorough opinion. 

There are other scenarios that argue in favor of granting effective date relief following review by the CAVC. If the Board rules against a veteran and finds that a 

medical exam being challenged was adequate for purposes of his rating decision, he 

is faced with two choices. He could appeal to the CAVC, or he could develop independent evidence that would strengthen his argument that the exam provided by 

VA was inadequate. The latter option costs money. If effective date relief followed 

a decision at the CAVC, the veteran could wait and see if the Court agreed with 

his position before he was forced to shell out money he likely does not have to invest 

in proving his claim. Veterans with means may not see this as an issue. For those 

without means, it would be an unwarranted obstacle in a system that is designed 

to be non-adversarial. 

One aspect of this framework that has not been discussed at all is the fact that 

you can technically take one issue from a multi-issue claim up to the Court, and 

cycle back through the other lanes in the framework on the remaining issues. Currently, the Court takes jurisdiction over issues that are expressly identified by the 

veteran, and issues not appealed after a Board decision are final. Nothing in this 

draft bill changes the way an issue reaches the CAVC. But because this new framework has provided liberal effective date relief, new incentives for action have been 

introduced. There should be further discussion among stakeholders and VA about 

how claims are dealt with that end up being split up between the Court and the 

agency. There is no precedent for this in the current system. 

PVA was a supporter early on of judicial review, and we believe the availability 

of that review has improved the appeals process for veterans. Determining the best 

way to preserve that protection deserves more conversation at this point in time. 

Implementation 

We applaud the heavy reporting requirements found within this bill. One of the 

biggest reservations that the collective stakeholders have voiced is the absence of 

information related to implementation. GAO’s recent report reinforced our claim 

that the success of this new framework hinges on how VA makes the transition, and 

VA has yet to fully demonstrate what it needs to accomplish this task. We also 

agree that it is important that VA provide a full accounting of the bases for certain 

assumptions that have been used to support the feasibility of this new framework. 

For example, what is the basis for the assumption that within the ‘‘hearing lane’’ 

at the Board, thirty-five percent of veterans will choose to have a hearing? What 

is the impact on the system if that estimate is drastically wrong? 

Within the reporting requirements, we recommend including a mandate to track 

legacy appeals that have transitioned into the new system. The goal would be to 

ensure that Congress can easily identify how many legacy appeals have been truly 

resolved as opposed to being reclassified in the new system. 

We support VA’s proposed first step toward combatting the backlog of legacy appeals. One of the hurdles to permitting veterans with legacy appeals to join the new 

system was that veterans in the legacy system may not have been provided sufficient notice to make an educated decision. Allowing veterans to join after they have 

received a statement of the case or supplemental statement of the case addresses 

this concern and will help stem the flow of new claims into the old, broken system. 

The quicker we can shut off that valve, the quicker the backlog of legacy appeals 

will be handled. 

We note in closing that this is not simply a VA problem. As stated earlier, PVA 

has many service representatives and spends a great deal of time, funds, and effort 

on ensuring they accomplish their duties at a high level of effectiveness. However, 

181 

it is important that veterans and their representatives also share responsibility 

when appeals arrive at the Board without merit. A disability claim that is denied 

by VBA should not automatically become an appeal simply based on the claimant’s 

disagreement with the decision. When a claimant either files an appeal on his own 

behalf, or compels an accredited representative to do so with no legal basis for appealing, that appeal clogs the system and draws resources away from legitimate appeals. Since 2012, PVA has taken steps to reduce frivolous appeals by having claimants sign a ‘‘Notice Concerning Limits on PVA Representation Before the Board of 

Veterans’ Appeals’’ at the time they execute the Form 21–22 Power of Attorney 

(POA) form. PVA clients are notified at the time we accept POA that we do not 

guarantee we will appeal every adverse decision and reserve the right to refuse to 

advance any frivolous appeal, in keeping with VA regulations. 

PVA believes that substantial reform can be achieved, and the time is ripe to accomplish this task. Our organization represents clients with some of the most complex issues, and we cannot stress enough that moving forward should not be done 

at the expense of the most vulnerable veterans. We must remain vigilant and appreciate the benefits of bringing together the variety of stakeholders who are participating and bringing different perspectives and viewpoints—it is a healthy development process that ensures veterans remain the focus. 

S. 2210, THE ‘‘VETERAN PEER ACT’’ 

The ‘‘Veteran Partners’ Efforts to Enhance Reintegration Act’’ would require VA 

to develop and institute a program to integrate Peer Specialists within patient 

aligned care teams. PVA recognizes the importance of promoting the use of mental 

health care services in the context of the primary care setting. The veteran-centric, 

holistic view of the patient epitomizes one of the key distinctions we have long made 

about care in a VA setting and care delivered in the community. We have a concern, 

though, with this bill’s strict requirements, as opposed to the discretionary nature. 

To serve as a Peer Specialist, the person must be a veteran with a mental health 

condition, be in recovery for at least one year without hospitalization or legal issues 

related to that condition, and willing to openly acknowledge and discuss their condition. If there is an insufficient population willing to openly discuss their own private 

mental health history and want to do this job professionally, VA may not be able 

meet this requirement through no fault of its own. While PVA supports the intent 

of this legislation, we believe more thought should be put into how best to implement this requirement before mandating VA take these steps. 

DRAFT LEGISLATION, THE ‘‘DEPARTMENT OF VETERANS AFFAIRS ACCOUNTABILITY AND

WHISTLEBLOWER PROTECTION ACT OF 2017’’ 

PVA supports the draft legislation, the ‘‘Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017.’’ This legislation would bring 

greater accountability and protect those employees who have the courage to call out 

fraud, waste, and abuse in VA. We firmly believe that the culture of a company, 

organization, or Federal agency is shaped by the worst behaviors its leader is willing to tolerate. The ‘‘VA Accountability and Whistleblower Protection Act’’ is the 

first major step toward reshaping behavior in VA by tolerating bad behavior and 

poor performance no more. Our veterans deserve it; and so do the hardworking public servants of VA who are tired of being overshadowed by the performance of substandard managers and employees. 

PVA has supported efforts to ensure proper accountability at all levels of the VA 

in the past. In recent years there have been numerous accounts of bad actors in VA 

senior and lower level management who have failed to fulfill the responsibility of 

their positions and in some cases arguably violated the law. The focus on accountability in this proposal strikes a reasonable balance to ensure VA leadership has the 

ability to manage personnel while affording due process protections to employees. 

We recognize that the question of due process is an important one, and those rights 

should not be eliminated. However, they cannot be used as a roadblock to accountability either. 

PVA appreciates the strong focus on accountability that the Committee has emphasized and we are pleased to see that Secretary Shulkin has made this a priority. 

There is no doubt that accountability at all levels is an essential part of improving 

the VA. 

DRAFT BILL, ‘‘SERVING OUR RURAL VETERANS ACT’’ 

PVA supports the draft bill to authorize payment by the Department of Veterans 

Affairs for the costs associated with care by medical residents and interns at Indian 

Health Service (IHS) and Tribal Health Program (THP) facilities operated by federVerDate Mar 15 2010 13:10 Sep 21, 2018 Jkt 000000 PO 00000 Frm 00185 Fmt 6601 Sfmt 6621 Z:\ACTIVE\051717.TXT PAULIN
182 

ally recognized tribes and carry out a pilot program to expand such residencies and 

internships at tribal facilities. While recruiting and retaining capable providers continues to be a struggle for VA, rural communities feel these vacancies two fold. In 

Indian Country particularly, the minimal availability of consistent, high quality 

health care has resulted in some of the worst health outcomes in the United States. 

The Federal Government has legal and moral obligations to provide health care 

to two groups—federally recognized tribal nations and eligible veterans. The overlapping, and at times inter-reliability of these groups’ respective health care systems 

is necessary, as American Indians and Native Alaskans have always served in the 

Armed Forces at the highest rate of any demographic. In Alaska, where this health 

care system interoperability is most prevalent, the need for primary care providers 

is critical. 

Physician shortages in the United States, and rural communities particularly, are 

expected to increase drastically in the coming decade, leaving health care systems 

with a high volume need and little capacity. This bill would provide some relief, by 

incentivizing medical residents and interns to work at tribal facilities that have existing reimbursement agreements with VA. The eight-year pilot program would 

have VA reimburse the tribal facilities for the recruitment and training of residents. 

These participants would then be eligible for loan forgiveness through Indian Health 

Service or Department of Veterans Affairs Loan Repayment Program. 

In 2010, the Indian Health Care Improvement Act was made permanent. As a result, IHS and VA signed a Memorandum of Understanding (MOU) aiming to improve the health status of American Indian and Alaska Native veterans. In 2012, 

VA began to establish agreements with tribal governments to reimburse them for 

the direct care of native veterans enrolled in VA. 

Since then around 108 tribes have established agreements with VA. At least 7,000 

native veterans have been able receive care. Additionally, VA and IHS have 

strengthened collaborative relationships and resource sharing. For much of Indian 

Country, unreliability or unavailability of transportation impacts a veteran’s ability 

to receive care from a VA facility. These agreements allow veterans to receive their 

care close to home, in a culturally conscious environment they may not find at VA. 

The national authority for VA to make reimbursement agreements between agencies is set to expire June 30, 2019. If, for some reason, this authority is not renewed, 

it is unclear what would happen to the proposed eight year pilot program that is 

dependent on the existence of an agreement. PVA encourages Congress to ensure 

this authority is renewed in 2019 in order to continue building on the successes already achieved. 

This bill offers a sound step forward to ensuring we meet the needs of those who 

have served, no matter their zip code. 

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LETTER FROM BILL VALDEZ, PRESIDENT, SENIOR EXECUTIVES ASSOCIATION


517apSEA1.eps

~ ' Se"" nior * Executives 

~~-i_t_'-----------------h_ _i_ ar _r_fe al _u_ti_ es si_n_ o_ Jlilll(-r . n K Str~t N.E., Suite 2600 • washin.gton, D.C. 20002 • (202) 971·3300 • Fax (202) 971·3317 • www.scniore:xe<s.org 

May 17,2017 

The Honorable Johnny Isakson 

Chairman 

Committee on Veterans Affairs 

Washington, DC 20S10 

The Honorable Jon Tester 

Ranking Member 

Committee on Veterans Affairs 

Washington, DC 20S10 

Dear Chairman Isakson, Ranking Member Tester and Members of the Committee: 

On behalf of the Senior Executives Association (SEA) and its members, who are career federal executives 

in the Senior Executive Service (SES). and those in Senior Level (SL), Scientific and Professional (ST), and 

equivalent positions, Including those serving at the Department of Veterans Affairs (VA), I write in regret 

to convey our opposition to S. 1094 which strikes at the heart of the career-run merit based civil service 

system by empowering the VA Secretary and political appointees to conduct wholesale political firings of 

VA senior executives. Enacting such a provision is not in veterans' best interest. 

The specific provision of concern is at Title II, Section 201, 713(c) which, if enacted, would not apply the 

provisions of Section 3592(b)(l) of title 5 to actions taken under the provisions of the section. This 

language would eliminate essential protections provided by Congress to career federal executives and 

enable undue or politically influenced terminations of dedicated VA senior executives. Coupled with 

provisions to provide direct hire authority for medical center directors and VISN directors, this 

legislation could trigger a return to the spoils system of patronage that was a hallmark of the federal 

civilian workforce prior to the passage of the Pendleton Act of 1883, and it's modernizing legislation the 

Civil Service Reform Act of 1978 (CSRA). 

While it might seem logical to assert that the elimination of appeal rights to the quasi-judicial 

independent Merit Systems Protection Board (MSPB) for VA senior executives will improve 

accountability and agency culture, it makes less sense when one considers MSPB's history and record. 

Historically, in both Republican and Democratic administrations, the MSPB has had an average 85% 

affirmation rate of agency decisions, meaning agency personnel actions were upheld. We have no 

reason to believe that this outstanding record would not be maintained in 2017. 

Congress specifically created the MSPB in the CSRA as a specialized independent agency of subject 

matter experts who could adjudicate federal personnel cases so the federal courts did not need to, 

except upon appeals, as demonstrated by an MSPB flowchart. Is it really the most efficient use of our 

under-resourced federal judiciary to charge it with taking on individual federal employee personnel 

cases? The SEA believes it does not and could prove ultimately harmful to everyone's overall goal of 

creating a 21st Century workforce at VA and throughout the federal government. 

Provisions in this legislation focused on improvements in workforce management. accountability and 

incentive structures are welcome, but do not address the core issues affecting management and 

accountability of the VA workforce, such as non~statutory negotiated employee review processes. 

Veterans deserve a substantive and comprehensive workforce management, accountability, and 

incentive structure that not only focuses on how to hold VA employees accountable, but that also 

contains provisions to ensure the success of VA employees. This legislation does little to improve or 

invest in the VA workforce's ability to execute its mission. 
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We believe this legislation, and Congress' actions to reform the civil service in general, should reflect 

fact-based studies, not alarmist anecdotes. According to a recent MSPB study, Federal supervisory 

employees report that agency culture (80%}, the degree of support given by managers and leaders 

above (77%}, and the quality of service provided by my human resources office (76%} are their top three 

barriers to addressing employee misconduct. On a list of 19 of the most difficult tasks they faced as 

managers, addressing serious misconduct ranked 14'". Getting a pool of quality candidates to hire from 

came in first. The same study revealed misunderstanding by management employees about procedures 

and burdens of proof required to hold employees accountable, a finding that is not addressed by the 

inclusion of comprehensive supervisory training provisions in the legislation. Nor does this legislation 

address the manner in which supervisory employees are selected or developed as leaders, which could 

help address issues with whistleblower protection and retaliation. 

Passage of this legislation can only serve to exacerbate VA's hiring woes, further straining its ability to 

attract talent to over 45,000 vacant positions at the agency. The VA has struggled to fill critical positions 

due to systemic issues that have plagued the agency and created a toxic and unmanageable 

environment. It is unclear how the creation of a new political appointee, the Assistant Secretary for 

Accountability and Whistleblower Protection, even if Senate-confirmed, will provide the leadership 

capability and management stability to drive sustained effort to improve VA's workforce culture. A term 

appointment of five years or longer would provide better stability and independence to the position. 

A 2016 survey of VA senior executives, conducted by SEA, unveiled the most significant threats to 

retention among career senior executive leaders, with nearly three in four respondents saying that 

unfair media and congressional scrutiny, lack of agency leadership support, and diminished or complete 

inability to be considered for performance-based awards were causing them to consider leaving the VA. 

Those same factors continue to obstruct the VA's ability to attract and retain the best career senior 

leaders, with 97% of respondents saying they were concerned about the ability of the agency to fill 

crucial roles. 

SEA would welcome an opportunity to work with the Committee to develop a forward -thinking 

accountability framework that accomplishes both goals: holding all civil servants accountable for 

misconduct or poor performance, while investing in the development and capability of civil servants to 

achieve an agency's mission and incentivizing them to complete work in the most effective and efficient 

manner possible. We believe developing such a framework is possible and would have many positive 

effects. SEA is committed to the continued improvement of the federal government and the services we 

provide to the American people. 

We fully understand that there are serious challenges facing the VA, and that the need to address those 

problems is immediate. Unfortunately, this legislation is not the solution. 

Thank you for considering SEA's views. If you have any questions or comments, please contact SEA's 

Executive Director Jason Briefel at 202-971-3300; briefel@seniorexecs.org. 

Sincerely, 

BILL VALDEZ 

President 

CC: Members of the Senate Committee on Veterans Affairs; 

The Honorable Marco Rubio 
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PREPARED STATEMENT OF HON. ROBERT N. DAVIS, CHIEF JUDGE, U.S. COURT OF APPEALS FOR VETERANS CLAIMS

MR. CHAIRMAN AND DISTINGUISHED MEMBERS OF THE COMMITTEE: Thank you for 

the invitation to submit a statement of the Court’s views on legislation pending before the Committee, in particular S. 1024, the Veterans Appeals Improvement and 

Modernization Act of 2017. The Court’s comments will be brief. 

Although changes to VA’s appeals processing will eventually impact the Court, the 

pending legislation does not amend the statutory provisions governing the Court’s 

function. For this reason, the Court will not speculate as to potential consequences 

of changes that pertain only to the agency, or comment on specific provisions that 

may ultimately come before the Court in litigation. We do, however, offer the following thoughts on the need to ensure that claimants are aware of their right to 

appeal to a court of law, and the potential impact this legislation will have on the 

Court’s workload. 

Continued Advisement of Appellate Rights: The proposed legislation on appeals 

modernization provides veterans unlimited opportunities to repeatedly pursue a 

claim within the agency and secure the earliest effective date possible following any 

grant of benefits on a timely supplemental claim. That revised appeals structure 

could potentially result in a veteran never securing a Board of Veterans’ Appeals 

(Board) decision and accompanying notice of appellate rights, and thus never being 

informed of the Court’s existence. The Court states no opinion on whether or not 

the proposed changes are ‘‘good for’’ individual veterans or VA’s overall system of 

claims processing. We do, however, want to ensure that veterans remain aware of 

the full array of options available to them in pursuing a claim, including appealing 

to the Court, and that no option be painted as more or less favorable or likely for 

success than another. 

Unlike earlier draft bills on appeals modernization, S. 1024 includes language 

that extends the effective date protection, and in essence permits continuous pursuit 

of a claim via the submission of a timely supplemental claim following a decision 

of the Court. The Secretary opposed a similar provision in recent testimony before 

the U.S. House Committee on Veterans’ Affairs, where Acting Chairman of the 

Board David Spickler stated that affording that effective date protection following 

a court decision ‘‘is contrary to VA’s policy interest in encouraging dissatisfied claimants to stay within VA unless it is truly necessary to go to a higher court.’’ We oppose any effort to discourage veterans from exercising their right to appeal to the 

Court. In light of Mr. Spickler’s strong statement, the Court feels it worth highlighting that whether or not S. 1024 passes as drafted, the notices VA includes with 

its decisions must present to veterans all of their post-decision options fully and 

fairly, and leave the decision as to when an appeal to the Court is necessary in the 

hands of the veteran. At a minimum, any revisions to the post-Board-decision standard notice of appellate rights must leave intact the notification regarding appealing 

to the Court. Many people fought long and hard to secure impartial review of adverse VA decisions by a Federal court that by definition is independent of VA. Veterans and their survivors must continue to know about and understand that right. 

Implementation: Generally speaking, appeals filed at the Court come from veterans who are dissatisfied with a decision of the Board. Although not with mathematical precision, history has shown that as the number of Board decisions increases, so too do the number of appeals filed at the Court. It is impossible to predict to what extent, if any, the changes proposed by this broad appeals reform legislation will result in some veterans choosing to pursue their claims at the agency 

following an adverse Board decision rather than appealing to the Court. It is likewise impossible to predict the extent of the legal and procedural questions that will 

be raised by sweeping legislative change and that will ultimately come before the 

Court for decision. What does seem clear is that the manner in which this pending 

legislation is implemented and how that implementation effects the flow of decisions 

made by the Board will have a profound and fairly immediate effect on the Court. 

The applicability section of S. 1024, Section (x), addresses how VA would implement this legislative change, to include an early applicability option and phased rollout. This provision leaves several questions as to when the new system would ultimately be implemented, when cases under that system would reach the Court, and 

how legacy appeals would be treated. The certification requirement on VA to confirm its preparedness to implement amplifies the uncertainty. Any implementation 

plan for sweeping legislative change to the VA claims processing system will certainly have its challenges, and we offer no comment on what those may be. We are, 

however, attempting to anticipate the impact on the Court and best estimate and 

prepare for the workload that may result from these changes should they become 

law. 

186 

VA recently testified that more than 460,000 appeals are pending before the agency today. The Board decided in the neighborhood of 52,000 decisions in fiscal year 

2016, has pledged to further increase its number of annual decisions, and has and 

continues to grow its staffing at an extraordinary pace in order to meet those projections. Faced with this data, the Court projects a steady, and likely significant increase in the number of appeals over the next several years. As we anticipate a 

growth in appeals, let me take this opportunity to thank the Committee for the 2016 

authorization to temporarily maintain an expanded Court of nine active judges. 

Once judicial nominees are announced, we ask for your prompt attention to the confirmation process so that we may return to full strength and ensure that we are 

prepared and able to conduct effective, efficient, and expeditious judicial review of 

all matters that come before the Court. 

In closing, we appreciate the Committee’s consideration of our input, and for the 

past and continued support of the Court’s endeavors, including the establishment 

of a permanent Courthouse building. Thank you. 

187 

LETTER FROM CAROL WILD SCOTT, ESQ., LEGISLATIVE CHAIR, THE VETERANS & 

MILITARY LAW SECTION, FEDERAL BAR ASSOCIATION


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traditional jurisdiction of a U.S. Circuit Coun of Appeals and limits the recourse of the 

veteran population to a full and fair hearing of the issues raised. 

2. Qualifications of Board hearing examiners: Jn 20 16, the Veterans Law Judges at the 

Board of Veterans Appeals were reversed or remanded at the highest rate in twelve years. 

This troubling trend demands, at a minimum, the identification and evaluation of those 

VUs whose decisions are consistently overturned by the Court. Another approach that 

would address the existing eulntre at the Board is to require that all hearing examiners at 

the Board meet Title V Administrative Law Judge standards of qualification. Attached to 

this statement is a graph of the remand rate for cases appealed from the Board to the 

Court for the sixteen e~ rs from 2000 to 20 l6. Of those sixteen yellrs, ten of them show 

a rate of80% or higher. While transition to Title V AL.Js may require considerable 

initial expense, the reduction in necessary remands and improvement in quality and 

consistency of decisions will reduce the number of remands and improve the quality and 

consistency of decisions, making the system feel less like a "hamster wheel" for veterans 

and their survivors or dependents. 

3. Training Issues: There is no transparency regarding the sources or resources utilized by the 

Agency to train its rating personnel. Nor is there any discussion of the minimal qualifications for 

employment as a rater or as a trainee. It is the position of V &MLS thai at a minimum applicants 

for these positions should be required to have an Associate Arts degree from a community college 

with required courses in biology, physiology and preferred health care related subjects. Most 

preferred would be a four-year college degree with courses identifiably relevant to the nature of 

subject matter of claims and health care within the VA environment. Congress has not recently 

required VA to reveal the CLuTicula or the personnel constituting its training programs for either 

V ARO raters (whose bad decisions are kicked up to the Board rather than resolved at the AOJ 

level) or Board personnel responsible for the reversaVrcmand rate at theCA VC. It is time to 

include these issues in any hearings on appeals reform. 

The increasing reversal I remand rate at theCA VC calls into question the training of 

Board persotmel. The 2016 Annual Report issued by the CA VC shows that of the 3717 

dispositions of appeals made by the CAVC in 2016, (excluding 495 dismissals) only 457 

were affirmances of Board decisions. 88% of the dispositions of appeals were reversed 

or remanded on at least one ground. There were 2835 EAJA petitions granted (3 other 

denied and J 5 dismissed) by the Court during this time; a rate of 76% of the remands & 

reversals, indicating that the Agency was substantially in error at least 67% of the time. 

Education of Board personnel could be a significant contributing factor to the increasing 

reversal/remand rates. Anecdotal evidence finds that there are two fu ll time staff 

personnel (neither of them trainers) for the training office at tbe Board. Peer mentoring is 
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the preferred mechanism for tra ining. It is time to consider hearings on this issue; 

particularly in view of the abysmal performance of the last year. 

4. Leadership Issues: Disposition statistics like these raise t\vo impo11ant questions: First, 

is the Board resistant to the developing CA VC case law by which its decision-making 

processes are governed? Second, does the Board have adequate administrative 

leadership? Answering the first question may obviate the first, as a qualified Board 

Chaitman with autbor8ity to decertify underperforming hearing examiners would help 

improve the quality of decision-making processes at the Board. Too many appeals arc at 

the Court for the second, third and fourth time; the result of the failure of the hearing 

examiners to follow clear instmctions given by the Court. It is time to insist that a 

qualified Board Chainuan be appointed and confim1ed and give the authority to decline 

to recertify those hearing examiners whose decisions result in excessive remands and 

reversals at the CA VC. 

Discussion of S. 1024 

Definitions: The initial proposals to redefine the process by modernizing the definitions under 

Sect. 101 of Title 38 seek to remove any barriers perceived to exist to the adjudication of claims 

through reassignment from the Regional Office with geographical jurisdiction over the veteran's 

claim to "specialty offices" often far removed from the veteran. While there may be some value 

in doing that in the instances regarding subject matter, codification provides too much incentive 

to remove the matter from any reach by a veteran or representatives of the veteran requesting a 

review within tbe Agency of Original Jurisdiction (AOJ). 

The Agency seeks to remove the tem1 "Material evidence" throughout this bill, replacing it with 

"Relevant evidence." Black's Law Dictionary defines "Materi al evidence" as "that evidence 

which tends to influence the trier of fact because of its logical connection with the issue. 

Evidence which has an effective influence or bearing on the question on issue." "Relevant 

evidence" is defined as "Evidence tending to prove or disprove an alleged fact. Evidence having 

any tendency to make the existence of any fact that is of consequence to the detem1ination of the 

action more probable or less probable than it would be without the evidence." This raises the 

evidentiary bar for "supplemental claims." During the several round-table discussions held on 

this effort in 2016, the consensus was to restrict the tem1inology for "supplemental" claims to 

"new evidence;" the introduction of the term "relevant" came afterward, ignoring the consensus. 

If one modifier to "new" must be retained, there is at least a body of law in place defining 

"Material evidence;" changing it to "Relevant," notwithstanding the bigher evidentiary bar, 

invites years of litigation. 

What is clear is that the bar for re-opening a previously denied or insufficiently adjudicated 

claim with these changes in definition, would be much bigher, and if flied within a year of the 

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original decision, no notification would be required. These provisions contribute to the 

Agency's increasing view of the c laims system as an adversarial environment. 

As matters stand, the claimant veteran, widow or dependent may only retain counsel prior to the 

promulgation of a rating decision on a pro bono basis. The basis for this limitation was the 

premise that the benefits c laims system is non-adversaria l. The national YSOs were deemed 

more than capable of assisting the veteran in pursuit of compensation. Since the passage of the 

VJRA there has been a gradual shift in the nature of the claims system from non-adversarial to a 

system increasingly governed by an escalating body of decisional law which is entirely 

inconsistent with the concept ofnon-adversarial. The proposals in this Bill advance the 

advcrsarial clements further than ever before. It is, in the opinion of the Y&MLS time to revisit 

the denial of paid representation at the initiation of the claim, as this is likely to result, in those 

claims filed by counsel, in better, cleaner claims more susceptible to efficient adjudication. This 

legislation does a llow representation at the point of Notice of the AOJ decision. Y&MLS 

advises that the bar to paid representation needs to be e liminated. 

Duty to Assist: "(c) Section 51 03A(t)" undersc.orcs the raising of the evidentiary bar to rcadjudication of disallowed claims to a standard that requires that new evidence "prove" the claim 

rather than be simply "material." 

Any doubt as to the shift to an adversarial environment is removed with the proposed addition of 

Sect. 5103B removing the obligation of the duty to assist from any stage above the initial rating 

decision. S. I 024 does impose some duty on the Board to be cognizant of violations of the duty 

to assist, but there is far too much opponunity for the total disregard of obvious errors in the 

initi al rating process. It would, under the provisions of(a), (b) and (c) of this amendment exist 

only within the original rating process and after the issuance of a "notice" of the rating decision 

apply neither to any "higher review within the A OJ" nor to any obligation on the part of the 

Board. Further, the correction of a duty to assist error during a "higher level review" within the 

AOJ [( I)] is dependent upon the "identification" of said error by the reviewer. There is, 

regardless of the language requiring review by the Board insufficient duty imposed upon the 

reviewer to search for or identify a violation of the duty to assist. Remand for correction is 

required if the claim cannot be granted in fu ll. 

Identification of a duty to assist error at the Board [(2)], if the fai lure occurred prior to the 

"notice" of the original rating decision, triggers remand for correction if the claim cannot be 

granted in fu ll. This provision a lso includes a provision that allows the Board to order an 

advisory medical opinion as part of the correction. Flaws in the original rating decision are in 

most instances the result of reliance on an inadequate medical exam, followed by fai lure to 

obtain critical records a11d failure to appropriately consider lay evidence. Current litigation and 

Agency investigations indicate t11at this aspect of the claims system is far more troubled than was 

previously considered with the revelation that an estimated 25,000 veterans may have had 

improperly conducted exams for TBis by unqualified examiners. Y&MLS believes it essential 

to provide opportunity for paid representation and to provide for submission of additional 

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evidence simultaneously or immediately subsequent to the Notice of Disagreement (NOD). 

These steps would enhance the cost effectiveness of the system, as well as the perception of 

fairness. Further, eliminating the major part of Sect. 5109 regarding lMEs is contr-.try to full and 

fair evaluation of a wide variety of medical issues. 

Ancillary to this concern is that of the lack of any discovery in either the initial AOJ rating 

process or in the review process. Credentials of examining personnel and often the identities of 

examiners and rating personnel are barred from discovery procedures available in similar 

proceedings in other agencies that are in those jurisdictions considered elementary administrative 

due process. Transparency in this aspect of the system would conserve agency resources in the 

long nm and diminish the lengthy appeals and litigation surrounding the issue of adequacy of 

examinations. 

The Duty to Assist is a cornerstone concept of Veterans Law. It is the creature of a paternalistic, 

veterans-first adjudicatory philosophy inherent in the claims system. It is the concept upon 

which the entire structure of that system rests. It is also the rationa le by which paid 

representation has been limited to the appellate stages ofthe claims process. The imposition of 

the Duty to Assist at every stage of the claims process from the initial processing of the claim 

through the hearing and the consideration before the Board is also the cornerstone of nearly 

every decision by theCA VC. The limitation of the Duty to Assist as proposed by this 

legislation poses a significant impediment to administrative due proc.ess on the part of the 

impaired or prose veteran, survivors or dependents before the Agency at any stage of the 

proceedings. V&MLS strongly opposes any limitation of the duty to assist requirement 

anywhere in either initial claim or the review of denial of the claim. 

Sect. 51 04A: V &MLS has no issue with this provision. Any favorable finding should be, as a 

matter of the law of the case binding on further adjudicatory action. 

Sect. 51 04B: The provision, under (b) of this Section requires that a request for review by the 

AOJ be specific as to which office of the AOJ is requested. This requires more precise language. 

It appears to allow for review by a different set of eyes in another office, i.e. more independent 

review. /fthis is the case, V &MLS is not opposed, and continues to urge that the duty to assist 

be continued, especially for the impaired or pro se claimant. 

(a) V &M LS does not disagree with the concept of permitting a request for higher level review 

within the AOJ. This appears to retain the process of the Decision Review Officer. When this 

process fi.mctions as it was designed to function , it was/is beneficial to efficiency of time and 

resources and eliminates the need for appeals to the Board by resolving the issues at the AOJ. 

V&MLS urges the retention of the ORO review process within the review available in the same 

office promulgating the original rating decision. 

(b) V&MLS approves of retaining the one year time allocation for filing a Notice of 

Disagreement (NOD). However, V &M LS has significant reservations about prescribing overly 

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restrictive provisions governing the fom1 such disagreement must rake. The fonns "prescribed 

by the Secretary" arc, in their current versions, very narrowly worded and spaced. They arc 

clearly designed to limit the scope of the disagreement and are antithetical to allowing the 

vcteran/claimam any freedom of expression. They are also contrary ro existing case law 

regarding the definition of a NOD. V &MLS urges the Comminee to provide guidelines for 

content of the NOD but to phrase it in the permissive "should" rather than exclusionary 

mandatory language and to require that the "form prescribed by the Secretary" include sufficient 

space for addressing the c laimant's concems. 

(c) V&MLS urges language added to this provision that requires that copies of Notices under 

this provision be supplied to both the claimant and any representative, either Veterans Service 

Organization (VSO) or counsel. V &MLS recommends that all communication relating notices 

of decisions or decisions be sent by certified mail. V&MLS further urges the Committee to 

provide for pre-decisional consultation with any representative of record for the purpose of 

resolving evidentiary and legal issues that may have arisen in the course of investigating and 

developing the claim. The purpose for this is to avoid unnecessary higher level review and 

permitting early resolution of issues presented. V&MLS notes that "previewing" decisional 

action is common procedure between rating personnel and VSOs who are often co-located in 

ROs. This should be standard procedure for all representatives, as it is conducive to filling in 

evideuriary gaps, clarification and administrative best practices. 

(d) Evidentiary Record: The added Section 51 04B a lso seeks to c lose the evidentiary record at 

the issuance of the initial mting decision. While there are provisions in later elements of this Bill 

for the submission of further evidence at the Board level, to the average pro se veteran, this shuts 

the door to submission of further evidence. Under this modification of existing law, either a 

VSO or an attorney reta ined subsequent to the NOD would be ethically bound to seek by motion 

to modify the notice of disagreement to provide for utilizing the "hearing option" track at the 

Board in order to fi ll in the evidentiary gaps left by either inadequate representation or by the 

omissions of the pro se veteran. 

The unrepresented veteran who fails to ask for the " hearing option" docket in the NOD and fails 

to comprehend the consequences of failing to do so loses any opportunity to submit additional 

evidence n this forum short of fil ing a supplemental c laim, in which the evidentiary bar is much 

higher. Entry into the appellate stage with e ither paid or lay representation, under this provision, 

would require a motion to amend the notice of disagreement. There is no provision for requesting 

a "hearing option" docket or higher AOJ review, which allows an opportunity to fill in the 

evidentiary gaps or argue evidence that is relevant but otherwise not of record. 

V &MLS categorically disagrees with this provision as it constitutes as a denial of procedural 

due process and is utterly contrary to the concept of a "veteran-centri c VA," unless provision is 

made for notice of this limitation prominently articulated within the body of the rating decision. 

Such notice should a lso advise the claimant that selection of the " hearing option" docket in an 

appeal to the Board will permit the submission of further evidence. 

6 
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Association 

Veterans & 1\tllitary Law Section 

The fact remains that the combined effect of limitation of submission of further evidence, 

limitation of the duty to assist and raising the evidentiary bar for supplemental claims I 

readjudication leaves very little that is non-adversarial within the system. While amending Sect. 

5904 to allow the veteran paid representation subsequent to the notice of decision by the AOJ is 

somewhat ameliorative it fails to penn it the veteran access to paid representation in order to 

better ensure that the AOJ adequately develops the record from the beginning. It should be 

noted that doing so accords the veteran the Sixth Amendment right to representation by counsel 

enjoyed by every claimant before every other Administrative agency. 

(e) Y&MLS agrees that any review by any entity within the Agency at any level should be DE 

NOVO 

Sect. 51 04(b): The enumeration of required contents of any notice of denial of benefits is 

certainly useful, but the language of this amendment appears to codify that which has previously 

appeared as "Statement of the Case." Limitations should be included which preclude the 

utilization of endless "explanations" which yield no aids to comprehension and serve only to 

obfuscate the obvious. The inclusion of the requirement that the content state simply and 

precisely the basis for the decision in tcnns readily understood by an unrepresented claimant. 

V &MLS would then be supportive of this provision. 

Proposed Sect. 5 1 04(b) requires, within the enumeration of elements of a denial, (if applicable), 

identification of criteria that must be satisfied in order to grant (the benefit sought). Yet, any 

higher review must be done on the basis of evidence considered in the initia l development. This 

is utterly inconsistent and will engender substantial numbers of "supplemental" claims. It makes 

no sense to require the Agency to advise the cla imant of what evidence is missing and at the 

same time preclude the introduction during the Higher Review of evidence that will satisfy the 

missing elements. This is not an issue of legal sufficiency or insufficiency; it is a matter of 

common sense. 

Sect. 5108 Supplemental Claims- This amendment of Sect. 5108 replaces "reopened claims" 

with ·'supplemental claims:" Under this provision "new and relevant" evidence is required for 

the adjudication of a supplemental claim. This once again raises the adjudicatory bar much 

further than does the language of the existing provision. Whereas "material" requires only that 

the evidence tend to intluence the trier of fact because of its logical connection to the issue, 

"relevant" would raise the bar to evidence that relates to or bears directly on point or fact in 

issue; proves or has tendency to prove a penincnt theory in the case. This is a tcclUJical, legal 

requirement imposed on a process that is required to be veteran-centric. This language is a trap 

for the pro sc c laimant, inviting a quick denial. V &MLS urges the Committee to recognize that 

this is once again a further shift to an adversarial process in which paid representation should be 

a recognized right accming to the claimant. 

7 
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Association 

Veterans & Military Law Section 

Sect. 5109 is given a new subsection under which the Board may remand a claim to the AOJ for 

procurement of an advisory medical opinion to correct an error by the AOJ to satisfy its duties 

under 51 03A when the error occurred prior the AOJ decision on appeal. This adds an 

unnecessary step to the review process - requiring the matter to be remanded yet aga in. Nor 

docs it specify whether this applies to errors on the part of a "higher-level reviewing authority" 

within the AOJ. As a significant number of duty to assist errors are incident to inadequacies of 

medical exams, this should be clarified. 

Sect. 5904 Amendment: The proposed amendment of(c)l and (c)2 appears to move the point at 

which paid representation becomes available to the veteran to the point of the issuance of the 

decision on the initial claim by the AOJ; "notice of the Agency of Original Jurisdiction's initial 

decision under Section 5104 of this Title." Under the existing staUitory provisions paid 

representation is not avai I able to a veteran I claimant until the point at which the Notice of 

Disagreement is filed. 

Given the existing political climate, the ban on the availability to the veteran of paid 

representation at the initial submission of a claim may be unlikely to be lifted. However, it 

should be noted that Congress has, within the last decade, recognized the advisability of allowing 

paid representation before the Agency. Merely providing an opportunity for paid representation 

prior to submission oft he notice of disagreement is a benefit without practical application; there 

is no mechanism for repairing a deficient record prior to filing the Notice of Disagreement before 

the door to submission of additional evidence is closed. The prose veteran, especially an 

impaired prose veteran is out in the cold. ln view of the proposed significant restriction of the 

opportunities for introduction of additional evidence, it is critical that these provisions be as 

broad as possible. V &MLS supports this provision with significant reservations as stated above. 

Sect. 7105 Amendments: 

V&MLS is supportive of the proposed amendment (b)(l), establishing the time for the filing of 

the notice of disagreement within one year of the mailing of the notice of the AOJ's decision. 

We do note that nowhere in this legislation is there any provision for time limits on any Agency 

action. 

The proposed amendment of(b)(2) establishes legal, technical requirements of allegation of 

specific errors of law or fact to be inscribed on the Secretary's spcci fie fom1. Once again, the 

process shifts further toward an adversarial process in which the unrepresented claimant is 

presumed to have an unrealistic level of knowledge or expertise. While the opportunities for 

representation are broadened, the fact is that significant numbers of claimants I appellants before 

the Board and the Court are unrepresented (28% of appellants at the Court were prose at filing 

the NOA in 2016). It is critical to the veteran-centric intent of the claims process that there arc 

provisions for liberal interpretation of what constitutes conformity with the requirement of this 

provision as proposed. V &MLS urges careful attention to language in this provision as proposed 

and implementing regulations to avoid adverse impact on the prose claimant. 

8 
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Veterans & Military Law Section 

V&MLS is not entirely in agreement with the proposed amendment that establishes a three-track 

option for appealing the decisions of the AOJ to the Board. We suggest that the language more 

clearly identify the tracks by enumeration, and that the non-evidentiary track and the no hearing 

track be combined. We also suggest thai the fully developed appeal be incorporated with this 

track. 

V&MLS is supportive of the proposed language of Sect. 7105(c), ma intaining the jurisdictional 

finality of Agency of Original Jurisdiction decisions that remain unappealed after one year. 

The provisions of7105 (d) as amended e liminate tbe Statement of the Case and the laborious 

process it entailed. V&MLS agrees with this provision with the proviso that in order to maintain 

the veteran-centric character of the claims process that the language also provide that 

submissions by prose claimants be read liberally for allegations of error of law and fact. The 

unschooled or impaired prose claimant must not be penalized by technical legalistic 

requirements he/she is incapable of meeting. 

Sect. 71 06; V &MLS supports the deletion of Seer. 7 106. 

Sect. 7107; V&MLS supports the amendment of Seer. 7107(a), (b) and (c) as proposed. 

V &MLS docs, however, urge that sub-section (f) be amended to require that the Board screen 

those cases in which tbe cla imant is prose for adequacy of the record and undertake such further 

development as may be necessary to satisfy the duty to assist. ln this regard V &MLS re-iterates 

our strong disagreement with the elimination of the duty to assist after the initial rating decision. 

Sect. 7113; V&MLS supports the provisions of this Section with the caveat that the due process 

requirements of the duty to assist be afforded the pro sc appellant, particularly if review of the 

record demoostrates that the appellant is impaired. This additional provision is consistent with 

V &M LS position regarding the proposed restrictions on duty to assist, submission of evidence 

and the impact of these measures on the pro se and impaired claimant. 

Accountability and reporting provisions; V&MLS supports those provisions requiring detailed 

reporting and preparatory measures for the inception of these reform provisions. The General 

Accounting Office report made it abundantly clear that the Agency was in too much of a hurry to 

adequately test and vet the changes it is proposing. Let there be no mistake that this legislation 

inures almost solely to the benefit of the Agency - not the veteran. We do strongly recommend 

that training be addressed far more in the final version of this bill than it is currently. The woeful 

and inexcusable performance of the Board in cases that have been appealed to the CAVC is a 

glaring example of the lack of training and skill rampant at the Board. One wonders about the 

thousands of denials that are not appealed to the CA VC. 

************ 

9 
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Medical Examinations and Opinions. 

Federal Bar 

Association 

Veterans & Military Law Section 

While V &MLS are cognizant of the perceived increase in efliciency in eviscerating Sect. 5109, 

we also are coucemed that there are many issues involved with medical exams that need address. 

As a part of the appeals system, we would urge this Conunittee to ensure that any issue 

remanded for an lME carry an array of procedural protections for the veteran. Copies of any 

such request should be supplied to the claimant and his/her representative, as well as the 

resulting report. Such examinations, or JMEs should be conducted, in the event of an acn1al 

examination, by an appropriate specialist practicing in the field giving rise to the issue; not a PA 

orNP. 

It should also be noted that implementation of a treating physician rule, wherein the VA treating 

physician (as well as the private physician when appropriate) are required consultants on the 

issues of nexus, would improve the quality of medical evaluations and go a long way in relieving 

the stress of physician availability in VHA. The rationale that treating physicians will have too 

much sympathy for the patient to provide an unbiased opinion is specious at best as well as 

demeaning to the professional integrity of the treating physician. At a time when VHA is 

suffering from an acute shortage of medical personnel and veterans are waiting inordinately long 

for medical care, the continued duplication ofeff01t in this regard is a waste of taxpayer dollars. 

S. 23 V&MLS supports this legislation. 

S. 11 2 V &MLS has no comment on this bill. 

S. 324 V &M LS encourages this Committee to consider, within the purview of this legislation, 

the establishment by the Department, in cooperation with Indian Health Service and Bureau 

Indian Affairs, on Indian lands, of facilities to accommodate aging and wounded hl(lian veterans 

in need of nursing home care, particularly on reservations in the Northern Plains and Southwest, 

with high unemployment and limited resources. 

The rationale for such facilities is the general unavailability of state homes within reasonable 

distances and the nearly total lack of cultural competence iu treatment and care modalities in 

those that may be within reach of fami lies. Please note that the older Indian veterans frequently 

lose the ability to speak English and can no longer commw1icate with institutional caregivers. 

V&MLS supports this bill, noting that it should have covered all veterans from its inception. 

Each generation of veterans includes those in need of fami ly caregiver opportunities by virtue of 

illness and the residuals of injuries incurred in the line of duty. 

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Federal Bar 

Association 

Veterans & Military Law Section 

When this legislation was under initial consideration, V &MlS strongly urged that training of 

family care-givers was better accomplished within the community through LPN and nursing 

training where available. The rationale we provided was that nearly every community has such 

programs and they not only provide licensure-level training, but ongoing support structures afl:er 

the training with concomitant availability of emergency care with which they became familiar 

during training. 

S. 609 V&MLS takes no position on this legislation. 

S. 68 1 V&MLS Strongly supports this legislation with one recommendation. We recommend 

that a provision be added in which VA is required to coordinate with Indian Health Service to 

develop culturally competent mental health and suicide prevention programs for Indian women 

veterans. There are now no culturally competent mental health programs for Indian veterans. 

Indian women veterans, particularly those with MST/PTSD are at a very high risk because of the 

cultural consequences of their experiences. This legislation must address this issue. 

S. 764 V&MLS takes no position on this legislation. 

S. 804 V &MLS strongly supports this legislation. We recommend that the same or similar 

measures as suggested for S. 681 be included in this legislation. Women veterans, regardless of 

cthnicity have for too long been second citizens in the male environment of VA facilities. "She" 

has bome the burden as well, often with more severe mental and emotional trauma than her male 

comrades in arms, frequently being far more reluctant to self-identify as a veteran. The very 

nature of modem warfare distributes the risks and the trauma evenly among the genders. This 

legislation is overdue. 

S. 899 V &MLS has no comment on this legislation. 

Accountability and Whistleblower Protection V&MLS supports this legislation 

8.2210 V&MLS strongly suppons this legislation as it will provide a degree of integration of 

health care which is not always present even in larger medical centers. This provides an extra 

protective layer to veterans' health care which will be most effective in those times in which 

there is a crisis and extraordinary measures are necessary. 

Seryjne our Rural Veterans Act of 2017 

This legislation would support and extend coordination between the Department of 

Veterans Affairs (VA) and Indian Health Services (IHS) and other tribal health 

organizations serving rural veterans across the country. It also has the potential to create a 

pipeline for health care providers to serve rural communities, where veterans struggle to 

access quality health care. Finally, it would build the force of health care providers 

educated in the unique needs of rural veterans, including health needs and access in rural 

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Association 

Veterans & Military Law Section 

health care delivery systems. For these reasons, this legislation has the potential for great 

positive impact on rural veterans. 

Rural residents face barriers to many services that urban residents do not, and this 

includes access to basic health care. For example, according to a recent report from 

Grantmakers in Aging, rural residents experience higher rates of chronic disease, greater 

impacts from the national opioid epidemic, and higher rates of preventable deaths. These 

issues impact rural veterans as well, as noted by the Office of Rural Health, even though 

rural veterans are often eligible for more health care services than their civilian 

counterparts. For rural veterans who are eligible for health care at IHS facilities, barriers 

created by rural isolation can be exacerbated by lack of coordination between the VA and 

IHS, which creates confusion about eligibility and discourages rural veterans from seeking 

appropriate care. Improved coordination between the VA and IHS would result in 

improved access and quality of care for rural veterans eligible for services from both 

organizations. 

To ensure this legislation has the greatest positive impact on the most vulnerable and 

underserved rural veterans, some issues related to program location and curriculum 

should be considered and addressed. In addition to the points below, the drafters and the 

Committee should reach out to and engage with tribes directly, particularly those that have 

contracted to provide health services directly to their members and veterans on their 

reservations. The tribes may have additional issues or thoughts that would not be obvious 

to others, and outreach for direct input would be most consistent with the federal 

Government's trust obligations. 

Defining "Rural or Remote Area" 

The draft legislation leaves to the Secretary's discretion the definition of"rural or remote 

area" for purposes of both loan repayment and locating the pilot program to establish 

medical residency programs serving rural veterans in Indian country. Defining "rural" and 

"remote rural" is no simple task. If the pilot program is to address communities in which 

ru•·a lity most significantly impacts access to quality health ca1·e, it should be located in 

states with larger relative land area, where rural veterans are truly isolated from urban 

resources. One measure of rurality that accounts for not only population, but also distance 

to the nearest metropolitan area, is the Index of Relative Rurality. To focus resources for 

greatest impact, Secretary could identify potential program locations by cross-referencing 

the location's IRR score with data on health care workforce shortages, numbers of rural 

veterans enrolled in the VHA, and numbers of rural veterans who are enrolled tribal 

members. The draft legislation could offer the Secretary more specific guidance on this 

process by more clearly defining "rural or remote area." 

Cultural Awareness 

The draft legislation acknowledges the need for education on unique health needs of 

veterans, and rural veterans in particular. One critically-important topic to include in the 

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Veterans & Military Law Section 

curriculum is cultural awareness in diagnosis and treatment. When a rural veteran's 

culture influences the way that veteran communicates health symptoms and mental health 

distress, the health care provider must be aware of those cultural differences in order to 

accurately evaluate and diagnose the veteran and provide culturally-appropriate basic and 

alternative care. The draft legislation leaves to each facility the task of developing 

curriculum and training the medical residents and faculty. However, to ensure consistent 

training that comprehensively prepares health care providers to address cultural issues, 

the legislation should offer more specific guidance regarding the training curriculum or 

provide for a uniform curriculum that includes cultural competence instruction. This is 

another point on which to consult with tribes directly, as well as with experts in culturallyinformed diagnosis and treatment of chronic illness and mental health conditions. 

These comments were prepared in consultation with the Veterans Advocacy Clinic and 

Margery Hunter Brown Indian Law Clinic, both located in the Alexander Blewett l/1 School of 

Law at the University of Montana, of which the Director, Prof. Hillary Wandler, is a 

contributing member of The Federal Bar Association and ofV&MLS. We deeply appreciate 

her contribution to this discussion of one aspect of the considerable needs of Indian 

veterans, who serve this country in far greater proportion than any other ethnic group. 

Also contributing to these comments and preparation is Thomas Bandzul, Esq. Legislative 

Counsel for Veterans and Military Families for Progress; a member of The Federal Bar 

Association and V&MLS 

---------------------------- Respectfully submitted, ------------------------- Carol Wild Scott, Esq. 

Legislative Chair 

The Veterans & Military Law Section 

Federal Bar Association 

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Year Oispositior Affirmancf Percent of Dispositions Reversed/Remanded 

2016 3717 457 87.71% 

2015 3522 445 87.37% 

2014 3218 589 81.70% 

2013 3076 714 76.79% 

2012 3610 1061 70 61 

2011 3892 1051 73.00 

2010 3803 741 80.52% 

2009 3270 511 82.54% 

2008 3542 693 80.43% 

2007 3211 1098 

2006 2135 448 79.02% 

2005 1281 271 78.84% 

2004 1337 155 88.41% 

2003 2152 94.01% 

2002 972 

2001 2853 

2000 1619 
201 

LETTER FROM LT. GEN. MICHAEL S. LINNINGTON (RET.), CHIEF EXECUTIVE OFFICER, 

WOUNDED WARRIOR PROJECT


517apWWP1.eps
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Woundtd \\'llt'l"ior Projed 

4899 & Iron Road. Suite 300 

}it.lwmVIllo, Florld11 ilZ2SO 

m 9ouoo.7350 

II UOU06.73.7 

_I_ 

WM:NKD WAR&IOI .. e.n:cr 

honors, awards, and benefits in recognition of their service-accolades and opponunities that 

they rightly deserve. Their caregivers help tl1e disabled walk and eat, tend to wound care, or take 

them to their medical appointments, and rarely receive honors and awards. These caregivers are 

an incidental population, one thai has received policy ancntion only as a consequence of !he 

focus on the ones for whom they provide care. Yet their value is enom1ous. Military caregivers 

provide benefit to no! only their loved one, but also to society. The care they render helps reduce 

health care costs to the government and society.' 

Though WWP's mission is lo assist caregivers of the post-911 I generation, we recognize that the circumstances 

described above are no less tn•e for the caregivers of previous generations and. for tl1is reason, we would 

wholeheanedly support legislation that would improve the lives of pre-9/ 1 I caregivers without hurling 

caregivers of the post-9/ 1 I generation. 

We do have concerns, however, that the portions of S. 591 that would expand the current Family 

Caregiver Program to prior generations - as drafted and at the current moment - would not accomplish this 

goal. We lake this position in 1he comexl of (I) the challenges the Dcpanment of Veterans Affairs ("VA") has 

faced while implementing the Family Caregiver Program and (2) the lack of an approprialion in this bill that 

would ensure VA has the means to care for an infl ux of new caregivers. 

As the CommiHee is aware. even wilh its currenl scope serving only post-9/ 11 caregivers, VA has had 

significant challenges implementing the Family Caregiver Program. Several weeks ago, these challenges came 

to a head. and VA paused a ll revocations from the current program pending a comple1e review. WWP and 

other veterans groups have been in regular conversalions with VA and congressional and other stakeholders 

about what improvemcnrs to the program arc necessary. Rather than detail those conve1'Sations here, I am 

attaching as Exhibit A a letter that WWP's Chief Executive Officer transmitted to Secretary Shulkin last week. 

I am addi!ionally attaching as Exhibit B another letter from the Elizabelh Dole Foundation !hal WWP and many 

other vc1erans' organizations joined in signing. 

Like all Members of the Committee, and like all of the organizations testifying here today, we arc 

deeply invested in the success of the Family Caregiver Program. We are concerned tl1a1, at a time when VA is 

struggling to implement the program - and when anger and frustralion regarding the program arc pervasive 

1 Terri Teniclian, et. al., RAND Corporation, llidden Heroes: Americt1's Milittuy Caregivers I - 2 (2014), 

available at hup://www.rand.org/contentldatnfrand/pubslresearch _ reports!RR400/RR4991RA N D _ RR 499 .pdf. 

DUTY * HONOR * COURAGE * COMMITMENT * INTEGRITY * COUNTRY * SERVICE 

........................................................................ ........................................................................ ........................................................................ 

........................................................................ 
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Wou.oded \\'uriol' Ptojod 

48!19 Bollort Rood. Sultc 300 

J.c.klonvillft, Florida !12256 

II oou 00.7350 

II 904.296.7347 

among enrollees - expansion to prior generations might stretch current reso rce.~ and processes too th in. 

jeopardizing the integrity of the program and the services that it provides. We arc concerned that such an action 

might set the program up for failure, which would be detrimental to caregivers of post-9/11 and pre-9/11 

generations alike. 

This is especially so given the lack an aPI>ropriation inS. 591 that is sufficient to cover the needs o f the 

entire military caregiver community. We understand from our conversations with VA that costs of the current 

progmm have ballooned far past what was originally contemplated, and we suspect that cost concerns have 

created challenges with implementation. Were the program to be expanded to prior generations witholll a 

corresponding appropriation. this situation would be greatly exacerbated, particularly as the pre-9/ 11 

generations enter old age. We arc concerned that such an action would force VA to further constrict eligibility 

and services. 

We want to stress that our position is not that the Family Caregiver Program should not be expanded; in 

fact, as noted above, we believe strongly that caregivers of prior generations arc no less deserving of services 

than those of post-9/ 11 gcnemtions. Rather, our position is that we should accomplish this goal in a way that is 

both sustainable and docs not jeopardize the existing Family Caregiver Program, on which so many rely. We 

look forward to working with any and all stakeholders to make this a reality. 

S. 681 - Deborah Sampson Act of 2017 

WWP supports the Deborah Sampson Act and its goal of improving VA 's programs and services for 

female veterans.! We agree that, especially given the growing number of women veterans, there is a pressing 

need to make VA 's programs and services more accessible. Of the many beneficial provisions included in the 

Deborah Sampson Act, we are panicularly supponive o f those relating to peer-to-peer assistance and 

reintegration and readjustment counseling. 

In our experience. peer-to-peer support is critical to recovery for many warriors. According to WWP's 

201 6 Annual Warrior Survey Results, more than half of those surveyed, or 51.7% percent, used ta lking with 

2 Although WWP suppons the Deborah Sampson Act as a whole, we do not take a position on the Sense of 

Congress proposed in Section 504. 

DUTY * HONOR * COURAGE * COMMITMENT * INTEGRITY * COUNTRY * SERVICE 

''uuruh·J\\Ilftmlprujet:l Ul'): 

........................................... ............................. ......................................................................... 

......................................................................... 

........................................... ............................. 
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Woundtd \\'llt'l"ior Projed 

4899 & Iron Road. Suite 300 

}it.lwmVIllo, Florld11 ilZ2SO 

m 9ouoo.7350 

II UOU06.73.7 

_I_ 

WM:NKD WAR&IOI .. e.n:cr 

another Operation Enduring Freedom, Operation Iraqi Freedom, or Operation New Dawn veteran as a resource 

to address mental health issues. The only more frequently utilized resource was VA Medical Centers! 

Within the context of female veterans, peer-to-peer support is a particularly important tool to break 

through seclusion and isolation. As the Committee is aware, shifts in perception of militruy demographics are 

slow-moving, and many on either side of the civilian-military divide still think of members of the Am1cd Forces 

as male. Particularl y when combined with injuries to menta l health sustained in service, these preconceived 

notions can be hannful to reintegration and recovery. By connecting female veterans with one another, peer-topeer assistance can empower female veterans to connect with each other and their communities. 

In th is same vein, WWP is highly supportive of permanently authorizing reintegration and readjustmem 

counseling services for women in group retreat seuings. Not only has VA's pilot program has been highly 

successful, WWP has seen similarly encouraging results in its own similar programming. At WWP, we have 

held 69 female-only single and multi-day rehabilitative retreats for over 700 female veterans with mental health 

challenges. 95% of participants reponed that the retreats were a catalyst for receiving or continuing mental 

health support, and 96% were satislied with their overall experience. We arc hopeful that, through this 

legislation, these results can be replicated on a larger scale. 

Thank you for the opportunity to offer our views on pending legislation today, and we look forward to 

working with you to move some of these important ideas through the legislative process. 

3 Christine Borger et. al., Westat, Inc., Wounded Warrior Project Survey Repon of Findings 61 (20 16), 

available ar https:l/www. woundedwarriorproject.org/media/264 I /20 16-wwp-annual-warrior -survey .pdf. 

DUTY * HONOR * COURAGE * COMMITMENT * INTEGRITY * COUNTRY * SERVICE 

........................................................................ ........................................................................ ........................................................................ 

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205 

EXHIBIT A 


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WoW>de<l Warrior Pfole<:O 

-t81)9 & Uort Ro.'\rl, Suilt 300 

Jocksolwillo, Florida 32Z58 

El 004.206.7350 

II 904.2116.7347 

May9, 20 17 

The Honorable David Shulkin 

Secretary of Veterans Affairs 

United States Depanmcnt of Veterans Affairs 

8 10 Vermont Avenue, N.W. 

Washington. D.C. 20420 

Re: VA Review of the Famil y Caregiver Program 

Dear Secretary Shulkin: 

1f&CNHD 

~ WARRIOR PIIG.I.l..T• 

I want to thank you for the work you and your team have done over the last three weeks 

reviewing the Family Caregiver Program (the "Program''). As you know, Wounded Warrior 

Project ("WWP") led the charge for the creation of the Program in 2010 and has worked with VA 

and Congress to address challenges with implementation. We remain deeply committed to making 

the Program as effective as possible as we address the needs of those who care for the most 

seriously injured veterans of the post-911 1 generation. 

As you continue to review the progrJm, we ask you to take into account the following 

considerations. Please note that this is not an exhaustive list and that we will continue to work 

with you, your staff, and the greater community to identify challenges and create improvements. 

I. Consistency and T ransparency in Eligibility Determinations. We have seen significant 

variations from location to location in eligibility and tier level determinations and also in 

the type of notification provided to caregivers and veterans. We hope to work with VA to 

create mechanisms for consistency and transparency. At a minimum, veterans who are 

revoked or who have their tier level adjusted should receive a detailed explanation of 

rationale in the context of38 C.F.R. § 71. Such explanation must be sufficiently detailed 

to allow the veteran to usc it to challenge the detemtination. 

2. En hance the Appeals Process. One essential mechanism for consistency and fairness is 

a meaningful appeals process in which veterans can challenge erroneous eligibility and tier 

level detemtinations. Despite the widespread allegations of wrongful revocations that gave 

rise to this review, in our experience, successful appeals through the VHA system have 

been extremely rare. Given the nature of the Program, adjustments should be made to th e 

clinical appeals process for review of e ligibility and tier level determinations. 

DUTY * HONOR * COURAGE * COMMITMENT * INTEGRITY * COUNTRY * SERVICE 

\\uuncl(d\\olrnorpro~l'c1 o~ ······································································· ........................................... ............................· . ........................................................................... ········································································ 
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These adjustments include: ( I) providing tbe same due process and appellate rights that 

ex ist in the VBA context; (2) continuing benefits until appeals arc resolved; (3) allowing 

tbc veteran to present private medical opinions; (4) allowing the veteran to appear for a 

personal hearing to bring forth additional evidence; and (5) allowing tl1e veteran to provide 

sworn testimony under the guidance of an accredited representative. 

3. Ensure Meaningful Consultation with the Medical Care T eam. The law and 

regulations arc clear that decisions about eligibility and tier level should be made by the 

veteran's medical care team. Nonetheless, caregivers and veterans have reported that 

caregiver support coordinators ("CSCs'') wield strong influence over medical care teams, 

and that, in some cases, CSCs make decisions on their own. Safeguards must be 

established to ensure that the medical care team is more than a rubber stamp in the decision 

making process, and that medical care team involvement is transparent to the veteran and 

caregiver. 

4. Require Communication with Caregivers. Caregivers must be present and involved in 

assessments that give rise to change in tier level or revocation. Especially where mental 

health challenges arc involved, caregivers can provide the insight necessary to reach correct 

and comprehensive conclusions. Nonetheless, we have heard many accounts of caregivers 

who were not allowed to participate. One account from a survey WWP conducted in 2014 

is below: 

My husband was imen,iewed by his VA physician. but !was not allowed to go i11 

and assist him and help him remember things and help give an accurate picture of 

his jimctia11ing a11d health. His physicianlwd only seen him o couple ofli mes. we 

were told this was the reason he was going i11 for an inlerviewlassessment. The 

assessmem IV(I.S supposed to provide the unde~:standing of my warrior's needs. 

Since I was 1101 there. and my warrior does not recall the entire interview, I do not 

know if the doctor really go/ a good understanding of the situation. 

Although this account is dated. we continue to hear similar stories of this nature, especially 

in certain locali ties. 

5. Review Revocations and Tier Reductions. We know you are aware of the many veterans 

and caregivers who have reported erroneous detcrrninations, and that is why you are 

conducting this review. Given these rcpons, in the interest of fairness, we ask for review 

of all revocations and tier reductions that have taken place since program inception. We 

understand that this would place a significant workload on program staff and therefore 

propose a triaged approach in which cases where tier 3 veterans were completely revoked 

DUTY * HONOR * COURAGE * COMMITMENT * INTEGRITY * COUNTRY * SERVICE 

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are addressed first. An adjustment this dramatic should be extremely rare and suggests 

irregularities. 

6. Improve Transition Scn •iccs. As rrogmm stipends were not intended to be a permanent 

benefit in all situations, there will cenainly be cases where veterans are no longer eligible 

for the l'rogram due to changed circumstances. Where this occurs, VA should provide 

transition services and education regarding health care options, employment possibilities, 

and vocational training. CSCs should be provided with a comprehensive list of transition 

services available in their community through VA, state veterans agencies. and the private 

and nonprofit sectors. 

7. Extend the Moratorium on Revoca tions until the Review is Complete. We understand 

the moratorium expired yesterday blll that your review will continue for several months. 

As problems with the program have already been acknowledged, we should not allow 

caregivers to be removed from the program until those problems are fixed. 

Caregivers provide a vital service, often giving up careers and opponunities in order to 

care for our nalion's heroes, and we owe il to them to provide the support they need. We look 

forward to continuing to work with you, your staff, and the greater community to address these 

issues and others that arise through the course of our conversations. 

Sincerely, 

ll. Gen. MichaelS. Litutington (ret.) 

Chief Executive Officer 

Wounded Warrior Project 

DUTY * HONOR * COURAGE * COMMITMENT * INTEGRITY * COUNTRY * SERVICE 

\\uunch•d\\ill nurpnJft"t;l o~ 

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The Honorable David J. Shulkin 

U.S. Department of Veterans Affairs 

810 Vermont Ave. NW 

Washington, D.C. 20571 

Dear Secretary Shulkin, 

May 15,2017 

We applaud your recent decision to halt t he revocation process and conduct an internal review of the Program 

of Comprehensive Assistance for Family Caregivers. Your decision is an acknowledgement that the VA cares 

about the success of this program and is committed to the difficult task of improvement. Now that you have 

the spotlight on this program, we urge you to capitalize on this momentum to implement changes that will 

improve its structure and support. 

As you conduct the review, we, as organizations with a direct line to caregivers, would like to offer some 

perspective on the issues that have challenged this program since its inception. These thoughts are informed 

by the experiences and stories of caregivers themselves, and can be broken down into four main themes. 

Transparency 

Perhaps the greatest concern we hear is the lack of clarity and transparency in communicating aspects of the 

program to veterans, their caregivers, and outside partners. We encourage you to: 

1. Mandate that upon revocation or tier lowering for failing to meet eligibility requirements, caregivers 

receive their veteran's eligibility assessment "scoresheet," within one week of the decision, so that 

they can prepare a proper appeal should they choose to do so. 

2. Ensure that caregivers have a chance to provide feedback to medical care teams and Caregiver 

Support Coordinators (CSC) as they make eligibility and tier level determinations. Currently, many 

caregivers are not included in that process. 

3. Establish an internal communications plan that originates in the VA Central Office and conveys clear 

and consistent policies across all Veteran Integrated Service Networks (VISNs). 

4. Create a newsletter or listserv that disseminates up-to-date information about the program to military 

service organizations (MSOs), veteran service organizations (VSOs), and other not for profit 

organizations active in the caregiver space. 

Standardization 

Hand in hand with transparency comes standardization of Caregiver Program processes. Because each VA 

Medical Center operates as its own entity, the execution of the program can vary from VISN to VISN. While we 

respect each Center's ability to self-determine its own needs, when operational authority supersedes policy 

implementation, it creates an inconsistent, and at times unfair, program environment for caregivers. To 

remedy this, we recommend the following: 

1. Grant the National Director (Meg Kabat) more operational authority to ensure that national policy is 

executed properly on a regional level. Limit t he VISN's authority to change or adapt Caregiver Program 

policy in the course of their day-to-day operations. 

2. Finalize and disseminate a policy directive that establishes a standard appeals process and clarifies 

eligibility requirements. 
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3. Update and improve the notices that caregivers receive upon being removed or lowered a tier within 

the program. Ensure that caregivers who are not removed for cause continue to receive their stipend 

for 90 days after removal to allow for adjustment and minimize financial burden. 

4. Create an organizational document or flow chart (similar to the Integrated Disability Evaluat ion System 

(IDES) timeline) detailing the structure of the VA Caregiver Program, the appeals process, and points 

where the veteran and caregiver must make decisions. 

S. Update the VA Caregiver Program website regularly to reflect the most accurate information, including 

the fi nal "Roles and Responsibilities" document . 

6. Keep the moratorium on program removal in place until the identified issues have been addressed. 

Education 

Many of t he obstacles to the success of the VA Caregiver Program can be overcome through education of 

caregivers, service providers, and the public. Right now, many caregivers do not understand t he scope and 

nature of the program, and we, as organizations, do not always feel empowered to give them accurate 

information. There are several ways to address this: 

1. Begin communicat ing with caregivers and veterans before they enter the VA system (i.e. through TAP, 

the IDES process, within Warrior Transition Units, etc.). 

2. Create a guide for caregivers and family members that communicates all of their options for support 

within the VA system (not just the caregiver Program). 

3. Implement grand rounds training with key service providers and medical facility staff to educate them 

on the importance of t he caregiver in the recovery of the veteran. 

4. Communicate updates and changes within the Caregiver Program to caregivers, not for profit 

organizations, and other partners to ensure that we are communicating the most accurate information 

to our constituents. 

Validation 

Caregivers are invaluable in the recovery and support of our nation's veterans. And yet many times they are 

still not regarded as integral members of t he veterans' care team. As part of its commitment to becoming the 

best customer service organization in government, the VA must fully embrace the caregiver and family 

members as partners in the path towards rehabilitation and recovery. 

1. Currently, the revocation and tier lowering processes feel like a penalty for the caregiver, who may 

not be financially or emotionally prepared to leave the program. Upon improvement of the veteran, 

the VA should begin to regularly check in with the caregiver to prepare him or her for the possibility 

of revocation or tier lowering. Such an initiative could include referrals to employment programs, 

messages of encouragement, and information regarding other programs offered by the VA. 

2. Caregivers largely neglect self-care in favor of their caregiving responsibilities. Instituting "wellness 

checks" for caregivers in tandem with t heir veteran's medical appointments would ensure that the 

caregiver is taking proper care of his/her mental and physical health, thus preventing caregiver 

burnout and illness. 

We hope these recommendations will be useful to you as you conduct your review in the weeks and months 

ahead. Please call upon us to assist you as you undertake this tremendous task; the burden of ensuring support 

for these caregivers does not- and should not- fall to the VA alone. As military community organizations 

dedicated to championing caregivers, we are committed to working with you to support, educate, and inform 

caregivers nationwide. 
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