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43–047 2008

LEGISLATIVE HEARING ON THE 

‘‘VETERANS DISABILITY BENEFITS CLAIMS 

MODERNIZATION ACT OF 2008’’ 

HEARING 

BEFORE THE

SUBCOMMITTEE ON DISABILITY ASSISTANCE AND 

MEMORIAL AFFAIRS 

OF THE

COMMITTEE ON VETERANS’ AFFAIRS 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

APRIL 10, 2008 

Serial No. 110–81 

Printed for the use of the Committee on Veterans’ Affairs 

( 


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COMMITTEE ON VETERANS’ AFFAIRS 

BOB FILNER, California, Chairman 

CORRINE BROWN, Florida 

VIC SNYDER, Arkansas 

MICHAEL H. MICHAUD, Maine 

STEPHANIE HERSETH SANDLIN, South 

Dakota 

HARRY E. MITCHELL, Arizona 

JOHN J. HALL, New York 

PHIL HARE, Illinois 

MICHAEL F. DOYLE, Pennsylvania 

SHELLEY BERKLEY, Nevada 

JOHN T. SALAZAR, Colorado 

CIRO D. RODRIGUEZ, Texas 

JOE DONNELLY, Indiana 

JERRY MCNERNEY, California 

ZACHARY T. SPACE, Ohio 

TIMOTHY J. WALZ, Minnesota 

STEVE BUYER, Indiana, Ranking 

CLIFF STEARNS, Florida 

JERRY MORAN, Kansas 

HENRY E. BROWN, JR., South Carolina 

JEFF MILLER, Florida 

JOHN BOOZMAN, Arkansas 

GINNY BROWN-WAITE, Florida 

MICHAEL R. TURNER, Ohio 

BRIAN P. BILBRAY, California 

DOUG LAMBORN, Colorado 

GUS M. BILIRAKIS, Florida 

VERN BUCHANAN, Florida 

VACANT 

Malcom A. Shorter, Staff Director 

SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL AFFAIRS 

JOHN J. HALL, New York, Chairman 

CIRO D. RODRIGUEZ, Texas 

PHIL HARE, Illinois 

SHELLEY BERKLEY, Nevada 

DOUG LAMBORN, Colorado, Ranking 

MICHAEL R. TURNER, Ohio 

GUS M. BILIRAKIS, Florida 

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

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

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

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

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

is further refined. 


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C O N T E N T S 

April 10, 2008 

Page 

Legislative Hearing on the ‘‘Veterans Disability Benefits Claims Modernization Act of 2008’’ ................................................................................................... 1 

OPENING STATEMENTS 

Chairman John J. Hall ............................................................................................ 1 

Prepared statement of Chairman Hall ........................................................... 41 

Hon. Doug Lamborn, Ranking Republican Member ............................................. 4 

Prepared statement of Congressman Lamborn .............................................. 43 

WITNESSES 

U.S. Court of Appeals for Veterans Claims, Hon. William P. Greene, Jr., 

Chief Judge ........................................................................................................... 5 

Prepared statement of Chief Judge Greene ................................................... 43 

U.S. Department of Veterans Affairs, Bradley G. Mayes, Director, Compensation and Pension Service, Veterans Benefits Administration .......................... 31 

Prepared statement of Mr. Mayes ................................................................... 66 

American Legion, Steve Smithson, Deputy Director, Veterans Affairs and 

Rehabilitation Commission ................................................................................. 19 

Prepared statement of Mr. Smithson .............................................................. 56 

Disabled American Veterans, Kerry Baker, Associate National Legislative 

Director ................................................................................................................. 16 

Prepared statement of Mr. Baker ................................................................... 46 

National Veterans Legal Services Program, Ronald B. Abrams, Joint Executive Director .......................................................................................................... 17 

Prepared statement of Mr. Abrams ................................................................ 52 

Paralyzed Veterans of America, Carl Blake, National Legislative Director ....... 22 

Prepared statement of Mr. Blake .................................................................... 64 

Veterans of Foreign Wars of the United States, Eric A. Hilleman, Deputy 

Director, National Legislative Service ................................................................ 20 

Prepared statement of Mr. Hilleman .............................................................. 60 

SUBMISSIONS FOR THE RECORD 

American Veterans (AMVETS), Raymond C. Kelley, National Legislative Director, statement .................................................................................................. 74 

Gold Star Wives of America, Inc., Rose Elizabeth Lee, Chair, Government 

Relations Committee, statement ......................................................................... 75 

National Organization of Veterans’ Advocates, Inc., Richard Paul Cohen, Executive Director, statement ................................................................................. 77 

Vietnam Veterans of America, Richard Weidman, Executive Director for Policy and Government Affairs, statement ............................................................. 80 

MATERIAL SUBMITTED FOR THE RECORD 

Post-Hearing Questions and Responses for the Record: 

Hon. John J. Hall, Chairman, Subcommittee on Disability Assistance 

and Memorial Affairs, Committee on Veterans’ Affairs, to Bradley 

Mayes, Director, Compensation and Pension Service, Veterans Benefit 

Administration, U.S. Department of Veterans Affairs, letter dated May 

19, 2008, and VA responses ......................................................................... 84 


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LEGISLATIVE HEARING ON THE 

‘‘VETERANS DISABILITY BENEFITS CLAIMS 

MODERNIZATION ACT OF 2008’’ 

THURSDAY, APRIL 10, 2008 

U.S. HOUSE OF REPRESENTATIVES, 

COMMITTEE ON VETERANS’ AFFAIRS, 

SUBCOMMITTEE ON DISABILITY ASSISTANCE

AND MEMORIAL AFFAIRS, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:05 p.m., in Room 

334, Cannon House Office Building, Hon. John Hall [Chairman of 

the Subcommittee presiding]. 

Present: Representatives Hall, Rodriguez, Hare, Lamborn, and 

Bilirakis. 

OPENING STATEMENT OF CHAIRMAN HALL 

Mr. HALL. Good afternoon. The Veterans’ Affairs Disability Assistance and Memorial Affairs Subcommittee hearing on the ‘‘Veterans Disability Benefits Claims Modernization Act of 2008’’ will 

come to order. 

I would ask everyone to rise for the Pledge of Allegiance. Flags 

are located in the front and the rear of the room. 

[Pledge of Allegiance.] 

Mr. HALL. Thank you. I am proud to be here today and that you 

have all joined us, and I am honored by your presence and to be 

joined by Ranking Member Lamborn in a bipartisan effort to 

present this historic legislation to reform the U.S. Department of 

Veterans Affairs (VA) Benefits Claims Processing System. 

This is in no way a unilateral effort. Several of the contained 

provisions within this legislation were derived from independent 

bills offered by Members of this Committee on both sides of the 

aisle. 

I am confident that when it is voted on, it will leave this Committee as a seamless, fluid piece of legislation that will grant the 

wounded warriors of this great country the service they deserve. 

I once read, ‘‘Veterans’ programs are not perfect. Much remains 

to be done by way of improvements along forward-looking and constructive lines. The dominant problems are the carryover from past 

decades of a backward-looking pension philosophy and our failure 

to adjust the existing veterans’ programs to fundamental changes 

in our society.’’ 


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I found this quote to be striking as it also captures my observations of the Veterans Benefits Administration (VBA). Yet, unfortunately, those observations were made by Omar Bradley in 1956. 

We should have listened to the General then, but it is imperative 

that we do it now, especially since we have our troops in harm’s 

way around the world. 

The Subcommittee has conducted extensive oversight during this 

Congress and listened to the testimony of disabled veterans and 

their families and survivors who explained their problems with VA 

benefits. 

Many of their concerns led back to issues with claims processing 

delays, denials, and avoidable remands. For a moment, I want to 

reflect on what they said since these are the very people at the 

heart of this bill. 

We have heard from a paralyzed veteran who went a year without compensation because of lost files and poor communication with 

VA. This put his family in dire financial stress and forced his children to drop out of college. 

There were parents who talked to us about suicide and mental 

health problems and the inability of their beloved child to get VA 

healthcare. In many cases, service connection is necessary to accessing that care. 

Another veteran who suffered a traumatic brain injury and an 

amputation along with his wife confronted us on how exhausting 

it is to figure out VA benefits and the gaps that exist because the 

model is outdated and archaic even for a case that is so obviously 

clear-cut and simple. It does not account for the loss in their quality of life or for their real-world needs. 

These unfortunate occurrences are not just affecting veterans 

from current wars. They affect veterans of every age and from 

every conflict. 

I heard a story of a World War II veteran at a meeting last week 

in New York, who had a mortar shell that landed directly in front 

of his face. We heard this gentleman recalling the medic who attended him at the battlefield and his difficulty in telling the difference between his burns and his beard. 

After being taken to a medical facility, he learned that this incident had never been reported by the medic. As a result, this brave 

soldier who served his Nation in time of dire need had to fight the 

VA for 51 years before being awarded his benefits due to the requirements of finding witnesses of the event. The burden of proof, 

while statutorily sound, as interpreted by VA is all too often impossible or extremely difficult for veterans to understand and to complete. 

As he stood and told me this story, I watched as he grasped a 

folder that contained his disability claim and heard him state that 

he would never let it go in fear that the VA would rescind his claim 

and take back his money. 

For too long, VBA has been allowed to skirt their responsibility 

to reward our veterans with the same type of selfless, heroic service that veterans themselves gave to our country. However, reciprocity is at hand. 

The Veterans Disability Benefits Commission, Dole-Shalala Commission, and many other task forces have made recommendations 


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to improve the system. We have data from the Institute of Medicine, the Center for Naval Analyses, the Institute of Defense Analyses, and several U.S. Government Accountability Offices (GAO), 

and Inspector General (IG) reports that highlight inconsistencies, 

variances, disparities, errors numerous areas within the claims 

processing system in dire need of reform and modernization. 

The Veterans Service Organizations (VSO) have shared their 

ideas and experiences to reform the VBA and have played an integral part in shaping this legislation. 

Expert medical, legal, and technological witnesses enlightened us 

on what is possible in our modern world. VA employees have also 

worked with us to tackle these problems and there is no doubt that 

this is a workforce dedicated to assisting disabled veterans. 

Unfortunately, VA employees work in a broken, outdated environment. So I am grateful for them and everyone else who has 

been willing to work with us on developing the improvements this 

legislation seeks to advance. 

With the ‘‘Veterans Disability Benefits Claims Modernization Act 

of 2008,’’ we hope to address the central issues that have led to the 

enormous and mounting claims backlog, delays in processing, 

avoidable errors, inconsistencies in ratings, and lack of accountability that amounts to a system of injustice, at least as perceived 

by many of our veterans. 

The provisions of Title I of this bill encapsulate several systemic 

issues that address evidence problems with post traumatic stress 

disorder claims (PTSD), as well as requiring the VA to study, report, and implement a plan for readjusting the VA’s schedule for 

rating disabilities so that it includes medically recognized standards, codes, and practices, and appropriate compensation for the 

average loss of earnings capacity, quality of life impacts, mental 

health parity, encouragements for vocational rehabilitation, and 

creation of an Advisory Committee on Disability Compensation. 

Title I would also revamp the VBA work credit and management 

systems; require certification and training for VBA employees and 

managers; assess annually quality assurance, expedite fully developed claims; require a check list provided for evidence necessary to 

process claims; require a report on employing medical professionals 

at VBA, assign partial ratings for severely injured veterans while 

deferring other conditions, enhance information technology that includes a web portal for claims submission and tracking by veterans, that provides rules based, expert systems, and automated 

decision support; and would allow substitution for veterans who die 

while claims are pending, allowing qualified loved ones to step into 

shoes of the veteran and have time to submit and add information. 

I would like to thank Ranking Member Lamborn for his contributions to this part of the bill, especially those that would move the 

VA into the 21st Century in terms of how it handles information 

rather than the piles of paper with rubber bands and sticky pads 

on them that we have showcased during previous hearings in our 

Subcommittee. 

Title II of this bill addresses the servicemembers’ transition from 

the U.S. Department of Defense (DoD) to VA, with the creation of 

a single VA/DoD disability evaluation examination process whereby 

DoD determines fitness for duty and VA rates the level of severity. 


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This reduces the duplication for an injured or ill servicemember 

who must navigate two different systems at a time when they need 

support and assistance the most. 

Title III focuses on matters related to the United States Court 

of Appeals for Veterans Claims (CAVC). It would establish annual 

tracking requirements for the Court’s workload and gives the Court 

the authority to affirm, modify, reverse, or vacate, and remand decisions of the Board. The Court must also first decide all assignments of error raised by an appellant for each benefit claimed. 

Make no mistake, this is an ambitious landmark piece of legislation which will take a great deal of cooperation and collaboration 

on multiple fronts. No doubt this will need to be a collective effort 

that goes well beyond Congress and VA. It will require the support 

and expertise of the VSOs, DoD, leading experts and professionals, 

academics, technicians, and other government entities, all of whom 

bring information and experience to the table. 

I know that VA is moving already in the general direction of 

some of the efforts outlined in this bill and I applaud your efforts 

in this vein. They are not overlooked. 

Also, I do not want to fail to recognize the hard work and dedication of the VA employees throughout the entire VBA, from the Regional Office (RO) to the Central Office. I know that the problems 

we face today are the result of a culmination of events beyond their 

control which run the gamut from inadequate funding and poor 

leadership to a corporate culture that does not foster accountability. 

Just as I have heard stories of calamity, I have also heard stories 

of the care and compassion of VA employees who genuinely care 

about our veterans and work tirelessly to provide them with every 

service they can. 

But today, time is of the essence and we must stop the incomprehensible cycle of ignoring the lack of accountability for outcomes of 

claims at the VBA. Outcomes matter, not just process. I repeat, 

outcomes matter, not just process. And I believe that we need to 

modernize our Nation’s claims processing system to make it accountable and produce better outcomes for our veterans, their families, and survivors. 

Ladies and gentlemen, the time has come when we must envision 

a VA of the future and not leave Omar Bradley’s warning 

unheeded at the expense of another generation of our bravest and 

finest veterans. 

I now yield to Ranking Member Lamborn for his opening statement. 

[The prepared statement of Chairman Hall appears on p. 41.] 

OPENING STATEMENT OF HON. DOUG LAMBORN 

Mr. LAMBORN. Good afternoon and thank you, Chairman Hall. It 

is an honor to participate in this important occasion. 

The ‘‘Veterans Disability Benefit Claims Modernization Act of 

2008’’ still has far to go, but for the first time in a long while, I 

believe there is a proper alignment of thought and a cooperative effort to make substantial improvements to the veterans benefits 

claims process. 


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This bipartisan bill consists of a number of measures that have 

as their foundation the collective recommendations of Democrats, 

Republicans, Veterans Service Organizations, and two Blue Ribbon 

Commissions on Veterans Benefits. That is not to say this bill is 

flawless at this point in time or that there are not remaining snags 

to be worked out. Indeed, there are a couple of issues that cause 

me difficulty and one that I believe is critically flawed. 

I will elaborate more on these concerns in a bit, but I want to 

preface those remarks with the fact that I wholeheartedly agree 

with the intent behind even those provisions. Still, I am deeply concerned about unintended consequences that they may hold. 

Principally, I am troubled over the provision that would have VA 

concede presumption of a stressor for every person who served in 

theater of operation that was subject to combat. This could have 

enormous ramifications for the VA claims system and could potentially even increase the backlog. 

At the same time, I am sympathetic to what the provision attempts to accomplish. I believe an agreed-upon solution can be 

reached and I believe the expertise needed to arrive at such a fix 

is gathered here in this room today. 

My other concerns are less significant, but I remain concerned 

about what might occur if we codify certain regulations and leave 

less discretion for VA. 

I very much look forward to the testimony of our witnesses, including that of the VA. 

I hope that based upon recommendations made here, resolutions 

can be reached and this bill will acquire the momentum it needs 

to make the potential historic impact that it holds. 

Chairman Hall, I appreciate the favorable rapport that we share 

on this Subcommittee. And, I eagerly anticipate working with you 

and your staff during the short time left in this session to make 

some great progress for veterans. 

Thank you, and I yield back. 

[The prepared statement of Congressman Lamborn appears on 

p. 43.] 

Mr. HALL. Thank you, Congressman Lamborn. 

I would like to welcome all of our panelists testifying before the 

Subcommittee today and remind you that your complete written 

statements have been made a part of the hearing record. 

Please limit your remarks to 5 minutes so that we may have sufficient time to follow-up with questions once everybody has had the 

opportunity to provide their testimony. 

Joining us on our first panel is William P. Greene, the Chief 

Judge of the U.S. Court of Appeals for Veterans Claims. Hon. William P. Greene, you are now recognized for 5 minutes. 

STATEMENT OF HON. WILLIAM P. GREENE, JR., CHIEF JUDGE, 

U.S. COURT OF APPEALS FOR VETERANS CLAIMS 

Chief Judge GREENE. Good afternoon, Chairman Hall, Ranking 

Member Lamborn, Mr. Rodriguez, Mr. Hare. Thank you for the introduction and thank you for inviting me to be here today with you. 

I took the liberty to bring with me members of my Legislative 

Committee, Judge Al Lance and Judge Mary Schoelen, who on a 


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daily basis, are always available to you and your staff to answer 

questions about the Court. 

I am here today to discuss with you the ‘‘Veterans Disability 

Benefits Claims Modernization Act of 2008.’’ I appear today in my 

capacity as the Chief Administrative Officer of the Court and in the 

spirit of cooperation between the Legislative Branch and a national 

court of record. 

Almost 20 years ago, the Senate and House Veterans’ Affairs 

Committees of Congress realized the fruits of their labor when 

President Reagan signed into law the ‘‘Veterans Judicial Review 

Act.’’ That Act established a national court of record, then the 

United States Court of Veterans Appeals, to provide independent 

judicial review of adverse decisions by the Department of Veterans 

Affairs affecting veterans. 

Until that time, the VA was the only Federal agency whose decisions were not subject to review by the Judiciary. Since 1988, I believe the decisions and opinions by the Court have had a positive 

impact on the adjudication of veterans’ benefits by unifying and 

clarifying this new area of the law. 

In doing so, the Court has been faithful to the well-established 

concepts of appellate judicial review for the Federal Judiciary 

which includes not only the Article 3 courts, but also the Article 

1 courts. 

Thus, in carrying out the Court’s business, we have, as authorized by our enabling statutes, adopted the practices and procedures 

established under Title 38 of the United States Code and to those 

laws applicable to courts of the United States. Therefore, for at 

least the past 18 years, the Court, like all other courts, has maintained statistics concerning the Court’s work and has provided that 

information annually to the public and to Congress. 

The proposed legislation appears to codify the Court’s practice 

and seeks two items of information that are not currently provided 

in the Court’s annual report. There is no difficulty whatsoever in 

acquiring that additional information and surely it could be provided in future annual reports without a need to compel it statutorily as proposed in section 301. 

Concerning section 302 of the proposed legislation, I also must 

state that a litigant before the Court of Appeals for Veterans 

Claims generally may expect the same practices and procedures experienced in all other Federal courts. However, there can be exceptions because the U.S. Court of Appeals for Veterans Claims is a 

Court with specialized jurisdiction and, therefore, may have special 

rules applying to that unique jurisdiction. 

The part of section 302, however, that prohibits a government 

lawyer who appears as an officer of the court from raising a legitimate error that may provide justice to a veteran could create jurisprudential problems that interfere with the Court’s ability to perform its expected judicial responsibility. 

As stated in my prepared remarks, I leave it to the Secretary of 

VA and his General Counsel to speak directly to any potential ethical considerations that might arise from such a mandate. 

For sure the proposed legislation, if enacted, would add yet another factor to the delay equation that has peaked our collective interests. The Court already experiences thousands of requests to exVerDate Aug 31 2005 05:26 Dec 23, 2008 Jkt 043047 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 E:\HR\OC\43047.XXX 43047

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tend time for the appellant briefs and other documents to be presented to the Court. 

For the government to obtain written consent from appellants, 

many of whom are unrepresented, to raise or concede an error, invites the possibility of even more delay. Surely when Congress created the Court, it intended for justice to be done and for disputes 

to be resolved fairly and wisely. 

That part of section 302 that amends section 7252(a) by requiring the Court to decide all assignments of error raised by an appellant surely will have the effect of slowing down considerably the 

Court’s ability to resolve cases timely. 

Simply stated, a guiding principle of appellate judicial review is 

that when a Court can resolve a case based on a particular issue, 

it should do so without reaching unnecessary issues. The judges of 

the U.S. Court of Appeals for Veterans Claims follow that guidance 

and attempt to do so in every case. Indeed, if 20 issues are raised 

that lead you to the same result, why visit each of those 20 ways? 

I know there has been much discussion and comment about this 

circumstance, but I submit that if there is a question of law involved or where a ruling or another issue would indeed have a direct impact on how a proceeding would be conducted upon remand, 

the judges will endeavor to address those issues. If not, the appellant could seek reconsideration or, if viable, appeal to the Federal 

Circuit. 

And it must not be forgotten that although appellants have great 

faith in their arguments, as they should, they may not always prevail. When the Court decides that the Board of Veterans Appeals 

has committed a prejudicial error that affects the fairness of the 

proceedings, leading to a denial of a benefit the remedy is to vacate 

or set aside that decision and return it to the Board for corrective 

action. When that is done, the appellant obtains a readjudication 

and is also afforded the opportunity to provide more evidence and 

additional argument to include the ones that are related to the arguments on appeal to the Court. In essence, the matter is done all 

over. 

While some may see this as a hamster wheel effect, the reality 

is that the veteran still gets a fair chance to pursue his or her benefit. Arguments that are related to the cause of the remand necessarily change their impact once there is to be readjudication. 

Thus, it simply is not necessary to expend judicial time in addressing a matter that will be overcome by the evolving circumstances 

in the readjudication. 

But if the argument is addressed and the Court rules against the 

veteran, that ruling is binding in the case and the appellant loses 

the ability to make that argument during the readjudication unless 

he appeals that ruling to the U.S. Court of Appeals for the Federal 

Circuit and wins. Of course, to do that will consume even more 

time. 

In short, my statement outlines my concerns about the negative, 

and I am sure unintended, consequences, of this proposed legislation. Let me simply assure you that the Court is poised to conduct 

judicial review responsibly and in a manner that will ensure that 

all appellants not only have their day in court but also will receive 

a sufficiently fair decision. 


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Thank you. 

[The prepared statement of Chief Judge Greene appears on 

p. 43.] 

Mr. HALL. Thank you, Judge Greene, and thank you for being 

here today and sharing your expertise and experience with us. 

Could you elaborate on how the Court determined what it would 

place in its annual workload report and do you have any objections 

to the additions made to your annual report and categories? That 

is assuming legislation aside, for instance. 

Chief Judge GREENE. Right. As indicated, Chairman Hall, the 

Court, like other U.S. courts, maintains statistics annually. The 

Administrative Office of the U.S. Courts has a case management 

system that we emulate. And as a result, we maintain pretty much 

the same identifiers that the other Federal courts use for their statistics. We have been using that as indicated in our annual report 

for the past 18 years. 

The two additional items that are requested, I think one deals 

with numbers of cases that are over 18 months and then a breakdown of the specific types of cases such as single judge decisions, 

panel decisions, and full court decisions. We had not kept that information, but it is readily available. And as I indicated, that is 

just a matter of tweaking the annual report that we already provide. 

Mr. HALL. Thank you. 

You oppose section 302 of this bill, which essentially requires the 

Court to decide all allegations of error raised on appeal and mentioned that primarily in the interest of judicial economy, you do not 

address all the issues raised on brief by the appellant. 

However, you concede in your testimony that this is a serious 

problem for the Court and one which has been raised by many of 

the Bar who have the privilege to come before you. 

As you know, and as it has been raised repeatedly in numerous 

hearings before this Subcommittee, I read your reasons for opposing section 302 and wonder, do you think there are any Constitutional or other reasons as to why the CAVC should not be required 

to decide at least a preliminary opinion on errors or issues raised 

on the brief? 

Chief Judge GREENE. Well, initially I would say that just as a 

first blush of the statute, we always want to ensure that we maintain separation of powers. You have the Court, you have the legislature, and you have the executive. 

And, of course, the courts have specific responsibility in the area 

of conducting judicial review. The consideration of telling a court 

to decide all issues when, in fact, the court has the responsibility 

of deciding exactly what is needed to resolve the case, it just does 

not seem to serve any legitimate purpose unless it can be articulated well as to why those particular issues need to be decided. 

Mr. HALL. Well, let me just take another tack at it then, Judge 

Greene. I am sure there is much about your job that I cannot possibly know, especially after the brief time I have been here in Congress. 

But at the same time, we hear and see a stream of people talking 

about the hamster wheel that you referred to and the problem of 

issues being referred or a claim being referred up to the CAVC and 


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sent back down with a request for more information or more substantiation of one issue or one aspect of the claim and when that 

is provided could provide that it is sent back up again and then it 

is remanded back down again with another request or another aspect of the ruling. 

This process is where the term hamster wheel came about, which 

did not happen because of one or two cases, you know. So maybe 

you could suggest to me, is there something that we could or 

should do? 

I understand and support the concept of separation of powers, 

but we are dealing with a level of frustration that we are hearing 

from the VSOs, and from veterans themselves, and maybe you 

would have some suggestions for us. 

Chief Judge GREENE. Some fixing may be required where the adjudications are conducted. The Court is tasked with reviewing what 

has been conducted and then making a determination if it was 

done legally correct. If it was done legally correct, that would be 

the end of the matter unless they then appeal to the Federal Circuit. 

The hamster wheel effect as it applies to the Court is pretty 

straightforward. The issue that comes back to the Court is that the 

claim remains denied. The question is, upon what basis has it been 

denied the second time because when we remand the case the first 

time, we have indeed looked at every issue that has been raised by 

the appellant. The question is, why should we have to decide each 

issue raised if the appellant has prevailed. 

And specifically, if we rule that the matter should be readjudicated and one of the other issues is a matter of facts that have to 

be later developed again, any decision that we would give on that 

particular issue would be more advisory than any holding because 

the facts will change when it goes back down to be considered by 

the Board or the Regional Office. 

Now, the veteran has every right to present every one of those 

arguments that has been raised to the Court and not addressed to 

the Board or to the Regional Office when he or she returns to 

achieve further adjudication of the case. And if they were correct, 

as we ruled that they were correct in getting a new chance, they 

should prevail. If they do not prevail, then it is some other reason 

perhaps that brings them back to us. 

This is probably more aggravated by the fact that procedurally 

there are issues that are raised to the Court that indicate that if 

they did not receive sufficient notice on how to substantiate their 

claim, that is a procedural error that is prejudicial to the veteran 

because now the veteran really is saying I have not had a fair 

chance to present my case. 

If we agree with that veteran, we say you should go back and 

have your case adjudicated and when you do, bring all the evidence 

to the attention of VA that you think you should have been able 

to present had you been given the right notice. 

Mr. HALL. Judge Greene, my understanding is that as an Article 

1 Court, there is a separation on issue similarly to the Court of Appeals for the Armed Forces; is that correct? 

Chief Judge GREENE. Separation of issues. 

Mr. HALL. Yes, sir. 


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Chief Judge GREENE. I am not familiar with that. 

Mr. HALL. Separation of powers for an Article 1 Court is different 

than that from—— 

Chief Judge GREENE. The concept would have to be the same, 

Chairman Hall, because really you are still dealing with a Court 

that the Congress created to provide this particular judicial review. 

Mr. HALL. Right. 

Chief Judge GREENE. And if there is no specific separation of 

powers statement, there is certainly an analogy. 

Mr. HALL. Right. But it is not a court that comes from the Judiciary Branch, you know, by origin. I am wondering in particular if 

you are familiar with how the CAAF, the Court of Appeals for the 

Armed Forces, handles similar issues or do they? 

Chief Judge GREENE. Well, first of all, cases coming to the Court 

of Appeals for the Armed Forces come by petition. So the accused 

or the person convicted must cite issues that they feel would be 

worthy of consideration by the Court. 

So once the Court reviews those petitions and determines that 

there are worthy issues to be decided, they will take the case and 

hear it. Convicted persons, except for certain sentences, do not 

have an appeal by right like veterans do to our Court. 

Mr. HALL. Thank you, Judge Greene. 

My time has more than expired and I now yield to our Ranking 

Member, Congressman Lamborn. 

Mr. LAMBORN. Thank you, Mr. Chairman. 

Judge, on page 42 of the proposed law, lines 15 to 18, let me read 

a sentence and tell me if this helps at all. In a case in which the 

Court reverses a decision on the merits of a particular claim and 

orders an award of benefits, the Court need not decide any additional assignments of error with respect to that claim. 

Now, does that help some in complying—— 

Chief Judge GREENE. I think the analogy would be the same if 

the Court finds a basis for remand. It need not address the others 

that would also give a remand. 

Mr. LAMBORN. We have been talking in somewhat abstract 

terms. Can you give a real-life example where you think that the 

language would be harmful to the veteran or to the process? 

Chief Judge GREENE. Where it would be harmful? 

Mr. LAMBORN. Well, not so much harmful but a waste of judicial 

resources or somehow work to delay or somehow impede the veteran in his claim. 

Chief Judge GREENE. You know, I think our end result was basically if we find prejudicial error in a veteran’s case, we set the decision aside so that the veteran can have another chance. So that is 

very helpful. The question is, how many chances or how many reasons do we have to give for him to have that chance. 

You asked for an example. The Veterans Claims Assistance Act 

requires that an individual be notified by VA of the information 

and evidence that would be helpful in substantiating his or her 

claim. 

So VA then has to look at the claim and see what kind of claim 

it is and then say, well, these are the things that you need to show 

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ability. You need to show that you had an incident in service and 

you need to have medical evidence that connects the two. 

So, the veteran presents evidence, but for some reason, it is denied. He comes to the Court after the Board has also denied it and 

says, number one, I got bad notice. They did not tell me how to 

really substantiate my claim. And then he also says they did not 

assist me in the development of my claim. And then they say, I did 

not get a chance to give my doctor’s statement to the Regional Office. 

So, number one, we look at the notice problem and in the notice 

problem, we see that the Board reviewed what happened and we 

determine that the Board said there was good notice, but we disagree with the Board and find that indeed there was a defect in 

the notice. 

Then we make a determination whether or not—well, actually, 

the Federal Circuit says once we find bad notice, prejudice is presumed and then the Secretary has to demonstrate no prejudice. 

And if the Secretary does not demonstrate no prejudice, the result 

is to return the case for VA to do it over again and give him the 

correct notice and give him a chance to present all the evidence. 

So we will rule that way. The government has not demonstrated 

no prejudice. And so what is left? He did not get assistance from 

the government. Well, it does not make any sense to go into two 

more pages of decision writing to talk about assistance when, in 

fact, assistance is going to start all over again. 

And then he says, I did not get a chance to give my doctor’s 

statement to the Regional Office. Well, it does not make any sense 

for the Court at that point to go through two or three more pages 

of the requirements for presenting evidence when, in fact, the individual now will have the chance to give that statement to the Regional Office. 

And so simply stated, we were able to decide that case on the 

narrowest ground without having to go into unnecessary opinion 

writing on other issues which would not make any further difference in the case. 

Mr. LAMBORN. Okay. Thank you for that example. 

In a different subject entirely, there is less than a minute left, 

so I will ask for a brief response from you. You state in your testimony that the largest problem in terms of timeliness of cases before the Court is that parties file extensions of time to file briefs. 

How can we in Congress help you with this problem or can we? 

Chief Judge GREENE. Well, I am trying to condense it, so it will 

be brief. But I think the main situation here is that as an Appellate Court, each party has a right to present briefs to the Court in 

order for us to render the decision. 

A lot of these extensions of times are coming from the government because of the magnitude of the size of the caseload. Consequently, we either deny the request for extensions and then 

throw the government out of Court or deny the request for extension and throw the appellant out of Court. And that, we do not 

want to do because that does not pursue the justice that we believe 

the veteran deserves. 

We are taking steps within the Court to reduce the time, but the 

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tem to an adversarial system and there is really no record of trial, 

we have to get a record of trial that then forms the basis of the 

appellate briefs. And, consequently, that consumes 254 days right 

there. And then when you add on the extensions to that, you do 

have extensive time involved. 

Mr. LAMBORN. Okay. Thank you. 

Mr. Chairman, I yield back. 

Mr. HALL. The Chair recognizes Mr. Hare. 

Mr. HARE. Thank you, Mr. Chairman. 

Judge, I just have a couple questions. They do not necessarily 

really, relate to your testimony, but I am just kind of interested 

and maybe you could share with me, or maybe if you do not know 

or could you find out. 

What is roughly the amount of decisions that the CAVC overturns that are appealed to you? 

Chief Judge GREENE. The number of decisions that are appealed 

to us. 

Mr. HARE. Yes. 

Chief Judge GREENE. This past fiscal year, I think it was around 

4,600. 

Mr. HARE. What is the main reason for the Court to overturn 

those decisions? Is it incorrect ratings or misinterpretation of veterans’ law? 

Chief Judge GREENE. I am sorry. Maybe I misunderstood your 

question. You asked what were the number of cases appealed to 

us? 

Mr. HARE. Correct. 

Chief Judge GREENE. Or how many reversals did we decide? 

Mr. HARE. Correct. 

Chief Judge GREENE. I do not have that number exactly. But 

there are very few reversals simply because we do not engage in 

fact finding. 

And in order for us to reverse, we generally will either have to 

find that, as a matter of law, the Board was so incorrect in the application of that law that had they applied the correct law, another 

outcome would have resulted in which case, given the same set of 

facts, there would be a reversal and perhaps an award to the veteran. 

Otherwise, we would have to determine if the Board’s fact finding was clearly erroneous. And in that case, we might reverse the 

specific finding, but then you would have to examine the rest of the 

record to make a determination if whether on the face of that 

record there remains sufficient evidence that would otherwise warrant awarding a benefit to the veteran. If it does not, it is a matter 

of returning it to the fact finder for them to engage in the proper 

fact finding to reach a conclusion. 

Mr. HARE. Okay. Well, and I know I probably even confused even 

myself with this question, too, so do not feel bad. 

Do you know what the main reasons for the Court to overturn 

decisions are? You know, in other words, is it incorrect ratings? Is 

it misinterpretation of veterans’ law, under-development of the 

claim? What do you see as the main culprit here? 

Chief Judge GREENE. Well, recently, there have been a lot of errors in the notice arena as in the example that I gave you. And the 


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law continues to develop in that area because of our decisions as 

well as the decisions of the Federal Circuit. But we get all types 

of benefits decisions before us, so it is kind of hard for me right 

now to say exactly. I will take a look at that and get some information to you. 

Mr. HARE. I would appreciate that. 

Chief Judge GREENE. All right. 

Mr. HARE. Thank you very much. 

Thank you, Mr. Chairman. 

Mr. HALL. Thank you, Mr. Hare. 

Judge Greene, if I may, could I ask you, understanding your concerns about issues pertaining to the precedential value of the 

Court’s decisions, do you think that each of the issues raised should 

be fully considered and ruled on and then, if necessary, indicate 

that the decision is made without prejudice to the appellant even 

if a full opinion might not be warranted or necessary? Might the 

Court, for instance, be able to issue a preliminary opinion that does 

not have a precedential effect? 

And the reason I ask this is once again because we are trying 

to give the veteran, or the veteran’s representative, the opportunity 

to understand upon remand what all of the issues that they are 

going to have to deal with are. And what we are hearing back from 

them is that because of the policy of not doing that extra work on 

the other—once you have come across a procedural issue that requires a remand, then it is sent down without the others being 

commented on. 

So the question is, could the Court issue a preliminary opinion 

on those other issues that is not precedential in effect? 

Chief Judge GREENE. We treasure the concept of preserving judicial resources, but I want to certainly correct any misperception 

that we are doing it just to avoid the work. 

Mr. HALL. I never thought so, sir. 

Chief Judge GREENE. I know. And, consequently, I think it is 

very important to understand, too, that we do not have a policy. 

That is not a policy. The policy is to decide the case fairly and wisely. 

And, consequently, I can assure that all of my colleagues and I 

look at each case and we do, in fact, consider every issue raised by 

the appellant. And then after we have considered those issues and 

deliberated over the government’s side and the appellant’s side, we 

make a determination as to how the case should be disposed of. 

And if a decision is made to remand the case, then all of that falls 

into that reasoning. 

To give a preliminary finding is to give what we would call in 

the appellate practice an advisory opinion because it would not 

have any binding effect upon anybody. Of course, the Board, if we 

told the Board, well, hey, by the way, you should, in fact, be sure 

that the veteran gets a chance to give his evidence to the Regional 

Office, we can do that anyway without necessarily rendering a full 

dissertation on that. And in most cases, we will. 

Please understand that we look at these issues and where there 

is, we believe, a need to send a signal or send a message to the 

Board, we will do that and we do do that. 


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Mr. HALL. Judge, would administrative law judges work better in 

this role? 

Chief Judge GREENE. Administrative law judges would work 

great at the VA level and the Board. 

Mr. HALL. And I just want to ask you one more question. It has 

to do with our proposal regarding the Veterans Claims Assistance 

Act (VCAA) letters. 

There are some who believe that the problems with the VCAA 

letters stem from numerous court decisions rendered since its inception that add requirements beyond congressional intent and 

which have resulted in a duty to notify letter that is nearly incomprehensible to veterans. 

If VA provided a clear check list to veterans outlining what is 

needed as evidence to develop, do you think the Court would still 

be required to render decisions that require more information to be 

added to the letter to clarify VA’s responsibilities, if you can provide such an opinion? 

And the reason I ask is because the VA contends that the Court’s 

requirements imposed in cases such as Vasquez Flores are overstepping the original Congressional intent and treading into Article 

I jurisdiction. 

I know this may be a stretch for you, but would you please give 

your general impressions as to whether VA is satisfactorily meeting 

its duty to notify since the passage of VCAA and if you can, can 

you conceive of any or comment on what proper VCAA notice might 

contain? 

Chief Judge GREENE. At the outset, just let me say that for 8 

years, there has been litigation over the ‘‘Veterans Claims Assistance Act.’’ I mean, Congress decided to pass that after there were 

some rulings about the well-grounded claim concept, but that is another story. 

In 2000, I thought the message was clear that all the VA had to 

do was do a check list and run down and make sure the veteran 

understood what it was that they had to present. And that is the 

message that the Court has been trying to convey over the last 7 

years and the Federal Circuit. 

Now, Vasquez Flores is a pending case that I would refrain from 

commenting on, although I am very curious that you have that 

given that there is currently pending some litigation on that. 

Mr. HALL. Thank you, Judge Greene. 

Mr. Lamborn, you have more—Mr. Bilirakis. 

Mr. BILIRAKIS. I have no questions at this time. 

Mr. HALL. Okay. Since everybody else has no questions, let me 

just ask you one more. I promise this is the last one. 

Could you describe the Court’s interpretation of the Best and 

Mahl cases and how it believes these cases control its ability to decide all assignments of error based on appeal or raised on appeal? 

Chief Judge GREENE. The Best case—— 

Mr. HALL. The Best case and the Mahl case. 

Chief Judge GREENE [continuing]. The Best case was written 

simply to highlight and convey the Appellate Court practice of deciding issues presented to the Court on the narrowest ground and 

that you would look at the case and make a determination as to 

how best can justice be done in this case. 


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Mahl extended that to the extent that it also recognized that the 

Court could entertain multiple issues if they found it necessary. 

And those guiding principles are what the Court employs when we 

look at each and every case. The judge makes a decision after looking at all the issues presented as to what he or she thinks needs 

to be decided to get the case back in the hands of the people who 

should have it. 

Mr. HALL. So given the confines of Best and Mahl, could you conceive of the Court exercising its discretion more broadly to reach 

to the assignments of error raised on appeal? 

Chief Judge GREENE. You have to understand, you look at the 

Mahl case and you can look at the Wells case and you can see dissents on those cases that talk about, hey, we should consider everything or what have you. 

But if a particular judge may want to address a particular issue, 

then the question is, does the majority agree that that issue should 

be addressed in that particular case. 

But clearly each case will have to stand on its own merits and 

I do not see how you can have a blanket rule. In my prepared 

statement, I indicated that there is a strict rule about not taking 

on Constitutional issues. 

If an appellant or veteran raises a Constitutional issue, this statute would require us to address it even though we would not necessarily be required to, or if he submits 300 issues, would we then 

have to submit discussion on all 300 issues? 

Mr. HALL. Mr. Lamborn. 

Mr. LAMBORN. Thank you, Mr. Chairman. I did have a brief followup question on the matter you just raised, the Constitutional 

question. 

The precept against deciding Constitutional questions that are 

not necessary for the adjudication of the case, how often does that 

come up? 

Chief Judge GREENE. Very infrequently. 

Mr. LAMBORN. Okay. But on the occasions where it does, 

then—— 

Chief Judge GREENE. In a pro se case, we might bend over to 

make a consideration of that. 

Mr. LAMBORN. Okay. All right. Thank you. 

Chief Judge GREENE. By the way, sir, congratulations on Kansas. 

Mr. HALL. Judge Greene, thank you so much for your testimony 

and your presence here today and your work that you do. And 

Judge Lance and Judge Schoelen is it? 

Chief Judge GREENE. Schoelen. 

Mr. HALL. My eyes are not all the way there. 

Thank you very much. If we have any further questions, we will 

submit them in writing. 

Chief Judge GREENE. Yes, sir. And may I also offer, if there is 

any further information that you do need, Judge Schoelen and 

Judge Lance would be more than happy to meet with each Member 

or Members of your staff individually. 

Mr. HALL. Thank you very much. The panel is excused. 

I call our second panel to the table now, Kerry Baker, Associate 

National Legislative Director of Disabled American Veterans 

(DAV); Ronald B. Abrams, the Joint Executive Director of the NaVerDate Aug 31 2005 05:26 Dec 23, 2008 Jkt 043047 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 E:\HR\OC\43047.XXX 43047

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tional Veterans Legal Services Program (NVLSP); Steve Smithson, 

Deputy Director of Veterans Affairs and Rehabilitation Commission 

at the American Legion; Eric Hilleman, Deputy Director, National 

Legislative Service, Veterans of Foreign Wars (VFW) of the United 

States; and Carl Blake, the National Legislative Director of Paralyzed Veterans of America (PVA). 

Gentlemen, thank you again for joining us and for your patience. 

And your statements have been entered into the record as written, 

so we are recognizing each for five minutes beginning with Mr. 

Baker. 

STATEMENTS OF KERRY BAKER, ASSOCIATE NATIONAL LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS; RONALD B. ABRAMS, JOINT EXECUTIVE DIRECTOR, NATIONAL 

VETERANS LEGAL SERVICES PROGRAM; STEVE SMITHSON, 

DEPUTY DIRECTOR, VETERANS AFFAIRS AND REHABILITATION COMMISSION, AMERICAN LEGION; ERIC A. HILLEMAN, 

DEPUTY DIRECTOR, NATIONAL LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED STATES; AND 

CARL BLAKE, NATIONAL LEGISLATIVE DIRECTOR, PARALYZED VETERANS OF AMERICA 

STATEMENT OF KERRY BAKER 

Mr. BAKER. Thank you, Mr. Chairman, and Members of the Committee. 

On behalf of the DAV, I am pleased to offer my testimony to address the ‘‘Veterans Disability Benefits Claims Modernization Act.’’ 

Section 101 of the Act provides a presumption of service connection for post traumatic stress disorder for veterans diagnosed with 

such and who engaged in combat with the enemy. My statement 

on this issue is, therefore, limited to combat-related PTSD. 

While the DAV supports this provision, we feel the current high 

standards required by VA’s internal operating procedures for 

verifying veterans who engaged in combat with the enemy are impossible for many to satisfy. This is usually due to unrecorded traumatic events taking place on the battlefield, unrecorded temporary 

detachments of servicemembers from one unit to another while in 

the theater of operations, or simply poor recordkeeping. 

Our concern is that with defining who is considered to have engaged in combat with the enemy, this provision will be rendered 

moot by VA’s internal requirements. 

The provisions of the applicable statute, section 1154, and the 

applicable regulation, section 3.304(f), are uniform in relation to 

those who engaged in combat with the enemy. 

Together they require VA to accept a sufficient proof of service 

connection for any disease or injury resulting from such service absent clear and convincing evidence to the contrary, credible, satisfactory, lay, or other evidence of service incurrence of the disease 

or injury if consistent with the circumstances, conditions or hardship to the veteran’s service and notwithstanding the fact there is 

no official record of such incurrence in the service. 

The regulation further reiterates that when these perimeters are 

met, the veteran’s lay testimony alone may establish the incurrence 

of the claimed in-service stressor. 


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Neither the statute nor the regulation requires validation by official military records of an in-service combat stressor. Nonetheless, 

VA’s adjudication procedure manual requires proof that a veteran 

engaged in combat through official military records, thus contradicting the intent of the statute and ignoring its own regulation. 

These internal instructions defy incredible supporting evidence 

that an in-service stressor occurred as evidence that specifically 

documents personal participation in the event that indicates the 

veteran served in the immediate area and at the particular time 

in which the event is alleged to have occurred. 

Having said that, we do, however, acknowledge that VA most 

likely promulgated these internal instructions based on its interpretation that the statute and regulation failed to define who is 

considered to have engaged in combat. 

We nonetheless respectfully disagree with that interpretation as 

well as the extra statutory and regulatory path in which VA chose 

to create a substantive rule of law. 

The DAV believes your bill would better deliver its intended effect if it amends 1154(b) to clarify when a veteran is considered to 

have engaged in combat or defines those who have engaged in combat under the definitions of section 1101, either of which I will 

readily admit is not an easy task. 

Section 107 of the Act expands authorization for developing, submitting, and certifying a claim is fully developed by veterans’ representatives. There are many obstacles in the path of this novel 

idea. Because of those obstacles, the DAV would like further discussions and a better understanding of the nature of this provision 

before we can determine the level of our support or opposition. 

Section 108 requires a study that considers employing medical 

professionals to assist VBA. Based on our comprehensive experience in the claims process, one that dates back to a time when VA 

employed medical professionals in the claims process, we must oppose this section of the bill. 

The biggest challenge facing VA decisionmakers results from inadequate legal training, not inadequate medical training. Misunderstandings of the law can offer far more errors than do misunderstandings of medicine. 

Section 301 increases the reporting requirements of the Court 

and section 302 modifies the jurisdiction of the Court. Each of the 

foregoing provisions is nearly mirrored in the Independent Budget 

(IB) for fiscal year 2009. We strongly support each and commend 

Chairman Hall for the recommendation. 

At present, I have only commented on a few of the sections of the 

bill, but have done so in the remainder of my written testimony. 

I will be happy to answer questions on these sections or any other 

section should you have any. 

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

Mr. HALL. Thank you, Mr. Baker. 

Mr. Abrams, you are now recognized. 

STATEMENT OF RONALD B. ABRAMS 

Mr. ABRAMS. Good afternoon, Mr. Chairman and Members. I am 

pleased to have the opportunity to talk to you today on behalf of 

the National Veterans Legal Services Program. 


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I want to thank you for your hard work and I especially want 

to thank the staff on both sides for their contribution to this bill. 

It has been long overdue. 

We would first like to talk about section 101. And we feel though 

well intentioned as written, section 101 would have very limited 

positive impact. We know that in Iraq and Afghanistan, there is 

really no specific front or rear area. No servicemember is really 

safe in either place and just about everyone there is subject to 

enemy attacks. 

Therefore, we suggest that 101 be redrafted to establish a presumption of service connection for PTSD if the veteran served on 

active duty in Iraq or Afghanistan and currently suffers from 

PTSD. And we would also like to extend this to veterans who did 

not serve in Operation Iraqi Freedom (OIF) or Operation Enduring 

Freedom (OEF) but did serve in a combat zone during active duty. 

We think that the presumption should apply unless there is clear 

and convincing evidence that the veteran’s PTSD is caused by a 

stressful event that did not occur during a period of military service, and I would like to add this to my written testimony, in OIF 

or OEF or in a combat zone. That should satisfy everybody. A doctor is going to have to link the current PTSD to an event that happened during service in a combat zone or in Iraq and Afghanistan. 

We would also like to stress that the VA spends a lot of money 

and time and makes veterans wait a very long time until they determine whether or not evidence of a stressor can be confirmed to 

make it credible. If this law, the way we propose it is changed, the 

VA will save an awful lot of time and veterans will get their answers in a much quicker fashion. It would help on the backlog and 

in other areas. 

I would like to stress that we support the study of the work credit system. NVLSP believes that this study is long overdue. However, having the VA study its work credit system is like asking the 

fox how to determine whether henhouse precautions are effective. 

We would hope that you would get an independent group like GAO 

to do this. 

We want to stress that the things that cause remands from the 

Court, that cause the hamster wheel effect, are things like control 

of claims, supervisory review of delayed claims, thorough development of the evidence needed to decide a claim properly, recognition 

of all issues, provision of adequate notice, documentation that that 

notice was given, and careful quality review. 

All of these things take time. And because they affect the productivity and effectiveness and timeliness of a Regional Office, there 

are times when VA managers take shortcuts and that results in 

improper denials which go to the Court, which go back to the 

Board, which go back to the Appeals Management Center, and 

drive veterans crazy. 

Thank you very much. 

[The prepared statement of Mr. Abrams appears on p. 52.] 

Mr. HALL. Thank you. 

Mr. Smithson, you are recognized. 


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STATEMENT OF STEVE SMITHSON 

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

Subcommittee. Thank you for this opportunity to present the American Legion’s views on this important draft bill being considered by 

the Subcommittee today. 

As detailed in my written statement, the American Legion generally supports the major provisions of this legislation. My remarks 

this afternoon, however, will focus on Title 1, section 101 in order 

to clarify and otherwise expand on portions of my written statement regarding the section. 

There are three requirements that must be met in order to establish entitlement to service connection for post traumatic stress disorder, a current diagnosis of PTSD, credible supporting evidence 

that the claimed in-service stressor actually occurred, and medical 

evidence of a causal nexus between the current PTSD symptomatology and the claimed in-service stressor. 

According to 38 CFR section 3.304(f)(1), if the evidence establishes that the veteran engaged in combat with the enemy and the 

claimed stressor is related to that combat, in the absence of clear, 

convincing evidence to the contrary, and provided that the claimed 

stressor is consistent with the circumstances, conditions, or hardships of that veteran’s service, the veteran’s lay testimony alone 

may establish the occurrence of the claimed in-service stressor. 

Proposed section 101 of this draft legislation, as currently written, would essentially establish presumption of service connection 

for veterans who have been diagnosed with PTSD if they can prove 

they engaged in combat with the enemy. 

Because of the presumptions already afforded in 38 U.S.C. 

§ 1154(b) and 38 CFR 3.304(f)(1), veterans who can establish that 

they engaged in combat with the enemy have a much easier time 

of establishing entitlement to service connection for PTSD than veterans who cannot prove they engaged in combat with the enemy. 

This being the case, we do not think that section 101 as currently 

written would have the positive impact that was obviously intended. Unless the veteran was wounded or received a specific combat decoration or badge such as the Combat Infantryman Badge 

(CIB) or Combat Action Ribbon or an Award for Valor, it is often 

very difficult to establish that the veteran engaged in combat with 

the enemy in order to verify the claimed combat-related stressor. 

Even the term engaged in combat with the enemy has taken on 

a different meaning as the nature of warfare in today’s world has 

changed. This is especially true of service in combat theaters of 

Iraq and Afghanistan. 

Due to the fluidity of the battlefield and the nature of the enemy’s tactics, there is no defined frontline or rear safe area. 

Servicemembers in noncombat operations or occupations and support roles are subjected to enemy attacks such as mortar fire, sniper fire, and improvised explosive devices just as their counterparts 

in combat arms-related occupational fields. 

Unfortunately, such incidents are rarely documented making 

them extremely difficult to verify. Servicemembers who received a 

combat-related badge or Award for Valor automatically trigger the 

combat-related presumptions of section 1154(b) and 38 CFR 

3.304(f)(1). 


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But a clerk riding in a Humvee who witnessed the carnage of an 

improvised explosive device (IED) attack on his convoy does not 

automatically trigger such a presumption and proving that the incident happened or that he or she was involved in the incident in 

order to verify a stressor in relation to a PTSD claim can be extremely time-consuming and difficult. 

Moreover, such claims are often denied due to the veteran’s inability to verify the alleged combat-related incident, the stressor to 

the satisfaction of the Department of Veterans Affairs. 

For the reasons and examples just discussed, the American Legion supports the establishment of a presumption of stressor for 

the purpose of establishing entitlement to service connection for 

PTSD for any veteran who served in Operations Iraqi Freedom and 

Enduring Freedom as long as the alleged stressor is related to 

enemy action and is consistent with the circumstances, conditions, 

or hardships of such service. 

Additionally, as a point of clarification, the American Legion does 

not oppose extending this presumption to veterans who served in 

other combat theaters. We, therefore, request that section 101 be 

revised to establish a presumption of exposure to stress as just discussed for veterans who served in Iraq and Afghanistan, as well as 

other combat theaters. 

Such a presumption will not automatically presume service connection for PTSD, but will concede that the alleged stressor actually occurred as long as the stressor is related to enemy action or 

the result of enemy activities and is consistent with the circumstances and conditions of such service. 

The veteran would still need a current diagnosis of PTSD and 

medical evidence of a causal nexus between the PTSD and the 

claimed enemy action-related stressor. 

As verifying the alleged stressor is often the most time and laborintensive requirement to satisfy in a PTSD claim, such a presumption would not only benefit the veteran but would also benefit VA 

by negating extensive development and in some cases over-development of the stressor portion of a PTSD claim and in doing so reduce the length of time it takes to adjudicate such claims. 

Simply put, as PTSD is already a condition for which service connection can be established, this proposal would not be creating a 

new benefit, but would merely be streamlining the stressor 

verification requirement for veterans who served in Iraq and Afghanistan and other combat zones and in the long run would save 

VA time and resources by reducing the amount of work it would 

have to do in developing for verification of the stressor. 

That concludes my statement, Mr. Chairman, and I would be 

happy to answer any questions you or Members of the Subcommittee may have. 

[The prepared statement of Mr. Smithson appears on p. 56.] 

Mr. HALL. Thank you, Mr. Smithson. 

Mr. Hilleman. 

STATEMENT OF ERIC A. HILLEMAN 

Mr. HILLEMAN. Mr. Chairman, Ranking Member Lamborn, and 

Members of the Subcommittee, on behalf of the 2.3 million men 

and women of the Veterans of Foreign Wars and our auxiliaries, 


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I thank you for the opportunity to present our views today on this 

important legislation titled ‘‘Veterans Disability Benefits Claims 

Modernization Act of 2008.’’ 

We also want to thank you and your staff for their dedication to 

America’s veterans and we want to commend this Committee for its 

willingness to work with the VFW and other VSOs to craft this legislation. 

The modernization and improvement of the Department of Veterans Affairs claims processing system is a project that has long 

been in the making. This bill has taken shape in response to growing wait times, increasing complexity of claims, and growing numbers of veterans seeking benefits. 

The legislation we discuss today represents an incorporation of 

many recommendations of recent commissions and it is the most 

substantive step we have seen to date on the road to reforming and 

improving the VA benefits delivery system. 

We sincerely hope that the energy expended today and in the 

crafting of this legislation continues to facilitate the necessary follow through that will ensure implementation of the recommendations contained herein. 

We recognize that this legislation is evolving. Given the length 

of the bill, we will focus our comments on a few specific provisions. 

Section 101 seeks to establish presumptive service connection for 

PTSD for veterans that ‘‘engaged in combat with the enemy in active service with military, naval, or air organization of the United 

States during a period of war, campaign, or expedition, and who is 

diagnosed with post traumatic stress disorder.’’ 

While well-intended, it is our view that the definition misses the 

mark. The VA has no problem granting service connection for 

PTSD even many years after service. What it does have a problem 

with is granting service connection for PTSD when a combat medal 

is absent. The goal of this provision is to lessen the burden of establishing the existence of a stressor event. 

We recommend tightening the definition as stated in our written 

testimony to ensure that veterans of the U.S. Armed Services receive the care they deserve. 

Section 102 would establish an Advisory Committee to study the 

disability rating schedule. We urge you to ensure this Committee 

is independent, beyond reproach, and represents the best interests 

of veterans. 

The VFW supports a measured review of the rating schedule as 

stated by my colleague, Gerald Manar, before this Committee on 

February 26th of this year. We firmly believe that a one-time adjustment of the current schedule will not be sufficient to keep pace 

with the changing nature of quality of life and the evolving science 

of medicine, technology, and warfare. 

Section 107 would establish a mechanism to expedite and encourage fully developed claims. We strongly support this provision. To 

guarantee that the practice actually works, VA should require that 

Regional Office personnel, managers, and veteran service officers 

are adequately trained to recognize a ready-to-rate claim and understand that the receipt of such a claim triggers actions, which facilitate prompt adjudication. 


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Section 110 calls for VA to review its process and develop a comprehensive plan to incorporate information technology into the 

claims adjudication process. VA is asked to examine how it might 

transfer all prescribed benefits processing tasks and information 

into computer software programs that eliminate the need for paper 

claims and provide remote access to veterans seeking information 

on their claim. 

We encourage VA to utilize properly programmed computers and 

apply regulations to discreet data arriving at a concrete evaluation 

for the veteran. Well-employed software programs will free up adjudication experts to work on claims requiring more thought and 

decisions. 

We ask this Committee for the opportunity to submit our views 

for the record and work closer with the staff to improve veterans 

benefits claims processing. 

We welcome any questions this Committee may have and we 

thank you. 

[The prepared statement of Mr. Hilleman appears on p. 60.] 

Mr. HALL. Thank you very much, Mr. Hilleman. 

Mr. Blake, you are now recognized. 

STATEMENT OF CARL BLAKE 

Mr. BLAKE. Mr. Chairman, Members of the Subcommittee, on behalf of Paralyzed Veterans of America, I would like to thank you 

for the opportunity to testify today on the ‘‘Veterans Disability Benefits Claims Modernization Act of 2008.’’ 

Due to the scope of this proposed legislation, I will limit my comments to only a few of the provisions in the bill. 

With respect to the provisions of section 101, PVA generally supports the intent of the proposal to establish a presumption for service connection for veterans who have deployed to a combat theater 

and who present symptoms of PTSD. However, we do believe that 

there are flaws in the legislation as drafted. 

First, the legislation establishes a standard that we believe is 

very difficult to prove in order to qualify for presumption. Specifically, the legislation states that the veteran must have engaged in 

combat with the enemy. 

This places the burden on the veteran to identify a specific event 

and submit evidence demonstrating that he or she was, in fact, 

under fire from the enemy. We do not believe that this is the actual 

intent of the legislation as it would make it even harder to receive 

a presumptive rating for PTSD than what currently exists in statute. 

Second, this section allows for a significant increase in the claims 

backlog. As written, the legislation would allow a veteran who 

meets the defined criteria to file a claim for presumptive service 

connection, including veterans of all war periods. If this is, in fact, 

the intent of the Subcommittee, we believe this needs to be clarified. 

We have no objection to section 107 of the proposed legislation 

that is meant to expedite consideration of a fully-developed claim. 

We appreciate the recognition given to the work of service officers of the Veterans Service Organizations under the newly-created 

section 5109(c). However, we do have some concern about the reVerDate Aug 31 2005 05:26 Dec 23, 2008 Jkt 043047 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 E:\HR\OC\43047.XXX 43047

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quirement for a check list to be provided to individuals submitting 

claims. 

It seems that in order for the VA to provide a check list of missing items in an incomplete claim, it will have to already adjudicate 

the claim. We do not believe that this is the intent of the Subcommittee as well and we believe that the provision warrants further consideration and clarification. 

Recent hearings have demonstrated how far behind the VBA is 

in using information technology in its claims adjudication process. 

While we believe that the entire claims process cannot be automated, there are many aspects and steps that certainly can. 

We have long complained to the VA that it makes no sense for 

severely-disabled veterans to separately apply for the many ancillary benefits to which they are entitled. Their service-connected 

rating may immediately establish eligibility for such benefits as the 

Specially Adaptive Housing Grant, adaptive automobile equipment, 

and education benefits. However, they still must file separate application forms simply to receive these benefits. That makes no 

sense whatsoever. 

Furthermore, certain specific disabilities require an automatic 

rating under the disability rating schedule. It does not take a great 

deal of time and effort to adjudicate a below-knee, single-leg amputation. An advanced information technology system can determine 

a benefit award for just such an injury quickly. With these 

thoughts in mind, PVA fully supports the provisions of section 110. 

With respect to the transition of servicemembers from active 

duty to veteran status outlined in Title 2 of the legislation, we certainly support the intent. 

As mentioned in the legislation, the VA and DoD are currently 

conducting a pilot program that addresses this issue and we look 

forward to their findings during the conduct of this program. 

We do believe that the language should stipulate that the VA be 

responsible for actually performing the separation physical. The VA 

has greater experience at providing a comprehensive medical examination as it requires the most thorough medical review of a veteran to determine a degree of disability. 

We are pleased with the fact that the legislation calls for the 

DoD to only determine fitness for duty as part of the process and 

the VA to actually determine the degree of disability. 

Finally, Mr. Chairman, I would like to thank you and Mr. 

Lamborn and your staffs for allowing us the opportunity to meet 

in advance of this hearing to discuss the original draft of the legislation and to outline many of our differences and to consider what 

we had to say as they continue to refine this bill. And we look forward to further discussion with the Subcommittee staff. 

With that, Mr. Chairman, I would be happy to answer any questions that you might have. 

[The prepared statement of Mr. Blake appears on p. 64.] 

Mr. HALL. Thank you, Mr. Blake. 

Thank you to all of our witnesses. And I, too, would like to thank 

all of you and your organizations for the input that you have had 

and the staff on both sides for the long hours that you have put 

into this. I know it has been a cooperative effort and that is something that we should all be proud of. 


smartinez on PROD1PC64 with HEARING
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I think that there are a number of cases, as you have pointed 

out. Each of you, I think, spoke more about the things, the sections 

of the proposed legislation that you have problems with because 

under the 5-minute rule, if you talk about the things you like, you 

tend to run out of time too soon. So I understand that and obviously that is where we need to spend our time is working out the 

kinks. 

Mr. Baker, first of all, thank you for your accurate description of 

the problems many combat theater veterans face in trying to document stressors and the stringency with which VA has chosen to implement 38 U.S.C. § 1154. 

Our intention with section 101 is to provide veterans diagnosed 

with PTSD a means by which their claims can be granted when 

specific documentation of a stressor does not exist, is classified, or 

has been lost. 

And I am sorry to say that I agree with you now having heard 

your testimony or read your testimony that our language does, in 

my opinion, need to be changed because of the fact that combat 

with the enemy leaves out people who legitimately can claim service-related stress causing PTSD, many examples of which you have 

given. 

Based on your experiences, is there a better way to define this 

or to hold VA more accountable? 

Mr. BAKER. Well, that is a very difficult question, I think. And 

part of the reason for my testimony, both my oral and my written, 

I mean, I believe that, you know, we have to apply the law in a 

strict manner or else these proceedings become somewhat meaningless. 

Having said that, I do not think the VA set out to violate the 

law. I think they honestly looked at the statute and regulation and 

interpreted it as not providing definition of who is engaged in combat, therefore, took it upon themselves to do that. 

My disagreement with that would be it should be in the regulations so that proper challenges could be made if somebody disagrees with it. 

Nonetheless, I understand and they have a very valid argument 

that they could say that it does not define it and, therefore, we did. 

So, you know, I respect that position. 

As far as how to define it, you know, on one side of the coin, you 

expand it out to everybody that served in a combat zone and which 

includes areas outlying in this case, it would be Iraq or outlying 

Afghanistan and that may be a little bit too liberal. On the other 

side of the coin, you have the current requirements to show official 

military records that you actually were in a fire fight. That may 

be too conservative. 

And I understand the need to balance the interest of the veteran 

as well as the interest of the government. So I think you are coming down to a conclusion that you have to answer both questions, 

do you want to create a system that can be a little easier gamed 

some would say by a few people, some would say by a lot of people, 

but where that no deserving veteran goes without the benefit that 

they are entitled to or a system where very few people can game 

it. And I think very few can game it now. 


smartinez on PROD1PC64 with HEARING
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The flip side to that is you get deserving veterans that do without a doubt go without it. And I think more go without it than are 

able to game the system the way it is now. So where is the happy 

median? 

Mr. HALL. Well, thank you, sir. 

Mr. Smithson suggested or supported having a stressor for deployment or service in OIF/OEF and service in other combat zones 

if I have my notes correctly. And Mr. Abrams’ similarly recommended OIF/OEF and other combat zone active duty unless 

clear evidence exists that the stressor comes from an event that 

happened when not in combat. 

Mr. BAKER. Yeah. As far as the combat-related PTSD, I mean, 

I would agree that one possible definition would be something similar to, you know, a veteran has presumed to have engaged in combat when they have served in a combat theater of operations, in 

other words, within the borders of the country where the combat 

is. 

When they have submitted, absent clear and convincing evidence 

to the contrary, credible, satisfactory, lay, or other evidence, you 

know, something to that effect, I think that is one possibility. I 

think you are still going to have some say that is too conservative, 

some say it is too liberal. 

Mr. HALL. Not me. 

Mr. BAKER. Okay. And I feel for Congress at this point because 

that is a difficult question to answer. But I would agree that is 

definitely one possible solution. Did I answer that at all? 

Mr. HALL. Yes. I just want to move along and ask Mr. Abrams, 

regarding sections 103, 105, and 106, could you elaborate on what 

elements NVLSP considers to be crucial in a quality assurance program? How should an independent assessment of quality be performed by an outside contractor and do you have examples of such 

service? 

Mr. ABRAMS. For a while, many years ago, I worked in VA quality review. The problem became quite apparent to us when we were 

VA employees that when the Regional Offices checked their own 

quality, if they found it bad, then the managers would not get promoted or bonuses. So very few people had bad quality reported. 

Even when we found errors, people would call VA’s Central Office 

and say we would like them to change their error calls. That might 

be happening today. You would have to ask someone from the Compensation and Pension Service. 

I would think that people who work for the Secretary, people who 

are not under the direct supervision of Veterans Benefits Administration would have a better chance of doing an accurate quality 

check than people who work within the Compensation and Pension 

Service or work for Veterans Benefits Administration. 

There is a wealth of knowledge out there today that was not in 

existence in the 1980s. More people work in veterans’ law and you 

should be able to hire people who can look at a claim from the 

point of the VA claimant, check what the VA should have done, 

and make honorable errors calls that would help improve the VA 

system. 

Now, that would cover what was that, section 104 or I do not 

know if I answered all of your questions with that answer. 


smartinez on PROD1PC64 with HEARING
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Mr. HALL. Sections 103, 105, and 106, but you did. You did just 

fine. Thank you. 

Mr. Smithson, the American Legion seems to have a lot of experience on the PTSD problem that exists in the field and I must say 

that is the issue most vets in my district come to me for in terms 

of casework that we see. 

Not only do we hear about it, but we see it in the district, people 

who have gone through the process with the VA and gone the normal route of going to the RO and applying, submitting a claim, and 

having it denied and then some years later, be it 50 years later for 

a World War II vet recently to 2 years later for an OIF vet who 

recently came to our office, that they come to us and we get the 

claim reversed. 

And it has happened so much. I know that we are seeing the 

cases where people are unhappy. That is what happens with us as 

Members of Congress, you know, we get the casework where people 

are not satisfied and they come to us. But, nonetheless, it seems 

to be the predominant theme. 

So I was curious to follow up on your testimony, when you said 

that VA has a tendency to over-develop cases. Do you think the VA 

wastefully expends resources on extensive development and do you 

have a broader definition to offer us for that language where the 

legislation as drafted says engaged in combat with the enemy, and 

all or most of you at any rate commented on that being too narrow? 

How would you suggest we word that? 

Mr. SMITHSON. Because of the changing battlefield and basically 

what we have in modern warfare today as good examples by what 

is taking place in Iraq or Afghanistan, the term engaging in combat 

with the enemy takes on a whole new meaning. 

The example I gave in my testimony was a clerk riding in a 

Humvee whose convoy is attacked and he witnesses the carnage of 

an IED attack. That person would not necessarily be engaging in 

combat with the enemy if he did not take fire or direct fire to the 

enemy. However, he obviously experienced a stressor, a stressful 

event. 

So I think changing the definition from engaged in combat to the 

enemy to looking at combat-related stressors, stressors that are the 

result of enemy action or enemy activity because I think that is 

what we are seeing a lot of in Iraq or Afghanistan. 

And being able to presume exposure to a stressor for individuals 

in those type of combat theaters without having to necessarily submit the documentation which in a lot of cases does not exist and 

these individuals might not necessarily have combat awards but by 

being able to presume that the stressor happened because it is consistent with the hardships and the circumstances of that service, 

it would make things a lot easier not only for the veteran to get 

their benefits, for the VA, they would not have to do a lot of development. They would be able to concede that part of it and move 

on, and it would help eliminate a lot of the backlog. 

Mr. HALL. Thank you, Mr. Smithson. 

I am going to turn now to our Ranking Member, Congressman 

Lamborn. 

Mr. LAMBORN. Thank you, Mr. Chairman. 


smartinez on PROD1PC64 with HEARING
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And this question is for any one of the five of you. Section 101 

as it is currently written, do you believe that it could either expand 

the backlog or lead to possible additional fraud? And this is any 

one or all five of you. 

Mr. BLAKE. Mr. Lamborn, I will take that question. I think my 

statement, I hate to use the word fraud because I know last year 

in some of the discussions with legislation, it got a real rise out of 

the Committee, to imply that any veteran would perpetuate fraud 

against the VA. 

But I do not think you can discount the possibility. Maybe it is 

not even a matter of fraud. I think the question is, you know, an 

example that when we talked to the Committee staff about this is 

someone who perhaps served in Iraq or Afghanistan and comes 

home and is involved in something at home, whether it be a car 

accident or whatever, that is obviously a stressful event, a traumatic event that could just as likely lead to PTSD. But in all likelihood, that individual is still going to receive a presumptive service 

connection. 

Under what was the original intent of the legislation, I do not 

think that would happen. Certainly under the current draft of the 

legislation. The intent of the legislation, as we understood it in 

dealing with the Subcommittee staff, was there is this implication 

that any service in Iraq or Afghanistan is essentially a stressor 

and, therefore, there should be a presumption for service connection. 

I think that is what is the underlying implication of the legislation. I think if anything, with the rewrite of the legislation that is 

in the current form of the bill, it is tailored down to such a point 

that it does not support that idea. 

And so to some degree, what the VA currently uses and the statute supports it, but I think, not to speak for my colleagues here, 

but I think the idea is that it needs to go farther than just simply 

saying presentation of a combat medal is enough to qualify you because there are obviously circumstances where it could be beyond 

that. 

Even the example that Mr. Smithson used, that individual 

maybe does not qualify for a combat medal, maybe for a V device, 

but is that situation any less of a stressor? 

So I think the things do not tie together to support what I believe is the intent from what we have heard from all of the Committee staff when we met initially on this. 

Mr. LAMBORN. Thank you. 

Anyone else? Mr. Abrams. 

Mr. ABRAMS. Yeah. I would like to point out that as we proposed 

changes in the bill, no one would get service connected unless a 

doctor determined that the veteran had the symptoms that would 

qualify for PTSD and the doctor linked the current symptoms to 

the alleged event. 

Basically what you are establishing if you write this bill right is 

that the VA does not have to spend several years trying to find 

unit records or the veteran does not have to petition the VA to 

write letters to fellow servicemembers years later to confirm the 

fact that the Humvee was blown up. 


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If you do that, you have protected against any attempts at fraud. 

And also, people who come back from combat areas come back, 

some of them are mentally fragile. I took my father years ago to 

see Saving Private Ryan. He was a veteran of World War II and 

was part of Anzio and southern France and he was in invasions 

where he hit the beach. He walked out, and he did not go out of 

his house for several days. 

People can be fragile and an event after service can trigger the 

memories that people try for a long time to forget. So I am not sure 

there is as much fraud as people think. So I would say if you write 

it right, you are going to be fine. 

Mr. BAKER. I would like to try to answer that. As far as the 

fraud question, I say absolutely not. You asked as is currently written. The only thing I think would change in the way it is currently 

written is the link between the stressor and the diagnosis because 

it does not change VA’s internal mechanism for determining who 

engaged in combat. So that determination, which usually requires 

official records, would stay in place. The requirement for the diagnosis would stay in place. 

The presumption, as written, would do away with the link when 

you meet those two criteria. And I can tell you after reviewing tens 

of thousands of cases in my career, that is not the problem. If a 

veteran has official records and the diagnosis, they are almost 

never denied. 

Again, I think exactly what everybody else has said. The problem 

is in many cases, when you know a veteran did participate in combat, but there are no official records, either poor recordkeeping 

from the military or they were detached to a different unit for a 

temporary period of time, like in a convoy. I mean, there is usually 

a record of event somewhere. 

But in that last example I just gave you, the veteran may not 

know what unit that he was attached to for a short period of time, 

an hour or a day, especially when he was attached to something 

else the following day and something else the day after. 

And so that unit that was attacked may have a record, but his 

unit will not. And so he cannot prove it. So there lies the problem 

and if you could fix that with the DoD, you could probably fix this 

whole thing. But you are not going to. 

The issue of the claims backlog, as it is written, I think since it 

would not change much, I think everything will stay just about the 

same. But I have to say I absolutely do not agree with those that 

would say we should not make it easier for legitimate combat vets 

to prove they were in combat based on the claims backlog. 

And I realize that goes against everything you hear us say a lot 

of times about the claims backlog, but if we have a law that we can 

make that is going to help benefit veterans, it should not be withheld because of the backlog. And that is my position on that. 

Mr. LAMBORN. Okay. Thank you, gentlemen. 

And, Mr. Chairman, I yield back. 

Mr. HALL. Thank you. 

Thank you all for the work that you have done with us and with 

the staff and for your service to our country and to our veterans 

and for your testimony today. This panel is now excused. Enjoy the 

rest of the afternoon. 


smartinez on PROD1PC64 with HEARING
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Oh, I am sorry. Excuse me. Mr. Bilirakis, you are now recognized. 

Mr. BILIRAKIS. I guess I have been too quiet over here. 

Mr. HALL. Mr. Bilirakis for 5 minutes. 

Mr. BILIRAKIS. Thank you very much. 

Thank your for your testimony. 

To the entire panel, what do you believe are the biggest obstacles 

we need to overcome to improve the overall quality of the claims 

adjudication process? 

Do you think the legislation that we are considering today will 

improve the quality of claims, the claims decision process? Do you 

have any recommendations or additional items that should be addressed by this legislation? And for the entire panel. 

Mr. ABRAMS. Yes. I think that unless you change the VA work 

measurement system, while you can make small changes that will 

improve things, you will not change the overall problems until VA 

managers are encouraged to do it right at the beginning, to develop 

the claim properly, to provide proper notice, to really have a nonadversarial program, we are just going to be spinning our wheels. 

They have too many claims with too few people to do them. They 

need to do them right and you need to know how really long it 

takes and how many people are really needed. And I have talked 

to you about this. I think I talked to you in the 1980s and this is 

the same thing. This needs to be fixed. Blow it up, do something 

else with the work measurement system. It will help veterans. It 

will help the backlog overall because people will do it right even 

though it might take longer the first time. You will not have the 

hamster wheel that is running around now. 

Mr. BILIRAKIS. Thank you, sir. 

Anyone else wish to comment? 

Mr. BLAKE. Mr. Bilirakis, I would say if you address a few of the 

concerns, I think that everyone here has outlined, the bill definitely 

makes a positive step forward in my mind anyway. 

And I would also encourage you to go to the Independent Budget 

and check out some of the benefits recommendations that are outlined in far more detail that get a number of different things, 

whether it be in the compensation and pension side, whether it be 

all the way up into the appeal side and the Court as well. A lot 

of the things here that are addressed within the bill can certainly 

be reviewed in the IB as well. 

Mr. BILIRAKIS. Thank you. 

One last question, Mr. Chairman, of the entire panel. 

How long is your service officer training? How do you develop 

your certification testing for your service officers and is it an open 

book test? I have always wondered that. Whoever would like to go 

first. 

Mr. SMITHSON. Speaking for the American Legion, we have 2 

yearly annual Department service officer schools that are conducted by the National Organization of the American Legion where 

our service officers in the field come in and receive training for a 

week. 

The majority of their training is provided by their respective organizations, either their State or what we call in the American Legion language Department organization. 


smartinez on PROD1PC64 with HEARING
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In keeping up with new VA requirements, we are testing all our 

accredited service representatives to ensure that they are still proficient and competent and this is in accordance to a new VA rule 

that was just passed. 

And that test is a hundred question test. It is an open book test 

because obviously service officers in the field, when they are representing people, they have access to material and resources. We 

do not expect them to, you know, keep everything in their head. 

But we are doing that and in the last few years, we have definitely moved in the direction of stronger oversight and proficiency 

requirements. 

Mr. BAKER. The DAV has an 18-month training program initially 

when hired. Once that is complete, and that is fairly in depth, 

there is testing at various stages every 4 months. We work hand 

in hand with the VA’s Voc Rehab to see that program through. 

There is a fairly extensive test in the end. It is open book because we require our people to write the references, at least when 

I was administering the test. I am assuming they still do. 

Once that 18 months is over with, all of our professional employees continue on a two-year testing program where we have two 

manuals. Basically we call them Book A, Book B. But each take a 

year to get through. 

And each month, we take a section and train, whether it is musculoskeletal disabilities, in 1 month or various adjudication procedures if you are not talking about the actual rating schedule itself. 

Each section is done over a month’s period of time. You test at 

the end of the month. At the end of that first cycle, we test again 

and then we start the second book and do the same thing. 

Once that is done, there is usually a brief break. Usually we update the training materials and then we start the whole thing over. 

And that is done throughout the career of our representatives. 

Mr. BILIRAKIS. Anyone else. 

Mr. HILLEMAN. The VFW maintains a career-long training program for our service officers. Generally a new service officer has a 

shadowing program where they work with a senior service officer. 

Within that first year of employment, they are required to complete so many hours of training at a national level. At the national 

level training is between a week or two, depending on the training 

cycle. 

And during the program, we contract with former VA employees 

who have worked in adjudication process who are recently departed 

from VA so we can get some of the most experienced people at a 

point in their career where their knowledge is the most current. 

We offer three different stages of training, stage one, stage two, 

and stage three, depending on which part of your career you are 

in. If you are in your first 1 to 4 years, it is stage one. At year 4 

to 12 you are in stage two and anyone beyond 12 years usually 

does stage three. 

Mr. BILIRAKIS. Okay. Thank you very much. I appreciate it. 

Mr. HALL. Thank you, Mr. Bilirakis for those insightful—— 

Mr. BILIRAKIS. I appreciate it. 

Mr. HALL [continuing]. And crucial questions. 

Mr. BILIRAKIS. Thank you. 

Mr. HALL. I am sorry for almost overlooking you. 


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Mr. BILIRAKIS. No problem. 

Mr. HALL. Once again, thank you to our panel. You are now excused. Enjoy the rest of your afternoon and thanks again for your 

hard work. 

And we will ask our third panel to come up and join us at the 

witness table, Bradley G. Mayes, the Director for Compensation 

and Pension Service of the Veterans Benefits Administration, U.S. 

Department of Veterans Affairs; accompanied by Richard J. 

Hipolit, Assistant General Counsel, and Steven L. Keller, Senior 

Deputy Vice Chairman of the Board of Veterans’ Appeals (BVA). 

Gentlemen, thank you so much for your patience and for joining 

us. 

Mr. HIPOLIT. Hipolit. 

Mr. HALL. Okay. Sorry for mispronouncing it the first time. 

Yes. Your full statement is entered into the record and you are 

recognized, Mr. Mayes. 

STATEMENT OF BRADLEY G. MAYES, DIRECTOR, COMPENSATION AND PENSION SERVICE, VETERANS BENEFITS ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY RICHARD J. HIPOLIT, ASSISTANT GENERAL 

COUNSEL, U.S. DEPARTMENT OF VETERANS AFFAIRS; AND 

STEVEN L. KELLER, SENIOR DEPUTY VICE CHAIRMAN, 

BOARD OF VETERANS’ APPEALS, U.S. DEPARTMENT OF VETERANS AFFAIRS 

Mr. MAYES. Okay. Thank you, Mr. Chairman, Ranking Member, 

there he is, Ranking Member Lamborn, Congressman Bilirakis, 

Members of the Subcommittee, thank you for the opportunity to 

testify today on the draft ‘‘Veterans Disability Benefits Claims 

Modernization Act of 2008.’’ 

As you noted, I am accompanied today by Richard J. Hipolit, Assistant General Counsel, and Steven L. Keller, Senior Deputy Vice 

Chairman, Board of Veterans’ Appeals. 

I will get right into it here so we can get to the questions. 

Section 101(a) of the draft bill would add PTSD to the statutory 

list of diseases that are presumed to have been incurred in or aggravated by service under certain circumstances. The presumption 

would apply to any veteran who engaged in combat with the enemy 

in active service during a period of war, campaign, or expedition, 

and who is diagnosed with PTSD. 

The Department of Veterans Affairs does not support section 101 

because this provision, as currently written, would eliminate that 

need for a link established by medical evidence between current 

symptoms and an in-service stressor. 

And as the previous panel has mentioned, VA already has in 

place regulations that provide a lower threshold of evidence for 

substantiating a claim for PTSD in the case of a combat veteran. 

Sections 102, 103, 104, 108, and 110 of the draft bill call for studies on readjustment of the rating schedule, the work credit system 

in use by VBA, the work management system in use by VBA, the 

use of medical health professionals in support of the VBA claims 

process, and the use of information technology in the claims process. 


smartinez on PROD1PC64 with HEARING
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We do not support these sections because we do have already in 

place a contract for studies on quality of life, earnings loss, and 

transition payments. And the results of these studies should be due 

in August and could form the basis for a reform such as this legislation would require. 

We currently conduct a work measurement study approximately 

every three to four years with the most recent study completed in 

November of 2007. We have access to Veterans Health Administration physicians in support of the VBA claims process. 

And, finally, Ranking Member Lamborn, I know we have talked 

about this before. VA is in the initial stage of the acquisition process to engage the services of a lead systems integrator to assist in 

our business process modernization effort which I know this is getting at. 

Section 105 would require VBA employees and managers who 

are responsible for processing benefit claims to take a certification 

exam. 

Section 109 would add a new section 1156 to Title 38 United 

States Code (U.S.C.) getting at temporary ratings for unhealed or 

incompletely healed injuries. 

Again, we think these are unnecessary. VBA already had a certification examination process for veteran service representatives 

and we are expanding that to include rating veteran service representatives. 

Regarding section 109, we have authority under current regulations to award prestabilization ratings for all disabilities meeting 

the criteria that is in this legislation. 

And, further, the review of all pending claims within 30 days 

after the date of enactment would be difficult using currently available resources. 

Section 106 would amend 38 U.S.C. § 7731 to require VA to enter 

into a contract with an independent third-party entity to conduct 

an annual assessment of the quality assurance program required 

under that section. 

VA does not feel that that is necessary. The Government Accountability Office, in a recent assessment of the Department of 

Defense disability evaluation system, referenced the VA Compensation and Pension Quality Review Program as a favorable model. 

Having said that, we are very proud of that program, so we think 

that if someone did look at it, we would do fine. 

Section 107(a) would add a new section 5109(c) to Title 38 U.S.C. 

requiring VA to take such actions as necessary to provide for the 

expeditious treatment of certain fully developed claims to ensure 

that any such claim is adjudicated not later than 90 days after submission. 

Section 107(b) would amend 38 U.S.C. § 5103 to require VA as 

part of its notice to claimants of the information and evidence necessary to substantiate a claim, to provide the claimant with a check 

list, a detailed check list as we heard earlier from the previous 

panels. 

We are already fast tracking the ready-to-rate claims. Further, 

we are worried that unrepresented veterans or veterans represented by Veteran Service Organizations might in some instances 

be disadvantaged by those rules. 


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And regarding 107(b), we do desire to improve the utility of our 

notice letters to the extent that the intention of the bill is to require a check list containing claim-specific information. We believe 

the provision may actually result in delayed claim adjudications 

and unnecessary litigation. And we are dealing with that now actually with the claim-specific notice. 

I would like to, in the interest of time here, go on to section 111. 

Section 111 would add a new section 5121(a) to Title 38. It would 

provide that a person who under current law would receive accrued 

benefits based on the death of a claimant who dies while awaiting 

the adjudication of a claim be treated as the claimant for purposes 

of processing the claim. It does go into some other detail. 

We do not object to this section, which would allow the submission of evidence in support of a claim that was pending before VA 

when the veteran died. Such legislation would be consistent with 

what the Veterans Disability Benefits Commission recommended, 

to allow survivors, not the creditor to pursue a veteran’s due, but 

unpaid benefits. 

And, finally, section 201, the single separation exam pilot study, 

we urge Congress to wait for the results of that pilot study before 

we move out on that. 

And section 302 for the reasons cited in my written statement for 

the record, we would also oppose that section. 

I would be happy, Mr. Chairman, Ranking Member Lamborn to 

answer any questions at this time. 

[The prepared statement of Mr. Mayes appears on p. 66.] 

Mr. HALL. Thank you, Mr. Mayes. 

Well, I am glad you like section 111. 

Mr. MAYES. Mr. Chairman, having said all that, actually, we are 

not that far off in some areas, I believe. 

Mr. HALL. We all are, I assume, trying to do the same thing and 

you at the VA are a moving target, if you will, because while we 

are trying to respond to what we are hearing, you are also responding to what you are hearing and to what you are hearing that we 

are hearing. 

Mr. MAYES. Yes. 

Mr. HALL. So I am not surprised that there are things underway 

that you are advising us to wait for the results of. 

But we have with regard to the stressor, the presumed stressor 

for PTSD, as you probably heard earlier, you know, this is the 

thing that we hear, that I hear about the most, and I think most 

Members hear not just in these legislative hearings, but in our 

work in our districts. 

I certainly did not intend, I do not think we intended the language of this proposed bill to make it harder for a veteran to prove 

service-connection. We heard a couple of different suggestions for 

language that would correct that. 

Is your suggestion that we leave the language of the existing law 

or did you like any of the options presented by the earlier witnesses? 

Mr. MAYES. Well, I think what I would say on this matter, first 

of all, the discussion was very robust. It was a good discussion and 

I think everybody hit the issue. 


smartinez on PROD1PC64 with HEARING
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You know, PTSD requires three things. It requires medical evidence diagnosing the condition. It requires credible supporting evidence that the claimed in-service stressor occurred and then a medical nexus between the two. 

You know, the diagnosis is not a problem for us. The medical 

nexus really is not a problem for us. We get that from an examiner, 

from a psychologist or a psychiatrist. It is this issue of a stressor. 

And the discussion so far has revolved around combat. And for 

veterans who engaged in combat, that is really not a problem either if we know that they engaged in combat. In fact, what we did 

was we took the statute. We took the definition of combat and we 

tried to come up with a way to nail that down because then the 

evidentiary threshold is lower for a veteran to prove a stressor. So 

if they engaged in combat, their lay testimony is good enough and 

then we move that case forward. 

If you are asking me do I think that we need to change that, I 

mean, I think that is the issue really that you are dealing with. Do 

you want to expand? Do you want to expand combat to mean something other than engaging with the enemy? 

And at this point, I would say we are executing the regs or the 

statute as it stands. And if that changes, of course, we would expand. 

Mr. HALL. I will give you a couple of for instances. An Army 

Lieutenant who is serving in his first tour of two in Iraq and the 

initial assault on Fallujah and sees many of his comrades fall 

around him and sees extensive and graphic civilian casualties and 

upon return home has classic PTSD symptoms and has repeatedly 

been given a zero rating by the Regional Office. Then after two 

years of private psychiatric treatment during which time he is diagnosed as having an exaggerated startle reflex and suicidal tendencies and inability to sleep for more than a couple hours at a 

time and so on, comes to our office and we send one of our staff 

in with him and he gets a hundred percent rating and is granted 

back disability payment for the two previous years and an ongoing 

compensation. 

I do not know what has to happen for that. Is this an issue of 

the training which—again, we are trying to deal with consistency 

of training and rating in this bill, and the fact that there seems to 

be at different ROs different ratings that come out for the same 

veteran. In fact, we have heard that from a number of sources, or 

is it something that can be dealt with in the service connectedness 

determination or the definition? 

Mr. MAYES. Well, I think in that example that you just gave, 

first of all, it is unfortunate if we miss the evaluation, if we did 

not properly compensate the veteran up front. And we are doing 

lots of things to promote consistency and get it right the first time. 

That is really a separate issue from the discussion about service 

connection for PTSD because it sounds like in that case, whatever 

the stressor was, whether it was a Combat Ribbon or possibly simply buddy statements and us corroborating that they were there, 

we granted service connection. 

Mr. HALL. Right. There is no question about—— 

Mr. MAYES. Right. 

Mr. HALL [continuing]. Combat in that case. 


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Mr. MAYES. Right. So they are in the system. Regarding the evaluation, I would say a couple of things. You know, one of the things 

that that Veterans Disability Benefits Commission said was you do 

need to look at the evaluation criteria for PTSD and for mental disorders. 

And so we are doing that. We met with Social Security to see 

how they do it. We were headed down a path of possibly having 

separate evaluation criteria for multiple categories of mental disorders. Social Security breaks into two. We are still trying to figure 

out the best way to do that, but we think we are poised to make 

changes on the rating schedule with respect to mental disorders. 

Mr. HALL. Excuse me, Mr. Mayes. Is the problem possibly the 

VA’s overly narrow interpretation of § 1154 as outlined in the 

M21s? 

Mr. MAYES. Well, in that particular case, we granted service connection. So, I mean, we—— 

Mr. HALL. It should be not applied. 

Mr. MAYES. Yeah. That would not have applied. 

Mr. HALL. Let us just take a for instance that was mentioned by 

one of the previous witnesses. What about a clerk who is driving 

in a convoy and a vehicle in front or behind is hit by an IED and 

they assist with rescuing people or even just see people in those 

difficult straits of being killed or wounded and the stress that 

comes about from that kind of situation? 

Mr. MAYES. Well, we have a mechanism to arrive at service connection for PTSD in those cases. 

If I could go back to § 1154(b), the provisions there, the way that 

regulation for that statute was structured and the regulations behind that statute were structured was that we would, if a person 

could demonstrate that they engaged in combat, then we would accept their lay testimony on its face. We would not have to go any 

further. And the statute is pretty clear. It says engaged in combat 

with the enemy. 

So what we had to do was figure out how do we define engaged 

in combat with the enemy. And we did that in our procedures. We 

said if you get these medals or you have buddy statements or you 

outline facts that are consistent with those hardships. So we did 

through, procedure, try and make that definition. 

Is that overly restrictive? I think what I would say is it is trying 

to interpret the spirit of the statute and the law. 

Mr. HALL. Granted, that is well put. And I guess what I am hoping to do is to be more inclusive to the point where this week, for 

instance, people sleeping in the green zone where in October, I was 

told to go to bed and be careful not to use that water to brush my 

teeth, but use the bottle, you know now, this week, they are being 

told sleep in your helmet and your body armor because of the incoming rounds of mortar and rocket fire. 

And there have been significant casualties, in the green zone. 

Somebody who is working there and is not—well, I guess you could 

say they are in combat with the enemy in that they are taking incoming rounds. 

But what about stress from these kind—I mean, I have heard as 

you I am sure have also that diplomats and their staff and so on 

have been claiming to be suffering from PTSD symptoms from 


smartinez on PROD1PC64 with HEARING
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being in Baghdad or being in Iraq in this circumstance and not 

knowing where the danger might come from, not knowing, not having a front or a rear as people in prior panels have said. 

Service in OIF/OEF or other combat zones when there is a diagnosis and a claim being made that is backed up by a psychiatric 

examination and the veteran has been deployed to one of these— 

Mr. Abrams from the prior panel suggested unless there is proof 

that the stressor came from some incident that happened while not 

in the service or while not in combat should be granted. 

Is that to your way of thinking a viable way of approaching this 

would be? 

Mr. MAYES. Well, there are certainly many instances of stressors 

where someone would not have a Combat Ribbon. That scenario 

that you presented where someone was in a convoy, in our procedures now, what we would ask is, can you give us information 

about that circumstance. 

And then we have a duty to assist, to go try and collect evidence 

to substantiate that assertion that I was in the convoy, I saw an 

IED explosion. So we will go out. We will ask for buddy statements. 

For the recently returning servicemembers, we might call a unit 

historian and we will take their word for it and document on a report of contact that they corroborated this person was there and 

saw this. Again, that is good enough. 

See, it does not have to be a combat stressor for us to grant 

PTSD. The whole purpose of 1154(b) was to say that if you could 

place someone in combat, then their statement alone is good 

enough. But if you cannot, we will still try and corroborate the 

stressor. And if we can and the examiner opines in their opinion 

that the stressor is the cause of the PTSD, then the grant is good. 

Mr. HALL. Thank you, Mr. Mayes. 

I am going to recognize our Ranking Member, Mr. Lamborn. 

Mr. LAMBORN. Yeah. Thank you, Mr. Chairman. 

I asked a similar question earlier, but I would like to ask you. 

If section 101 were to pass in its current form, what do you think 

would happen to the possibility of the backlog increasing or the 

possibility of more gaming of the system? 

Mr. MAYES. Well, the way I read 101, it says we will presume 

a stressor if the veteran engaged in combat. So we will still be trying to chase down whether the veteran engaged in combat. The 

Agency will still have to have a definition of what combat is. 

So, you know, on its face, I am not sure it would change a whole 

lot because you see as the discussion occurred today that is what 

is sometimes problematic when we do not have a Combat Action 

Ribbon or a CIB or what have you. 

And I would add you do not even have to be near combat to be 

granted PTSD. I awarded service connection on a case one time for 

a Navy diver who was pulling bodies out the Potomac after the 

plane crash some years ago. 

So, you know, the notion of combat, we are still going to have to 

try and run down whether they—you know, if they do not have the 

ribbon, were they in combat, and we would have to go get buddy 

statements just like we are doing today. But we are doing that 

today. 

Mr. LAMBORN. Okay. Thank you. 


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Now, right now the VA has the authority under section 1154 to 

find that there is the engagement in combat with the enemy like 

we were just talking about. 

One idea that I am playing with and talking to staff and Chairman Hall about is having a study done on how much the VA is actually using that or how it is using that. 

What would be your thoughts on that possibility? 

Mr. MAYES. A study to determine how frequently we apply 

§ 1154(b). 

Mr. LAMBORN. Yes. 

Mr. MAYES. I think that, you know, that’s certainly something 

that we could consider doing. I am trying to think. You know, typically what we would do is in the discussion that describes the reason for our decision, if we applied § 1154(b) in order to utilize a lay 

person’s statement, we would lay that out in the reasons and bases. 

But I do not know that we capture that information in a distinct 

data field that we could then data mine. It would probably require 

us looking through cases that would be a workload issue for us to 

pull a sampling. 

Mr. LAMBORN. Okay. Thank you. 

And then a minute ago, you said that we are—by we, I mean 

yourself and the way the bill is currently drafted—fairly close on 

some things. 

Where would those points of closeness be? 

Mr. MAYES. Well, we are definitely, I think, very close on the 

provisions for accrued benefits claims. You know, I have said in 

previous testimony that we would definitely entertain continuing to 

develop a claim. Once we get an accrued benefits claim, continuing 

to develop for additional evidence for the claim that was pending 

at the time of the veteran’s death. I think we are close there. 

Frankly, I think that what we are doing with trying to bring on 

a lead systems integrator is getting at what you are interested in: 

leveraging technology to make some efficiency improvements. 

Our contracting process is just painfully slow. You know, first, 

we have to develop a statement of work which we have actually 

pretty much completed and then the bid solicitation process, get 

the bid on the street, go through that competitive process. 

But I have seen some of the work done on that. You know, I 

think within a reasonable amount of time with that assistance, we 

could have a plan that I think is headed in the direction that you 

are talking about with your proposed language, and I forget what 

section it is, but regarding automation. 

Mr. LAMBORN. Any other sections of the bill that you see closeness to? 

Mr. MAYES. Yes. I think as I alluded to in the studies, we are 

working with a contractor or we have engaged a contractor to study 

quality of life, earnings loss, and transition payments. That was 

referenced in the bill. And I believe those results are supposed to 

be available sometime in August or the September timeframe. 

And myself and my staff have already met with the contractor. 

We are going to meet with them again to discuss quality of life. 

I mean, we have provisions in our regulations right now under 

paragraph 28, paragraph 4.129 to allow us to pay veterans who 

have unhealed or incompletely healed injuries. 


smartinez on PROD1PC64 with HEARING
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So when I say we are close, I actually think, you know, that legislation, we do not need it because it is there. We have authority 

to do it. 

What you want us to do and we want to do it is get to the claims 

faster. I mean, it seems to me that is what it is about. And on the 

severely injured, I pulled some numbers, we are doing those in 

about 100 days as opposed to 182 days. And operationally we are 

putting an emphasis on the severely injured servicemembers and 

veterans. 

The Disability Evaluation System process, that pilot is moving 

forward. So a lot of the things that are in here really we are underway with. 

Mr. LAMBORN. Thank you. 

And, Mr. Chairman, I yield back. 

Mr. HALL. Thank you, Mr. Lamborn. 

And, Mr. Mayes, as you heard, we have a vote called, so I will 

just ask you a couple more questions. 

You know, the genesis of this temporary rating section is having 

heard about people who are not getting their claims paid for injuries not in dispute. They might have an eight-part claim and then 

maybe one part of it is a severe injury that is not in dispute, like 

an amputation or a TBI or something like that, and that the claim 

as a whole is being processed and they are going through the auditory and the vision and the various other aspects of it. 

I asked Secretary Walcoff when he was testifying before the Subcommittee, why am I hearing about cases where this is not happening, why can we not just, if there is something as obvious as 

a leg amputation, like one goes to Iraq with two legs and comes 

back with one, can we not start paying immediately when the veteran presents a claim on that part of the claim that is not in dispute. 

He said we do that. We can do that now. It is in the regulation 

just as you just said. And I said, well, then, why is it not happening, why are we hearing that is not happening. He said, well, 

because of bureaucratic confusion or certain claims processors who 

may feel that it is in their best interest in terms of the work credits 

and the guidelines for them to finish the whole claim first. 

So there are two things that we are talking about doing here. 

One is by studying the credits that we may arrive at a situation 

where work credit would be given for early payment on the part 

of a claim which is not in dispute. And the other one is that we 

can get the veteran a flow of disability compensation going for him 

and his family, if he has a family, who may really need it. 

We are only asking for things because we are hearing about 

them not being done. 

By the way, we added one word there, healed or their injury 

healed, unhealed, or incompletely healed to allow for, for instance, 

an amputee who in Landstuhl has done a good job with rehabilitation and he or she comes back looking pretty much the way they 

are going to look. While the rest of their claim may take some adjudication, that is one thing that could be paid on a temporary basis 

as opposed to a prestabilization basis that part of the claim paid 

immediately while the rest of it is being processed. 

Just curious what your reaction to that is. 


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Mr. MAYES. Well, I think I was here when Mr. Walcoff made that 

statement actually and it is true. We have the ability right now to 

adjudicate a claim right up front, do a temporary decision, and 

then continue to collect the evidence for all of the other issues. 

The only thing I would say is there is attention. In the clear-cut 

case of an amputation, there is no reason we should not pay that 

right now, get the benefit stream started, and then collect the evidence on the other issues. 

Frequently, though, the case is a little more complicated. We end 

up with a lot of evidence, much evidence in some cases, and a reference to other evidence, maybe private treatment records or, you 

know, we will go out for an exam. 

And so there is that balance between reviewing all of that evidence up front to determine if we can do a partial rating, do the 

partial rating, then continue to collect all the evidence and do a 

second rating on that same case maybe, you know, 6, 8, 10, 12 

months down the road. 

And unless it is something obvious that sticks out, frequently 

they will go ahead and collect all of the evidence, get the exam, and 

just do one decision rather than two. 

So that is the cost. That is the cost to do those temporary ratings 

is that you are really going to adjudicate that claim twice. And as 

you know, as you have mentioned here to us, we also have, you 

know, an inventory, a backlog. And so we are faced with the prospect of getting at that inventory and getting the benefits going. 

And there is a balance. 

Mr. HALL. I understand that. But at the same time, if it is something that is visible, indisputable, medically proven, it is in the 

service record, it should not take any time really. It should not 

take much at all to say, okay, here is something that is clearly 

service related and it should be compensated for and let us just 

start—— 

Mr. MAYES. Yes, sir. 

Mr. HALL [continuing]. Writing the checks. I mean, that does not 

seem to me like you are talking about more than an hour or something. Maybe I just do not understand. But I appreciate your input 

on it. And we are all after the same thing. 

Mr. MAYES. Yes, sir. 

Mr. HALL. And I think the better you and the ROs and the processors do that, which the Under Secretary says you now have the 

authority to do. I mean, we put the word in shall, the Secretary 

shall—— 

Mr. MAYES. Yes, sir. 

Mr. HALL [continuing]. Because, you know, we were afraid that 

the authority is there, but is not being used. Show us that the legislation is not needed and, then maybe we will not put that in 

there. 

I have a hard time, as you can imagine, as the veterans and 

their families have a hard time, and I understand it is maybe a 

small percentage of the time that this happens when it should happen more regularly. 

But, anyway, we may have some other questions which we will 

submit to you in writing. Thank you for your patience. 


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Thank you to all the witnesses, thank you to all the staff, and 

we will keep working together to try to solve these problems. 

Thanks to the VSOs and the other veterans advocacy groups for 

your support and have a good night. 

This Committee is adjourned. 

Mr. MAYES. Thank you, Mr. Chairman. 

[Whereupon, at 4:19 p.m., the Committee was adjourned.] 


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(41) 

A P P E N D I X 

Prepared Statement of Hon. John J. Hall, Chairman 

Subcommittee on Disability Assistance and Memorial Affairs 

Good afternoon: 

I would ask everyone to rise for the Pledge of Allegiance—flags are located in the 

front and in the rear of the room. 

I am proud to be here today and honored to be joined by Ranking Member 

Lamborn in a bipartisan effort to present this historic legislation that will reform 

the VA Benefits Claims Processing System. This is in no way a unilateral effort. 

Many of the provisions within this legislation were independent bills offered by 

Members of this Committee on both sides of the aisle. I am confident that when it 

is voted on, it will leave this Committee as a seamless, fluid piece of legislation that 

will grant the wounded warriors of this great country the service they deserve. 

I once read, ‘‘Veterans programs are not perfect. Much remains to be done by way 

of improvements along forward looking and constructive lines. The dominant problems are the carryover from past decades of a backward-looking pension philosophy 

and our failure to adjust the existing veterans’ programs to fundamental changes 

in our society.’’ I found this quote to be striking as it also captures my observations 

of the Veterans Benefits Administration, yet unfortunately those observations were 

made by Omar Bradley in 1956. We should have listened to the General then, but 

it is imperative that we do it now, especially since we have our troops in harm’s 

way around the world. 

The Subcommittee has conducted extensive oversight during this Congress and 

has listened to the testimonies of disabled veterans, their families, and survivors 

who explained their problems with VA benefits. Many of their concerns led back to 

issues with claims processing delays, denials, and avoidable remands. For a moment, I want to reflect on what they said, since these are the very people at the 

heart of this bill. 

We’ve heard from a paralyzed veteran who went a year without compensation because of lost files and poor communication with VA that put his family in dire financial stress and forced his children to drop out of college. There were parents who 

talked to us about suicide and mental health problems and the inability of their beloved child to get VA healthcare—in many cases, service connection is necessary to 

accessing that care. Another veteran who suffered a Traumatic Brain Injury and an 

amputation, along with his wife, confronted us with how exhausting it is to figure 

out VA benefits and the gaps that exist because the model is outdated and archaic— 

even for a case that is so obviously clear cut and simple. It does not account for 

the loss in their quality of life, or their ‘‘real-world’’ needs. 

And these atrocities are not just affecting veterans from current occupations. They 

affect veterans of every age and every conflict. I heard a story of a World War II 

veteran who had a mortar shell that landed directly in front of his face. He recalled 

the medic who attended him on the battle field and his difficulty in telling the difference between his burns and his facial hair. After being taken to a medical facility 

he then learned that this incident had never been reported by the medic. As a result, this brave soldier, who served his Nation in a time of dire need, had to fight 

the VA for 51 years before finally being awarded his benefits due to the requirements of finding witnesses of the event and the burden of proof that is all too often 

impossible or extremely difficult for veterans to both understand and complete. As 

he stood and told me this story, I watched as he grasped a folder that contained 

his disability claim and heard him state that he would never let it go in fear that 

the VA would rescind his claim and take back his money. 

For too long the VBA has been allowed to skirt their responsibility to reward our 

veterans with the same type of selfless, heroic service that the veterans themselves 

gave to our country. However, reciprocity is at hand. The Veterans’ Disability Benefits Commission, Dole/Shalala, and other task forces have all made recommendations to improve the system. We have data from the Institute of Medicine, the Center for Naval Analyses, the Institute of Defense Analyses, and several government 


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Accountability Offices and Inspector General Reports that highlight inconsistencies, 

variances, disparities, and errors. The Veteran Service Organizations have shared 

their ideas and experiences to reform VBA and have played an integral part in 

shaping this legislation. 

Expert medical, legal, and technological witnesses have enlightened us on what 

is possible in our modern world. VA employees have also worked with us to tackle 

these problems and there is no doubt that this is a workforce dedicated to assisting 

disabled veterans. Unfortunately, they work in a broken, outdated environment. So, 

I am grateful to them, and everyone who has been willing to work with us on developing the improvements in this legislation. 

With the Veterans Disability Benefits Claims Modernization Act of 2008, we hope 

to address the centric issues that have led to the enormous and mounting claims 

backlog, delays in processing, avoidable errors, inconsistencies in ratings and lack 

of accountability that amounts to a ‘‘system of injustice’’ for our veterans. 

Title I of this bill encapsulates several sections that will: 

• Address evidence problems with Post Traumatic Stress Disorder (PTSD) claims, 

• Study, report, and implement a plan for readjusting the VA Schedule for Rating 

Disabilities so that it includes: 

• Medically recognized standards, codes and practices, 

• Appropriate compensation for the average loss of earnings capacity, 

• Quality of life impacts, 

• Mental health parity, 

• Encouragements for Vocational Rehabilitation, and 

• Creates an Advisory Committee on Disability Compensation. 

It will also: 

• Study the VBA Work Credit and Management Systems, 

• Require certification and training for VBA employees and managers, 

• Assess annually quality assurance, 

• Expedite fully developed claims and require a checklist for evidence, 

• Report on employing medical professionals at VBA, 

• Assign Temporary Ratings for severely injured veterans while deferring other 

conditions, 

• Enhance information technology that includes: 

• A Web portal for claim submission and tracking by veterans, 

• Rule base expert systems, and 

• Automated decision support. 

Title I also contains provisions to assist survivors by allowing them: 

• A year to submit additional evidence upon the death of a veteran, and 

• To transfer the claim to another dependent. 

Title II of this bill addresses the servicemember’s transition from the Department 

of Defense to VA with the creation of a single VA/DoD disability evaluation examination process, whereby DoD determines fitness for duty and VA rates level of severity. This reduces the duplicity for injured and ill servicemembers who must navigate two different systems at a time when they need support and assistance the 

most. 

Title III focuses on matters related to the United States Court of Appeals for Veterans Claims. It establishes annual tracking requirements for the Court’s workload 

and gives the Court the authority to affirm, modify, reverse, or vacate, and remand 

decisions of the board. The Court must also first decide all assignments of error 

raised by an appellant for each benefit claimed. 

Make no mistake—this is an ambitious, landmark piece of legislation which will 

take a great deal of cooperation and collaboration on multiple fronts. No doubt, this 

will need to be a collective effort that goes well beyond Congress and VA. It will 

require the support and expertise of the VSOs, DoD, leading experts and professionals, academics, and technicians, and other government entities, all of whom 

bring information and experience to the table. I know that VA is moving in the general direction of some of the efforts outlined in the bill, and I applaud your efforts 

in this vein—they are not overlooked. 

Also, I do not want to fail to recognize the hard work and dedication of the VA 

employees throughout the VBA, from the Regional Office to the Central Office. I 

know that the problems we face today are the result of a culmination of events beyond their control, which run the gamut from inadequate funding and poor leadership to a corporate culture that does not foster accountability. Just as I have heard 

stories of calamity, I have also heard stories of the care and compassion of VA emVerDate Aug 31 2005 05:57 Dec 23, 2008 Jkt 043047 PO 00000 Frm 00046 Fmt 6604 Sfmt 6621 E:\HR\OC\43047.XXX 43047

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ployees who genuinely care about our veterans and work tirelessly to provide them 

every service they can. 

But today, time is of the essence and we must stop this incomprehensible cycle 

of ignoring the lack of accountability for outcomes of claims at the VBA. Outcomes 

matter, not just process. I repeat, outcomes matter, not just process and I believe 

that we need to modernize our Nation’s claims processing system to make it accountable to producing better outcomes for our veterans, their families and survivors. 

Ladies and Gentlemen, the time has come when we must envision a VA of the 

future, and not leave Omar Bradley’s warning unheeded at the expense of another 

generation of veterans. 

I now yield to Ranking Member Lamborn for his opening statement. 

f 

Prepared Statement of Hon. Doug Lamborn, Ranking Republican Member 

Subcommittee on Disability Assistance and Memorial Affairs 

Good afternoon, thank you Chairman Hall. 

It is an honor to participate in this momentous occasion. 

The Veterans Disability Benefits Claims Modernization Act of 2008 still has far 

to go, but for the first time in a long while, I believe there is proper alignment of 

thought and a cooperative effort to make substantial improvements to the veterans’ 

benefits claims process. 

This bipartisan bill is comprised of a number of measures that have as their foundation, the collective recommendations of Democrats, Republicans, veterans’ service 

organizations, and two blue-ribbon commissions on veterans’ benefits. 

That is not to say this bill is flawless or that there are not remaining snags to 

be worked out. 

Indeed, there are a couple of issues that cause me difficulty, and one that I believe 

is critically flawed. 

I will elaborate more on those concerns in a bit, but I want to preface those remarks with the fact that I wholeheartedly agree with the intent behind even the 

faulty provisions; still, I am deeply concerned about unintended consequences they 

may hold. 

Principally, I am troubled over the provision that would have VA concede presumption of a stressor for every person who served in theater of operation that was 

subject to combat. 

This could have enormous ramifications for the VA claims system and could potentially increase the backlog. 

At the same time, I am empathetic to what the provision attempts to accomplish. 

I believe an agreed upon solution can be reached, and I believe the expertise needed to arrive at such a fix is gathered here today. 

My other concerns are less troubling, but I remain concerned about what might 

occur if we codify certain regulations and leave less discretion for VA. 

I very much look forward to the testimony of our witnesses, especially VA’s. 

I hope that, based upon recommendations made here, resolutions can be reached 

and this bill will acquire the momentum it needs to make the potential historic impact it holds. 

Chairman Hall, I appreciate the favorable rapport we share on this subcommittee. 

And I eagerly anticipate working with you during the fleeting time left in this session to put some points on the board for veterans. 

Thank you, I yield back. 

f 

Prepared Statement of Hon. William P. Greene, Jr. 

Chief Judge, U.S. Court of Appeals for Veterans Claims 

Mr. Chairman and Members of the Committee: 

As the Chief Judge of United States Court of Appeals for Veterans Claims (the 

Court), I exercise responsibilities as the Chief Administrative Officer of the Court. 

It is in that capacity, and in the spirit of cooperation between the legislative branch 

and a national court of record that I join you today to present the Court’s views 

on the proposed legislative changes concerning the Court that are offered in ‘‘The 

Veterans Disability Benefits Claims Modernization Act of 2008, HRll.’’ 


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H.llTitle III—§ 301—Annual Reports on Workload of United States Court 

of Appeals for Veterans Claims 

Section 301 of the legislation proposes to add to title 38 of the U.S. Code a new 

section 7288 that would require the Court to submit to the Senate and House Committees on Veterans Affairs an annual report summarizing the Court’s workload. 

The Court’s longstanding practice has been to produce an Annual Report on its 

workload. This report is provided routinely with the Court’s budget request, and 

whenever requested by Congress. Additionally, the report is published on the 

Court’s website, and permits the public to compare the Court’s performance over the 

course of time. The Annual Report is modeled after the statistical report compiled 

and issued each year by the Administrative Office of the United States Courts. Indeed, our automated case-tracking system was designed to provide statistics modeled after that report, which are then compiled and reconciled by the Clerk of the 

Court. Our current reporting practice provides much of the data identified in the 

proposed legislation. The Court has responded and will continue to respond to appropriate requests regarding the Court’s caseload, including the items in the proposed legislation. We leave to Congress’ discretion whether codification of this practice is necessary. 

H. llTitle III—§ 302—Modification of Jurisdiction and Finality of 

Decisions of the United States Court of Appeals for Veterans Claims 

Section 302 of the legislation proposes to amend 38 U.S.C. § 252 by adding a new 

paragraph that reads: ‘‘(3) With respect to any appeal filed by a claimant, the Secretary may not make an assignment of error or concede an error not raised by the 

appellant, without first obtaining written consent from the appellant.’’ It is my view 

that this provision has serious jurisprudential concerns requiring Congress’ careful 

consideration. 

First, although the amendment requires a veteran’s consent to a concession of 

error by the Secretary, this provision presents potential ethical ramifications that 

must be considered before prohibiting an attorney, who is an officer of the Court, 

from identifying to the Court what is believed to be a prejudicial error in the Board 

decision on review. However, I leave it to the Secretary to address this consideration. 

Further, requiring the Secretary to obtain written consent from an appellant not 

only will likely cause confusion for some appellants, especially those unrepresented, 

but almost certainly will contribute to delay in the legal review of all appeals. Timely appellate review by the Court is of great importance to veterans, VA, the Court, 

and Congress. And, as I have stated recently in a Congressional response, the most 

obvious and direct way to reduce the amount of time an appeal remains pending 

before the Court is for the parties to reduce the number of motions for extensions 

of time that are filed. In fiscal year 2007, the parties requested over 13,000 extensions of time to prepare and file the record, prepare and file the briefs, and to respond to attorney fee applications. Appeals cannot be submitted to the judges for 

decision until the parties have completed the briefing process. The legislative proposal requiring the Secretary to obtain written consent from an appellant before 

raising legitimate issues not already raised by the appellant is sure to add to the 

extensive number of motions for extensions of time that are filed with the Court. 

Additionally, if written consent is not secured, and the Secretary is precluded from 

bringing to the Court’s attention errors not raised by the appellant that could be 

corrected ‘‘the first time’’, there is potential for repetition of that error if the matter 

is otherwise returned to VA for readjudication. 

Finally, this amendment potentially creates issues involving post decisional matters. In an attorney fees application filed pursuant to the Equal Access to Justice 

Act, the Court must decide whether the Secretary’s actions in the litigation were 

‘‘substantially justified.’’ Making this determination within a system that could prevent the Secretary from identifying potentially prejudicial errors would be extremely 

difficult. Further, I can anticipate that questions would arise as to whether a veteran waives an error and is precluded from later arguing it if he refuses to consent 

to its presentation by the Secretary. 

Section 302 also amends section 7252(a) of title 38, United States Code, by mandating that the Court ‘‘may not affirm, modify, reverse, remand, or vacate and remand a decision of the Board without first deciding all assignments of error raised 

by an appellant for each particular claim for benefits.’’ For the reasons discussed 

below, the Court believes such legislation is not necessary and indeed would slow 

down the Court’s efforts to resolve appeals timely. 

In conducting appellate review, the Court recognizes the well established concepts 

of employing judicial restraint and conserving judicial resources in determining 


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whether to address a particular argument when rendering a decision. Several factors are weighed in employing these concepts. Indeed, 38 U.S.C. § 7261(a) directs 

that the Court decide all relevant questions of law that are ‘‘necessary to its decision 

and when presented.’’ To act within this mandate requires a balancing of interests 

by the Court. As observed by Chief Judge Posner in a concurring statement in 

Rodriguez v. Chicago: ‘‘It is a matter of judgment whether to base the decision of 

an appeal on a broad ground, on a narrow ground, or on both, when both types of 

ground are available. If the judges are dubious about the broad ground, then they 

will do well to decide only on the narrow ground; but if they are confident of the 

broad ground, they should base the decision on that ground (as well as on the narrow ground, if equally confident of it) in order to maximize the value of the decision 

in guiding the behavior of persons seeking to comply with the law.’’ 156 F.3d 771, 

778 (7th Cir. 1998) (Posner, C.J., concurring). Similarly, at times, in deciding to not 

address certain allegations of error, judges of our Court have concluded: ‘‘A narrow 

decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, 

should the Board later rule against him.’’ Best v. Principi, 15 Vet.App. 18, 20 (2001). 

The Court has also recognized that in certain instances it is prudent to address multiple arguments, and that a judge has discretion to ‘‘determine that, while it is not 

necessary, it may be appropriate to address multiple allegations of error in remanding a case.’’ Mahl v. Principi, 15 Vet.App. 37, 38 (2001). 

The Court is aware that the practice of often deciding cases on the narrowest 

grounds has been discussed at length by practitioners in many venues, and the 

Court, through its opinions and in other settings (such as judicial question-and-answer sessions at the Court’s Judicial Conference and its Bench and Bar Conference) 

has participated in this dialog. We are sensitive to this issue and have strived to 

respond to the concerns of the litigants who practice before us. As one of our judges 

stated at the Court’s 2006 Judicial Conference: ‘‘I believe that the Court has listened 

to these comments and taken them to heart . . . [W]e are trying to reach more of 

the issues [raised on appeal]. But in certain instances, clearly jurisprudentially it 

makes more sense not to reach them.’’ 

I want to make clear that although the Court may not make a ‘‘decision’’ on every 

argument in every case, we do consider every assertion of error raised by the appellant and the Secretary, and give thoughtful deliberation on whether the Court’s decision should specifically address that argument. Indeed, I can say with confidence 

that all of my colleagues are sensitive to the lengthy adjudication process that many 

veterans have endured by the time their appeals reach our doors, and my colleagues 

are cognizant of the wishes of both parties to have their arguments heard and considered. Other factors are at play, however, in determining whether it is necessary, 

appropriate, or prudent to expend resources and make binding determinations on 

particular arguments. 

When conducting judicial appellate review, the Court, like all other appellate 

courts, does not engage in fact-finding; appeals must be considered based on a 

record established while the matter was pending before VA. Many errors argued to 

the Court are procedural in nature, and if persuasive and prejudicial, result in the 

Court vacating the Board’s decision and remanding the matter to VA. A remand of 

this nature directs VA to correct the procedural errors, conduct additional evidentiary development on the claim that results from the correct procedure, and 

then, considering anew all of the evidence obtained and arguments raised, issue a 

new decision. Where such a remand has been ordered, often other allegations of 

error become factually moot, and even if persuasive afford an appellant no greater 

remedy than that which has already been secured—a remand of the matter with 

direction that VA readjudicate the claim. For example, if the appellant argues that 

the Board erred in failing to address a specific authority or piece of evidence, a 

judge can require that such evidence or authority be addressed on remand without 

deciding whether it was sufficiently raised or that it was error not to address it the 

first time. Or, if an appellant argues that he did not have an opportunity to submit 

to the VA adjudicator a particular piece of evidence, then he or she will have that 

opportunity on remand regardless of whether a judge decides it was error in the 

original decision. 

Likewise, if an argument is persuasively made that VA failed to take required developmental steps or to notify a veteran of how to establish entitlement to benefits, 

the Court may vacate the Board’s decision and remand the matter so that the error 

may be corrected and the record properly developed. There is no need to rule on 

other factual arguments that are based on an improperly developed record. Knowing 

that VA will reopen the factual basis upon which the claim will be adjudicated and 

issue a new decision based on all of the evidence, a judge may reasonably exercise 

his or her discretion in not making a specific determination on other arguments, 


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such as the sufficiency of the Board’s analysis of the evidence. To do so would be 

to rule on a matter that would no longer have legal consequences because the 

Board’s decision is no longer valid or useful to the determination. Therefore, it is 

my view that to statutorily require that the Court mechanically address ‘‘all assignments of error,’’ regardless of their relevant weight or importance, would have an 

adverse affect on the Court’s ability to manage its sizable caseload and to sustain 

a satisfactory level of production, and would be wasteful of Court resources with no 

benefit flowing to veterans. The principle of judicial restraint counsels that ‘‘when 

a court can resolve a case based on a particular issue, it should do so, without 

reaching unnecessary issues.’’ Black’s Law Dictionary (7th ed. 1999). 

Moreover, there are certain arguments, such as Constitutional challenges, that 

courts deliberately do not reach unless necessary. For example, the U.S. Supreme 

Court recently reiterated that there is a ‘‘fundamental principle of judicial restraint 

that courts should neither ‘‘ ‘anticipate a question of constitutional law in advance 

of the necessity of deciding it’ ’’ nor ‘‘ ‘formulate a rule of constitutional law broader 

than is required by the precise facts to which it is to be applied.’ ’’ Wash. State 

Grange v. Wash. State Republican Party, 128 S.Ct. 1184 (March 18, 2008) (quoting 

Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (quoting 

Liverpool, New York and Philadelphia S. S. Co. v. Commissioners of Emigration, 

113 U.S. 33, 39 (1885)). Requiring the Court to decide all assertions of error would 

not only unnecessarily expend judicial resources, but could operate contrary to this 

principle or require us to make decisions beyond the bounds of the ‘‘case or controversy’’ requirement of Article III of the U.S. Constitution. 

Further, I anticipate that defining when an argument has been raised, or sufficiently raised such that it must be addressed, could be problematic and result in 

confusion and disagreement. The legal content of appellate briefs filed with the 

Court, and particularly the numerous informal filings by unrepresented or pro se 

appellants, varies greatly, ranging from cryptic statements to lengthy submissions, 

and often the particular allegations of error are unclear. The Court endeavors to address the allegations that have merit and to clearly communicate to the parties why 

it is ruling in a particular way. 

Finally, and very importantly, it must be recognized that although the appellant 

may believe that all of his or her assignments of error have merit, that belief may 

not be realized. As observed in Best, supra, if the Court rules that some of the errors 

raised have no merit, that determination is binding and those specific errors may 

not be raised in any remand otherwise ordered by the Court. Such a situation could 

work to the detriment of veterans, who would otherwise have the opportunity to develop and present any such arguments on remand. It could also cause potential further delay in the appellate review process because the appellant would have the 

right to contest that Court decision by appealing to the U.S. Court of Appeals for 

the Federal Circuit. 

Simply stated, it is my view that section 302’s proposed limitation on the Court’s 

discretion to decide alleged assignments of error could have numerous unintended 

negative consequences for appellants and in the promptness of our judicial review. 

I assure the Committee that each judge strives to conduct judicial review responsibly and consistently, and thus I believe this amendment to 38 U.S.C. § 7252 is not 

necessary. 

Conclusion 

On behalf of the judges of the Court, I thank you for your consideration of our 

views on this proposed legislation. 

f 

Prepared Statement of Kerry Baker 

Associate National Legislative Director, Disabled American Veterans 

Mr. Chairman and Members of the Subcommittee: 

I am pleased to have this opportunity to appear before you on behalf of the Disabled American Veterans (DAV) to address the ‘‘Veterans Disability Benefits Claims 

Modernization Act,’’ (the ‘‘Act’’) under consideration today. In accordance with our 

congressional charter, the DAV’s mission is to ‘‘advance the interests, and work for 

the betterment, of all wounded, injured, and disabled American veterans.’’ We are 

therefore pleased to support various measures insofar as they fall within that scope. 

Section 101 of the Act provides a presumption of service-connection for post traumatic stress disorder (PTSD) for veterans diagnosed with such and who engaged in 

combat with the enemy. The DAV fully supports this provision. However, the current high standards required by Department of Veterans Affairs’ (VA’s) internal opVerDate Aug 31 2005 05:57 Dec 23, 2008 Jkt 043047 PO 00000 Frm 00050 Fmt 6604 Sfmt 6621 E:\HR\OC\43047.XXX 43047

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erating procedures for verifying veterans who engaged in combat with the enemy 

are impossible for many veterans of the current wars, as well as past wars, to satisfy. This is usually due to unrecorded traumatic events taking place on the battlefield, unrecorded temporary detachments of servicemembers from one unit to another while in a combat theater of operations, or simply poor recordkeeping. Our 

concern is that without defining who is considered to have ‘‘engaged in combat with 

the enemy,’’ this provision will be rendered moot by VA’s internal requirements. 

If VA applied 38 U.S.C.A. § 1154 properly, the problems this Act targets, and others, would be resolved. Title 38, United States Code, section 1154(a) reads in part: 

‘‘[I]n each case where a veteran is seeking service-connection for any disability due 

consideration shall be given to the places, types, and circumstances of such veteran’s 

service. . . .’’ 38 U.S.C.A. § 1154(a) (West 2002). Likewise, section 1154(b) states: 

In the case of any veteran who engaged in combat with the enemy in active 

service . . . the Secretary shall accept as sufficient proof of service-connection 

of any disease or injury alleged to have been incurred in or aggravated by such 

service satisfactory lay or other evidence of service incurrence or aggravation 

of such injury or disease, if consistent with the circumstances, conditions, or 

hardships of such service, notwithstanding the fact that there is no official 

record of such incurrence or aggravation in such service, and, to that end, shall 

resolve every reasonable doubt in favor of the veteran. 

38 U.S.C.A. § 1154(b) (emphasis added). Specific to PTSD resulting from combat, 

the VA has determined that service connection requires (1) medical evidence of the 

condition; (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) a link, established by medical evidence, between the diagnosis and 

the in-service stressor. 38 CFR § 3.304(f) (2007). section 3.304(f) appears on its face 

to be consistent with the statute by stating: 

If the evidence establishes that the veteran engaged in combat with the 

enemy and the claimed stressor is related to that combat, in the absence of 

clear and convincing evidence to the contrary, and provided that the claimed 

stressor is consistent with the circumstances, conditions, or hardships of the 

veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 

38 CFR § 3.304(f)(1). 

It is quite evident that the provisions of the foregoing statute and regulation do 

not require validation by official military records of an in-service combat stressor. 

The law merely requires, absent ‘‘clear and convincing evidence to the contrary,’’ 

‘‘credible,’ satisfactory lay or other evidence’’ of an in-service stressor that is ‘‘consistent with the circumstances, conditions, or hardships of the veteran’s service.’’ 

Congress made clear its intent of not requiring such proof to be in the form of official military records when it stated, ‘‘notwithstanding the fact that there is no official record of such incurrence or aggravation in such service.’’ In cases of combatrelated PTSD, the incurrence of the disability is the actual exposure to the event; 

therefore, requiring proof through official records of the incurrence violates the law. 

Notwithstanding the plain language of the foregoing statute and regulation, the 

VA has circumvented the law by conducting improper rulemaking through its Office 

of General Counsel and its adjudication procedures manual, M21–1MR, by requiring 

the proof that a veteran engaged in combat as that shown through official military 

records, thus contradicting the intent of the statute. VA Office of General Counsel 

Opinion 12–99 reads in part: 

In order to determine whether VA is required to accept a particular veteran’s 

‘‘satisfactory lay or other evidence’’ as sufficient proof of service connection, an 

initial determination must be made as to whether the veteran ‘‘engaged in combat with the enemy.’’ That determination is not governed by the specific evidentiary standards and procedures in section 1154(b), which only apply once 

combat service has been established. 

VA Gen. Coun. Prec. 12–99 (Oct. 18, 1999). This General Counsel Opinion requires veterans to establish by official military records or decorations that they ‘‘personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.’’ Further, VA has promulgated internal 

instructions that arguably go beyond the General Counsel’s Opinion by instructing 

rating authorities as follows: 

Credible supporting evidence that an in-service stressor actually occurred includes not only evidence that specifically documents the veteran’s personal participation in the event, but evidence that indicates the veteran served in the immediate area and at the particular time in which the stressful event is alleged 

to have occurred, and supports the description of the event. 

M21–1MR, Part IV, Subpart ii, 1.D.13. 


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The M21–1 manual gives the following two ‘‘examples’’ to VA adjudicators considering whether a veteran has submitted sufficient evidence of an in-service combat 

stressor: ‘‘When considered as a whole, evidence consisting of a morning report, 

radio log, and nomination for a Bronze Star may be sufficient to corroborate a veteran’s account of an event, even if it does not specifically include mention of the veteran’s name.’’ The second example states: ‘‘Unit records documenting the veteran’s 

presence with a specific unit at the time mortar attacks occurred may be sufficient 

to corroborate a veteran’s statement that she/he experienced such attacks personally. These examples go beyond what is required by statute and regulation. By VA 

requiring official records to prove the ‘‘incurrence’’ of a disease or injury—the inservice stressor serving as the incurrence, or injury, in the case of PTSD—the VA 

has effectively read ‘‘satisfactory lay or other evidence’’ out of the law, thereby exceeding its authority. 

For decades, the VA has required such proof before recognizing a claimant as a 

‘‘combat veteran.’’ As a result, those who suffer a disease or injury resulting from 

combat are forced to provide evidence that may not exist or wait a year or more 

while the VA conducts research to determine whether a veteran’s unit engaged in 

combat. Many claims that satisfy the requirements of the statute are improperly denied. 

Chairman Hall, the DAV believes your bill would better deliver its intended effect 

if it amends title 38, United States Code, section 1154(b) to clarify when a veteran 

is considered to have engaged in combat for purposes of determining combat-veteran 

status. In the alternative, the Act could be amended to define under title 38, United 

States Code, section 1101, who is considered to have engaged in combat with the 

enemy. Such clarification would hopefully allow for utilization of nonofficial evidence—such as a veteran’s statement alone if the statement is ‘‘credible’’ and ‘‘consistent with the circumstances, conditions, or hardships’’ of the veteran’s service and 

is otherwise not contradicted by clear and convincing evidence—as proof of an inservice occurrence of a combat-related disease or injury, to include PTSD. 

This type of legislation would remove a barrier to the fair adjudication of claims 

for disabilities incurred or aggravated by military service in a combat zone. This legislation would follow the original intent of the law by requiring VA to accept as sufficient proof lay or other evidence that a veteran engaged in combat with the enemy 

as well as suffered a disease or injury as a result of that combat if consistent with 

that veteran’s service. 

Many veterans disabled by their service in Iraq and Afghanistan, and those who 

served in earlier conflicts are unable to benefit from liberalizing evidentiary requirements found in the current version of the applicable statute, section 1154; and regulation, section 3.304(f). This results because of difficulty, even impossibility, in proving personal participation in combat by official military documents. 

Oversight visits by Congressional staff to VA regional offices found claims denied 

under this policy because those who served in combat zones were not able to 

produce official military documentation of their personal participation in combat via 

engagement with the enemy in light of VA’s persistence to exceed statutory and regulatory requirements. The only possible resolution to this problem, without amending section 1154 or otherwise defining who is considered to have engaged in combat, 

is for the military to record the names and personal actions of every single soldier, 

sailor, airman, and Marine involved in every single event—large or small—that constitutes combat and/or engagement with the enemy on every battlefield. Such recordkeeping is impossible. 

Numerous veterans have been and continue to be harmed by this defect in the 

law. In numerous cases, extensive delays in claims processing occur while VA adjudicators attempt to obtain official military documents showing participation in combat: documents that may never be located. Notwithstanding the possible passage of 

this bill, without codifying who is considered to have engaged in combat, the VA will 

continue to apply criteria that unlawfully exceed regulatory and statutory authority. 

By doing so, this veteran-friendly bill will have no practical effect because VA will 

continue to deny claims of service connection for PTSD when veterans are unable 

to prove combat experience in accordance with VA’s stringent internal requirements. 

In regards to section 102 of the Act, the DAV fully supports an adjustment to the 

VA Rating Schedule that ensures parity with mental health disabilities and physical 

disabilities. The current disparity exists because of the Rating Schedule’s requirement that a veteran suffer from total occupational and social impairment prior to 

an award of a 100-percent disability rating. VA decision makers generally focus only 

on occupational skills when considering such ratings and therefore fail to consider 

all other aspects of life. This type of disparity can result in a veteran that is 100 

percent socially impaired, even to the point of being unable to maintain close family 

relations that results in an isolated life, being denied a total rating by VA because 


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1See M21–4, Ch. 3, § 3.02. 

the veteran may be able to earn a living from home. Any change to the Rating 

Schedule should definitely consider these disparities and seek to resolve them in 

favor of disabled veterans. 

There are various possible solutions to this problem. For example, if VA required 

total occupational impairment ‘‘or’’ (rather than ‘‘and’’) social impairment; or more 

preferably, ‘‘near’’ total occupational impairment ‘‘or’’ ‘‘near’’ total social impairment, 

then inequities between ratings for physical and mental disabilities would be resolved. 

Concerning the study required by this section, one that considers using codes in 

use by the medical and disability profession, we caution that ICD codes be carefully 

implemented. There are well over 10,000 of these types of medical codes, but just 

over 700 current VBA diagnostic codes. Therefore, a diagnostic code-ICD code cross 

reference would be a required tool in the simplification process of this type of transformation. 

As DAV has stated on the congressional record, we support the establishment of 

an advisory Committee as a first priority to begin oversight of any updates and/or 

adjustments to the Rating Schedule. The DAV requests that we be ensured easy access to the advisory Committee once formed. 

We currently fail to understand the significance between (c)(1), submission of a 

plan, and (c)(3)(A), report on plan. These requirements appear redundant; we are 

therefore requesting clarification. On this note, we also fail to understand the need 

for the additional studies and reports requested of this portion of the Act. The VA 

is currently in the process of conducting various studies recommended by recent 

commissions, such as a quality of life study to include updates to the Rating Schedule. It may be more prudent to review the results of these studies before implementing additional and overlapping studies. There is also the likely chance that the 

current ongoing studies will be completed by the time this Act moves far enough 

through the legislative process to become law. 

Finally, we have reservations with section (b)(2)(B), which requires a study on the 

‘‘nature of the disabilities for which compensation is payable under laws other than 

laws administered by the Secretary.’’ This provision appears, at least on its face, to 

compare service-connected disability compensation to private disability programs, 

i.e., workman’s compensation. Disabilities incurred on the battlefield or during military training are not tantamount to the typical on-the-factory-job repetitive motion 

injury. Nonetheless, some disabilities acquired as a result of military service will 

have overlapping symptoms of disability caused by civilian occupations. The VA, 

however, provides a set of benefits that are uniquely pro-claimant and veteranfriendly—benefits provided by a Nation grateful to those that stand up to defend 

it. These benefits should not be comparable to workman’s compensation or Social 

Security. 

Section 103 of the Act focuses on the VA’s work credit system and section 104 

requires a study on the work management system. The DAV has long advocated for 

a more stringent system of accountability. We therefore do not oppose the purpose 

behind these sections of the bill. However, we feel that any improvements in the 

work credit system, aimed at increasing accuracy and accountability, will be less 

than effective if equal or coinciding changes are not made in VA’s quality assurance 

practices in conjunction with those of the work credit system. With careful and wellplanned changes, the VA’s quality assurance system, the Systematic Technical Accuracy Review (STAR) program, can serve its purpose of overseeing accuracy much 

more effectively and simultaneously serve as a tool to implement an accountability 

program. 

In the STAR program, a sample is drawn each month from a regional office workload divided between rating, authorization, and fiduciary end products. For example, 

a monthly sample of ‘‘rating’’ related cases generally requires a STAR review of ‘‘10’’ 

rating-related end products.1 Reviewing 10 rating related end products per month 

does not amount even to a tenth of 1 percent of the rating decisions produced in 

many average-sized regional offices. This should serve as an example of the lack of 

importance placed on accuracy. For this reason, DAV fully supports the intent of 

the legislation at hand. 

As for the issue of suspending the award of work credits if VA fails to implement 

a new system, this may be unfeasible. Suspending work credit fails to consider the 

reality of how multifaceted the VA’s benefits delivery system has become, particularly when considering the various types of claims a beneficiary may file, the various stages of development and decisionmaking within each claim, and the potential 

changes that can occur at any particular stage of the claim. Suspending work credit 

may render the VA unable to account for accuracy at every stage in the process, 


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2M21–4, App. A, Glossary of Terms and Definitions. Manpower Control and Utilization in Adjudication Divisions (Pending End Product: ‘‘A claim or issue on which final action has not been 

completed. The classification code identified refers to the end product work unit to be recorded 

when final disposition action has been taken.’’). 

particularly those non-rating actions performed by claims developers, adjudicators, 

authorizers, etc, whose work credit is fixed to the claim but not necessarily to the 

rating decision. 

Currently, VA utilizes over 50 pending end-product codes 2 for a multitude of actions. The number of end-product codes may be further expanded by using ‘‘modifiers’’ that designate specific ‘‘issues’’ for types of claims within a certain broader 

category. The VA’s end product codes are used in conjunction with its productivity 

and work measurement system. The productivity system is the basic system of work 

measurement used by Compensation and Pension (C&P) Service, but it is also used 

for report and tracking. Additionally, VA’s end-product codes are also utilized in the 

STAR program. This further supports the notion that these two systems should be 

improved simultaneously in order for any improvements to be effective. 

The program is also used for quantitative measurement, a tool utilized in preparing budget forecasts and in distributing available staffing. Quantitative and productivity measurement are also tools used in comparing and tracking employment 

of resources. Both productivity measurement and work measurement are tools available to management for this purpose. Quantitative measurement also allows Central 

Office and Area Offices to compare stations and to track both local and national 

trends. Productivity measurement and work measurement are complementary 

measurement systems that each depend, in part, on VA’s end product code system. 

The end-product code system is further used in determining work credit provided 

to VA’s employees. The work credit function of these programs would have to be disconnected, if possible, from the remaining function of the programs; or else, the VA 

would lose the ability to manage and track its day-to-day functions. 

Based on the foregoing, we feel the legislation as written, does not take into account the significant interplay between VA’s work credit system, which utilizes completion of pending end-product codes, and the foregoing measurement systems and 

STAR program, which also utilize completion of pending end product codes. Nonetheless, because of the positive intent of this legislation, the DAV would welcome 

the opportunity to discuss this issue in more depth. We would look forward to working hand-in-hand with Congress, as well as any necessary VA officials, in order to 

help achieve an outcome that satisfies the intent of Congress, improves the lives of 

disabled veterans, and assists VA in the success of each. 

Section 105 of the Act would create a required certification for employees of the 

Veterans Benefits Administration (VBA) responsible for processing claims. We have 

long-advocated for better training in VBA and therefore fully support this portion 

of the bill. The DAV has maintained the preeminent training program throughout 

the VSO community for many years; of which, many other organizations have adopted. Training is tied directly to quality—the DAV would welcome the opportunity to 

assist the VA in developing such a program. 

Section 106 requires an assessment of VA’s quality assurance program. For this 

section, please refer to our discussion on sections 103 and 104 of the Act. 

Section 107 of the Act expands authorization for developing, submitting, and certifying a claim as fully developed. The DAV understands the need for novel initiatives 

that have the possibility of assisting VA with, or providing VA with the tools for, 

expediting the claims process. Nonetheless, we have concern as to whether this is 

the correct tool. 

The reality of claims development is that the vast majority of claims submitted, 

with the potential exception of claims for discharging servicemembers, requires access to internal and external developmental tools. Some of these tools include access 

to, and authorization to use intra and inter agency communication platforms that 

are necessary to request records from sources such as the Social Security Administration, Department of Defense, and the Veterans Health Administration. Currently, 

veterans service organization representatives, whether local, state, or national do 

not have access to these systems because limitations based on representation (power 

of attorney) are not built into the software. 

However, what is more concerning to us than technological and logistical limitations is the proper training required to thoroughly understand what constitutes a 

fully developed claim. VA adjudicators are usually well versed in the particular and 

varied details surrounding claims development, but only after extensive on-the-job 

experience. Nonetheless, the majority of appealed cases remanded by the Board of 

Veterans’ Appeals (‘‘BVA’’ or ‘‘Board’’) are because of errors committed by VA in its 

duty to assist claimants in the development of their cases. 


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We fear that this remand rate would increase with the addition of potentially unqualified individuals to the claims development arena. This is not to indicate that 

we are absolutely opposed to any plan that would allow personnel other than VA 

employees to assist in the development of claims, but only to express our concerns 

regarding the current barriers to success of such an idea. 

Section 108 of the Act requires a study and/or report on employing medical professionals to assist VBA. Based on our comprehensive experience in the claims process, 

one that dates back to a time when the VBA and the BVA employed medical professionals in the claims process, the DAV must oppose this section of the bill. 

The many complications involved in the claims process do not include VA decisionmakers facing many challenges interpreting the medical data involved in the decisionmaking process. The biggest challenges facing VA decisionmakers result from 

inadequate legal training, not inadequate medical training. Misunderstandings of 

law account for far more errors than do misunderstandings of medicine. 

Additionally, integrating the medical and legal segments of the claims process will 

ultimately ensure the disappearance of any distinction between the two. Medical 

professionals are not legal professionals and therefore should be restricted to and 

held accountable for accurately reporting medical facts. 

Section 109 codifies the use of pre-stabilization ratings. The DAV does not oppose 

codification of pre-stabilization benefits. However, Congress should include provisions for extending such ratings when a veteran is not shown to have stabilized 

within the specified time. 

Section 110 concerns the use of information technology at VBA. A reasonable approach would be to enact legislation that requires VA to submit to Congress a broad 

and over-arching plan by a reasonable date outlining the technology identified and 

the manner in which such technology would be utilized. Once this plan is complete, 

the groundwork will be laid for VA to coordinate with various entities, i.e., Congress, Veterans Service Organizations, Department of Defense, etc., in order to 

begin turning the plan into reality on a larger scale. The DAV would welcome the 

opportunity to work with the Agency, to include any contractors, in order to assist 

in the development of an electronic claims process system. 

The goal of any form of electronic claims process should be to automate, and 

thereby shorten as much as possible those portions of the claims process that currently consume the majority of time. Expecting a form of technology to imitate intelligent human behavior with respect to the decisionmaking process of VA’s benefits 

delivery system, particularly where evidence weighing and judgment calls on such 

evidence are required, appears as an untenable goal—automation rather than 

human imitation is the first logical phase of this undertaking. 

Contrary to some beliefs, the majority of time spent by VA on disability claims 

is in preparing the case for a decision. This includes receiving the claims by VA, 

establishing the claim in VA’s current computer systems, and developing the evidence to support the claim. Evidence development, whether in the form of gathering 

military records from the service department or the Records Processing Center, private health records, VA health records, VA or private medical opinions, and stressor 

verification through the U.S. Army and Joint Services Records Research Center consumes the vast majority of the claims-processing time. Therefore, any viable electronic claims-processing system implemented with real expectations of shortening 

the claims process must focus on all VA functions and development leading up to 

the rating decision more so than just the rating decision itself. 

The DAV supports the provisions of section 111 that pertain to the management 

of claims for accrued benefits upon the death of a claimant. We do not, however, 

support the portion stating that the substituted party may designate the person who 

receives benefits if such party does not want to be a claimant. The codification 

should merely follow the regulation. 

Section 201 creates a single joint VA and Department of Defense disability examinations process. The DAV supports this provision, for which a pilot program is currently being conducted. 

Section 301 increases reporting requirements of the United States Court of Appeals for Veterans Claims (Court), and section 302 modifies the jurisdiction of the 

Court. Each of the forgoing provisions is nearly mirrored in the Independent Veterans Service Organizations, Independent Budget for FY 2009. We strongly support 

each and commend Chairman Hall for their recommendation. 

f 


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Prepared Statement of Ronald B. Abrams 

Joint Executive Director, National Veterans Legal Services Program 

Mr. Chairman and Members of the Committee: 

I am pleased to have the opportunity to submit this testimony on behalf of the 

National Veterans Legal Services Program (NVLSP). NVLSP is a nonprofit veterans 

service organization founded in 1980 that has been assisting veterans and their advocates for 27 years. We publish numerous advocacy materials, recruit and train 

volunteer attorneys, train service officers from such veterans service organizations 

as The American Legion and Military Order of the Purple Heart in veterans benefits 

law, and conduct quality reviews of the VA regional offices on behalf of The American Legion. NVLSP also represents veterans and their families on claims for veterans benefits before VA, the U.S. Court of Appeals for Veterans Claims (CAVC), 

and other Federal courts. Since its founding, NVLSP has represented over 1,000 

claimants before the Board of Veterans’ Appeals and the Court of Appeals for Veterans Claims (CAVC). NVLSP is one of the four veterans service organizations that 

comprise the Veterans Consortium Pro Bono Program, which recruits and trains volunteer lawyers to represent veterans who have appealed a Board of Veterans’ Appeals decision to the CAVC without a representative. In addition to its activities 

with the Pro Bono Program, NVLSP has trained thousands of veterans service officers and lawyers in veterans benefits law, and has written educational publications 

that thousands of veterans advocates regularly use as practice tools to assist them 

in their representation of VA claimants. 

TITLE I: Modernizing The VA Claims Adjudication System 

Section 101. Presumption of service-connection for veterans who were deployed in support of contingency operation with post traumatic stress 

disorder 

Section 101 would establish a presumption of service connection for veterans who 

were deployed in support of a contingency operation who now suffer from post traumatic stress disorder (PTSD). Proposed subsection (d), which would be added to 38 

U.S.C. § 1112, states: 

For the purposes of section 1110 of this title, and subject to the provisions 

of section 1113 of this title, in the case of any veteran who engaged in combat 

with the enemy in active service with a military, naval, or air organization of 

the United States during a period of war, campaign, or expedition, and who is 

diagnosed with post traumatic stress disorder, such disorder shall be considered 

to have been incurred in or aggravated by such service, notwithstanding there 

is no record of evidence of such disorder during the period of service.’’ 

In essence, section 101 would permit veterans who have been diagnosed with 

PTSD to obtain service connection if they can prove that they engaged in combat 

with the enemy. It is NVLSP’s experience that veterans who can prove that they 

engaged in combat with the enemy have much less trouble establishing service connection for PTSD than veterans who cannot prove they engaged in combat with the 

enemy. See 38 U.S.C. § 1154(b), and 38 CFR § 3.304(f). Therefore, although well intentioned, proposed section 101 would have very limited positive impact. 

In Iraq and Afghanistan there really is no specific front or rear area. No service 

Member is really safe in either place and just about everyone is subject to enemy 

attacks and exposure to events that threaten their physical safety or the physical 

safety of others. Therefore, NVLSP suggests that section 101 be redrafted to establish a presumption of service connection for PTSD if the veteran served on active 

duty in Iraq or Afghanistan and currently suffers from PTSD, unless there is clear 

and convincing evidence that the veteran’s PTSD is caused by a stressful event that 

did not occur during a period of military service, notwithstanding the fact that there 

is no record of evidence of such disorder during service. NVLSP also suggests that 

this same presumption extend to veterans who did not serve in Iraq and Afghanistan, but did serve in a combat zone during active duty. Please note that under 

NVLSP’s proposals, to be entitled to service connection for PTSD, these veterans 

would still have to be diagnosed with PTSD and the mental health expert would 

still have to link the current condition to an in-service stressor. 

It is the experience of NVLSP that the VA spends a great amount of time trying 

to verify alleged stressors that sometimes are impossible to confirm. If the law were 

changed to acknowledge that service in Iraq and Afghanistan and service in a combat zone constituted a stressor for PTSD purposes, veterans who claim service connection for PTSD would have a much easier time obtaining their rightfully earned 

benefits and the VA would not have to spend so much time developing claims for 

PTSD. 


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Section 103. Study on Work Credit System of Veterans Benefits Administration 

Section 103 requires the VA to conduct a study of the work credit system of the 

Veterans Benefits Administration (VBA). VBA uses this system to measure the work 

production of employees of the Veterans Benefits Administration. NVLSP believes 

that this study is long overdue. NVLSP supports this study and suggests that the 

study be performed by the Government Accounting Office (GAO) not the VA. Having 

the VA study the impact of its work measurement system is like having the fox 

evaluate the effectiveness of henhouse security. 

As NVLSP has previously stated, the current VA work credit system prevents the 

fair adjudication of many claims for VA benefits. The current VA work credit system 

needs to be overhauled because the current system rewards VA managers and adjudicators who claim multiple and quick work credit by not complying with the statutory duties to assist claimants obtain evidence that would substantiate their claims 

and notify claimants of what evidence would substantiate their claims. 

No matter how much the average VA employee tries to help the claimant population, the VA decisionmaking culture, created by the VA work measurement system, prevents many VA adjudicators from doing a good job. The VA has created a 

work measurement system for deciding critically important claims that is driven by 

weighty incentives to decide claims quickly. How the VA measures its work and 

evaluates the performance of its employees has had a major impact on the adjudication of claims for veterans benefits. 

Each year, after a complicated process involving the executive branch and Congress, the VA is given its budget. The budget can be defined as the resources available to the Secretary of Veterans Affairs to be used to accomplish the mission of 

the VA. Managers at different levels within the VA are then given their allocation 

from the overall VA budget. This allocation is determined by the workload and performance of the various VA components. For example, the money budgeted to a 

VARO determines how many workers can be hired or fired, how equipment is maintained, and what new equipment can be purchased. 

Claims received in VARO are described as ‘‘pending issues.’’ These claims are assigned an ‘‘end product code,’’ alternatively described by the VA as a unit of work. 

When final action is taken on a pending claim, or pending issue, the regional office 

(and eventually the VA) receives a credit. 

End products are assigned values based on the average number of work hours it 

takes an employee or group of employees to complete all action necessary for that 

type of claim. Each end product code has a different value. For example, VA managers receive more credit for work completed on an original claim than they do for 

adjusting the income of a current pension beneficiary. No matter how much work 

the VARO does on an individual claim, however, it receives as credit only the value 

that is provided for the end product code assigned to that particular type of pending 

claim. Therefore, VA managers receive the same credit whether or not the claim is 

granted or denied or whether the claim takes the VARO 1 day or 2 years to decide. 

VA manuals describe the end product system as a ‘‘management tool’’ and indicate 

that its measure should not be used to evaluate individual performance. As is the 

case with many management information systems, however, the measurement system tends to drive what and whom it measures, rather than the converse. VA managers are evaluated by how many end products they produce, how quickly they can 

take credit for end products, how many employees they need to produce these end 

products, and last, the quality of the work in the office they manage. Because it is 

in the best interest of the VA managers to complete as many cases as quickly as 

they can, the interests of VA managers in many cases stands in opposition to the 

interests of claimants for VA benefits. 

Responsibilities of VA managers that protect the fairness of the adjudicatory process—such as ‘‘control’’ of claims, supervisory review of unnecessarily delayed claims, 

thorough development of the evidence needed to decide a claim properly, recognition 

of all of the issues involved, provision of adequate notice, documentation that notice 

was given, and careful quality review—all adversely affect the productivity and 

timeliness statistics (that is, how many decisions on claims are made final within 

a particular period of time) for the VA manager. Consequently, proper attention by 

VA managers to their legal obligations very often adversely affects the statistics 

upon which their performance is rated. 

Fixing the VA work credit system is a topic that is near and dear to my heart. 

I have been involved in various aspects of veterans law for over 30 years. My experience tells me that unless the system is corrected most attempts to improve VA 

claims adjudication will not be successful because the driving force in VA adjudication will not be fair and accurate adjudications—but—the need to claim quick work 

credit. 


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Section 104. Study on Work Management System 

Section 104 requires the VA to conduct a study of the VA work management system. NVLSP supports this study. 

According to the VA Monday Morning Workload reports, in early January 2006 

there were 532,228 total claims pending adjudication at the VA regional offices 

(VAROs). In early January 2007 there were 603,104 total claims pending adjudication at the VA regional offices (ROs). In early January 2008 there were 647,478 

total claims pending adjudication at the VA regional offices (ROs). These VA statistics reveal that the VA admits that there are now 115,250 more claims pending adjudication at the ROs in 2008 than there were in 2006. This is an increase of over 

21 percent in just 2 years. 

If this trend continues the VAROs will have over 947,000 backlogged claims in 

just 4 years. NVLSP believes that the current size of the backlog is obviously unacceptable and allowing that unacceptable number to grow by 200,000 cases in just 

4 years would be insulting to veterans. 

Why Is There Such A Large Backlog 

In the opinion of NVLSP, the major cause of the VA claims adjudication backlog 

is a VA work credit system that prevents the fair adjudication of many claims for 

VA benefits generating extra work for the VA and major problem for claimants. 

Also, the inadequate quality of many VA adjudications and the inadequate number 

of trained adjudicators contribute to the size of the backlog. 

The Impact of Judicial Review 

The VA claims processing (or claims adjudication) system has been exposed by judicial review. To say there is a crisis in VA claims adjudication is an understatement. Statistics from the Board of Veterans’ Appeals (BVA) and the U.S. Court of 

Appeals for Veterans Claims (CAVC) show that nationally, for FY 2007, over 56 percent of all appeals decided by the BVA were reversed or remanded and over 63 percent of CAVC decisions on the merits were reversed, or remanded. In fact, some 

VAROs were even worse than the national average. Over 60 percent of the appeals 

from the New York RO and over 62 percent of the appeals from the St. Petersburg 

Florida RO were reversed or remanded by the BVA. 

Based on the experience of NVLSP (over 10 years of quality reviews, in conjunction with The American Legion, of approximately 40 different VAROs combined with 

extensive NVLSP representation before the CAVC), most of the most egregious VA 

errors are a result of premature adjudications. For example, many errors identified 

by the Legion/NVLSP quality review teams reveal that VA adjudicators failed to 

even try to obtain evidence that could substantiate the claim, and incorrectly accepted and prematurely denied claims based on inadequate evidence (especially inadequate VA medical examinations). 

Most premature VA adjudications are caused by ROs seeking work credit. If the 

claimant should appeal, the RO can earn another work credit for work to process 

the appeal. The VA manager gets to claim three unearned work credits and to show 

an erroneously low time period to adjudicate these claims. That would help the 

manager earn a promotion and a bonus for such ‘‘productive’’ work. NVLSP has 

been repeatedly informed by a variety of current and past VARO officials that because of pressure to produce end products and reduce backlogs, they intentionally 

encourage the premature adjudication of claims. This statement is also based on my 

experience as a VA employee, and based on my experience as a member of the Legion/NVLSP quality review team. 

Section 107. Expedited Treatment of Fully-Developed Claims and Requirement for Checklist to be provided to Individuals Submitting Incomplete 

Claims 

Although NVLSP generally supports expediting VA decisionmaking, NVLSP opposes section 107, as written. It creates an alluring, but treacherous trap for the 

hundreds of thousands of VA claimants who have not mastered veterans benefits 

law and the evidence that is in their VA claims files. It is very rare that a VA claimant will know enough about the law, the evidence that is already in his or her VA 

claims file, and the evidence that is not already in the VA claims file but is possessed by VA Medical Centers, other federal agencies like the Social Security Administration, and private physicians, to be able to state in a knowing and intelligent 

way that ‘‘no additional information is available or needs to be submitted.’’ 

This is true even if VA provides the claimant in advance with the checklist contemplated by section 107. The VA currently provides boilerplate notice under section 

5103(a) of Title 38 of the information and evidence that a claimant needs to submit 

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ing it to tailor section 5103(a) to the individual circumstances of the claimant’s case, 

as Congress intended. Moreover, the boilerplate notice is often inaccurate, missing 

important information, and confusing to most VA claimants given the complexity of 

veterans benefits law. As worded, VA would plainly interpret the checklist provision 

in section 107 to allow it to use similar, confusing boilerplate language that is not 

tailored to the circumstances of the individual’s case and does not take into account 

the impact of the evidence already in the VA claims file and what particular evidence is lacking that would be necessary to submit to support an award of benefits. 

But section 107 would certainly prove attractive to most VA claimants. The allure 

of a guarantee that the claim will be decided in 90 days will likely influence many 

unwary claimants to make an unknowledgeable statement that ‘‘no additional information is available or needs to be submitted’’ in exchange for a quick decision. The 

future consequences of making this statement is not, but should be addressed in section 107. What happens if the expedited claim is denied? Does the statement that 

‘‘no additional information is available or needs to be submitted’’ waive the claimant’s right to later complain that VA did not, but should have obtained additional 

information? Does the claimant have a right later to submit additional evidence if 

it turns out the claimant was wrong to state that ‘‘no additional information is 

available or needs to be submitted.’’ Is VA required to comply with current sections 

5103 and 5103A of Title 38 before the expedited claim is decided. Is VA required 

to comply with these current provisions after the expedited claim is denied. All of 

these questions would need to be answered in a satisfactory manner before NVLSP 

could support section 107. 

Section 108. Study and Report on Employing Medical Professionals to assist Employees of Veterans Benefits Administration 

NVLSP supports hiring medical professionals to advise VBA employees. We are 

also pleased that the legislation specifically states that these medical professionals 

shall not be employed to rate claims. NVLSP suggests that language be inserted 

into this section that requires these medical professionals to respond only to written 

questions with a written response that must be placed in the claims file. Without 

a paper trail, it would be far too easy for the medical professionals working with 

lay adjudicators to dominate the claims adjudication process. 

Section 109. Assignment of Temporary Disability Ratings to Qualifying Veterans 

The proposed statute closely follows 38 CFR § 4.28 (2008). This regulation currently provides that a veteran may be assigned a 100 percent rating if he or she 

suffers from an unstabilized condition that was incurred in service resulting in severe disability that makes substantially gainful employment not feasible or advisable. The 50 percent prestabilization rating is appropriate for an unstabilized condition manifested by [u]nhealed or incompletely healed wounds or injuries where material impairment of employability [is] likely. 

NVLSP supports the proposed statute but suggests that language be inserted that 

makes it clear that veterans who suffer from mental conditions are eligible for temporary disability ratings. Also, we note with approval that the statute provides the 

VA the authority to extend, if appropriate, the temporary rating beyond the termination date and that the VA is required to review all pending claims to determine 

whether the claimant is entitled to a temporary rating. 

Section 111. Treatment of Claims Upon Death of Claimant 

NVLSP strongly supports section 111, but believes certain changes should be 

made to the statutory language. First, the third line of new section 5121A should 

be amended to add more precision; this section should cover cases awaiting decision 

by a VA regional office, the Board of Veterans’ Appeals, the U.S. Court of Appeals 

for Veterans Claims, or other reviewing court. Second, the phrase ‘‘processing the 

claim’’ (used twice in the section) should be amended to read ‘‘processing the claim 

or appeal.’’ 

TITLE II 

Section 201. Creation of Single Joint Department of Veterans Affairs and 

Department of Defense Disability Examination Process 

NVLSP strongly supports what appears to be the ultimate goal underlying Title 

II of the proposed bill. A large number of military personnel are medically discharged each year as a result of a determination by a military Physical Evaluation 

Board (PEB) that the individual is unfit for continued military service due to certain 

physical or mental disabilities. But as described briefly below, the Federal GovernVerDate Aug 31 2005 05:57 Dec 23, 2008 Jkt 043047 PO 00000 Frm 00059 Fmt 6604 Sfmt 6621 E:\HR\OC\43047.XXX 43047

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ment has for decades used a wasteful, redundant, and unfair system for evaluating 

the degree of disability of these physical and mental disorders. 

Under current law, the PEB determines the degree of disability of those disabilities that are found by the PEB to render the individual unfit for continued military 

service. The PEB uses the VA disability rating schedule to rate the degree of disability. If the PEB disability rating determinations is 20 percent or below, the veteran will receive a lump-sum military disability separation payment. On the other 

hand, if the PEB disability rating determination is 30 percent or above, the veteran 

will receive monthly military disability retirement payments for the rest of the veteran’s life and the veteran and his or her spouse will be entitled for the rest of their 

lives to free military medical care. The PEBs have long been notorious for unfairly 

assigning disability ratings that are lower than the degree of disability ratings the 

VA would assign for the same condition with the end result that the individual is 

barred from military disability retirement payments and free military medical care. 

The bill wisely removes the PEBs from the degree of disability determination 

process and relies exclusively on the VA for this determination. This removes redundant and often inconsistent degree of disability determinations. 

But the devil is in the details. The bill unwisely leaves all the details completely 

within the unbridled discretion of the Secretary of Veterans Affairs and the Secretary of Defense without even an opportunity for public participation or judicial review. NVLSP strongly recommends that the bill be amended to mandate that: 

• VA shall, using the VA disability rating schedule, rate the degree of disability 

of both those disabilities found by a PEB to be unfitting and those other disabilities from which the individual suffers that were not found by the PEB to be 

unfitting; 

• Any determinations made by VA that the disability existed prior to service or 

the result of willful misconduct shall be governed by title 38, U.S.C. and CFR; 

• The initial VA degree of disability determinations shall be subject to appeal 

with VA under the provisions of title 38, U.S.C. and CFR, so that the veteran 

has a right to submit additional evidence, to a hearing, and to representation 

by an advocate. Final VA determinations on the veteran’s degree of disability 

as of the date of discharge from military service shall be binding on the military 

department for purposes of determining entitlement to military disability separation pay, military disability retirement payments and free military medical 

care and shall be binding on the VA for purposes of VA service-connected disability compensation; 

• If the veteran appeals the initial VA degree of disability determination and the 

appeal results in a change, the VA will promptly notify the military department 

of the change and the military department will promptly correct the veteran’s 

military records to be consistent with the change; 

• Before implementing the joint disability examination and determination process 

called for in the bill, the Secretaries of Veterans Affairs and Defense shall conduct a public rulemaking proceeding according to the provisions of section 553 

of title 5, U.S.C., so that the public has advance notice of the proposal, and an 

opportunity to comment, and so that the Secretaries are required to consider 

public comment before issuance of final rules; and 

• The final rules promulgated pursuant to the public notice and comment rulemaking proceeding shall be subject to judicial review in a U.S. district court 

under the provisions of the Administrative Procedure Act, 5 U.S.C. §§ 551, et 

seq. 

Also, NVLSP supports sections 102, 104, 105, 106, 110, 301, and 302 of this bill. 

Thank you for allowing NVLSP to present comments concerning these very important issues. 

f 

Prepared Statement of Steve Smithson 

Deputy Director, Veterans Affairs and Rehabilitation 

Commission, American Legion 

Mr. Chairman and Members of the Subcommittee: 

Thank you for this opportunity to present The American Legion’s views on this 

draft bill being considered by the Subcommittee today. The American Legion commends the Subcommittee for holding a hearing to discuss this extensive draft bill. 


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Section 101. Presumption of service-connection for veterans who were deployed in support of contingency operation with post traumatic stress 

disorder 

There are three requirements that must be established in order to establish entitlement to service connection for post traumatic stress disorder (PTSD): (1) A current diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service 

stressor actually occurred; and (3) medical evidence of a causal nexus between the 

current symptomatology and the claimed in-service stressor. 

According to 38 CFR § 3.304(f)(1): 

If the evidence establishes that the veteran engaged in combat with the 

enemy and the claimed stressor is related to that combat, in the absence of 

clear and convincing evidence to the contrary, and provided that the claimed 

stressor is consistent with the circumstances, conditions, or hardships of the 

veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 

Unless the veteran was wounded or received a specific combat decoration or badge 

(such as the Combat Infantryman Badge or Combat Action Ribbon) or award for 

valor, it is often very difficult to establish that a veteran engaged in combat with 

the enemy in order to verify the claimed combat-related stressor. This is especially 

true of service in the combat theaters of Iraq and Afghanistan. Due to the fluidity 

of the battlefield and the nature of the enemy’s tactics, there is no defined frontline 

or rear (safe) area. Servicemembers in non-combat occupations and support roles are 

subjected to enemy attacks such as mortar fire, sniper fire, and improvised explosive 

devices (IEDs) just as their counterparts in combat arms-related occupational fields. 

Unfortunately, such incidents are rarely documented making them extremely difficult to verify. Servicemembers who received a combat-related badge or award for 

valor automatically trigger the combat-related presumptions of 38 U.S.C. § 1154(b) 

and 38 CFR § 3.304(f)(1), but a clerk riding in a humvee, who witnesses the carnage 

of an IED attack on his convoy, doesn’t automatically trigger such a presumption 

and proving that the incident happened or that he or she was involved in the incident, in order to verify a stressor in relation to a PTSD claim, can be extremely time 

consuming and difficult. Moreover, such claims are often denied due to the veteran’s 

inability to verify the alleged combat-related incident (stressor) to the satisfaction 

of the Department of Veterans Affairs (VA). 

For the reasons and examples discussed above, The American Legion supports the 

establishment of a presumption of stressor, for the purpose of establishing entitlement to service connection for PTSD, for any veteran who served in Operations Iraqi 

Freedom (OIF) and Enduring Freedom (OEF) as long as the alleged stressor is related to enemy action and is consistent with the circumstances, conditions, or hardships of such service. Such a presumption would not automatically presume service 

connection for PTSD, but would presume the alleged stressor occurred as long as 

the stressor is related to enemy action or the result of enemy activities and is consistent with the circumstances and conditions of service in Iraq or Afghanistan. As 

verifying the alleged stressor is often the most time and labor intensive requirement 

to satisfy in a PTSD claim, such a presumption would not only benefit the veteran, 

it would also benefit VA by negating extensive development, and in some cases overdevelopment, of the stressor portion of a PTSD claim and, in doing so, reduce the 

length of time it takes to adjudicate such claims. 

Section 102. Readjustment of Schedule for Rating Disabilities 

The American Legion is generally supportive of this section and we are pleased 

with the portion specifically prohibiting the lowering of the rating of a particular 

disability under the readjusted schedule in comparison to how it was rated under 

the rating schedule in effect on the date of the enactment of the Act. The American 

Legion also supports the provision of this section establishing an advisory Committee to the Secretary of disability compensation. We do, however, note that the 

rating schedule is not the major cause of problems with the VA disability compensation process. Inadequate staffing, inadequate funding, ineffective quality assurance, 

premature adjudications, and inadequate training still plague the VA regional offices and must be satisfactorily resolved otherwise any positive benefit anticipated 

from the implementation of this provision will surely be minimized. 

Section 103. Study on Work Credit System of Veterans Benefits Administration 

The American Legion fully supports this provision. We have long been a vocal 

critic of the Veterans Benefits Administration’s (VBA’s) current end product work 

credit system and we have addressed our concerns in testimony before this Subcommittee on several occasions. We have also been advised that the portion of this 


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section pertaining to suspension of award of work credits will be changed to call for 

suspension of issuance of work credits, only if VA does not devise and implement 

a new system of measuring work production that differs from the current system. 

It currently states that VA will suspend its work credit system until a new system 

is implemented. The American Legion supports this anticipated change. We also recommend that the study addressed in this section be performed by an agency such 

as the Government Accountability Office (GAO), which is not invested in the current 

flawed VBA work credit system. 

Section 104. Study on Work Management System 

The American Legion supports the provisions of this section. 

Section 105. Certification of Employees of Veterans Benefits Administration 

Responsible for Processing Claims 

The American Legion supports this section. As discussed previously in The American Legion’s testimony before this Subcommittee, VA has developed and implemented a job skill certification test for veteran service representatives (VSRs). Unfortunately, the current test for VSRs is not mandatory as a condition of employment in that position and is completely optional. Moreover, it is our understanding 

that VA did not conduct any tests in 2007. 

The ultimate goal of certification or competency testing should be to ensure that 

an individual in any given position is competent, proficient, and otherwise qualified 

to perform the duties required of that position. This goal will not be achieved if testing is not mandatory, or is not provided for all levels or for all positions, and remedial training or other corrective action is not required for those who do not successfully pass the test. We, therefore, recommend adding language to this section specifically mandating an improvement plan for those who do not pass the examination, 

including eventual termination, if necessary. 

Section 106. Annual Assessment of Quality Assurance Program 

The American Legion supports the provisions of this section requiring VA to contract with a private entity to conduct annual assessments of its quality assurance 

program. Receiving input on VA’s performance assessment programs from an independent entity would undoubtedly provide new insight on how to enhance the current processes. Additionally, The American Legion continues to share the results of 

regional office quality review visits (approximately 40 to date) with both VA and 

Congress. Our quality reviews identified many of the problems that this draft legislation attempts to cure and The American Legion commends the Subcommittee for 

its efforts to improve VA adjudications. 

Section 107. Expedited Treatment of Fully Developed Claims and Requirement for Checklist to be provided to Individuals Submitting Incomplete 

Claims 

The American Legion supports the intent of this section but recommends adding 

the following language: 

Nothing in this section would excuse VA from its duty to assist or its duty to notify if the claim is appealed (see 38 U.S.C. §§ 5103 and 5103A). 

Section 108. Study and Report on Employing Medical Professionals to assist Employees of Veterans Benefits Administration 

The American Legion is not opposed to the intent of this section which calls for 

a study to determine the need of VBA hiring medical professionals, including those 

who are not physicians, to act as medical reference or consultants to assist VBA employees with the assessment of medical evidence. We are also pleased that this section specifically states that such medical professionals are not to ‘‘be employed to 

rate any disability or evaluate any claim.’’ We do, however, recommend that additional language be included specifically prohibiting VA adjudicators from relying on 

regional office medical consultants’ opinions to make decisions in claims for benefits. 

We oppose this because it would be far too easy for the cadre of medical professionals to dominate the adjudication process. 

Section 109. Assignment of Temporary Disability Ratings to Qualifying Veterans 

This proposed section closely tracks the current regulation 38 CFR 4.28. The 

American Legion recommends that this section make it clear that mental conditions 

qualify for prestabilization or temporary ratings. 


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Section 110. Review and Enhancement of use of Information Technology at 

Veterans Benefits Administration 

The American Legion welcomes innovative ideas, such as electronic claims processing and other uses of technology, which will enable VA to improve the service 

it provides to this Nation’s veterans, especially in the arena of benefits delivery. We 

must, however, caution that automation does not guarantee quality claim development and speed does not guarantee accuracy or quality of data entry. Moreover, although the use of such technology might improve the process, it is not a magic bullet that will fix all the problems that are currently plaguing VA’s disability claims 

process. 

Areas such as inadequate staffing levels, training, quality assurance, accountability, premature adjudication of claims and other problems resulting from VA’s 

current work measurement system, as previously addressed by The American Legion in testimony before the Subcommittee, must be adequately dealt with before 

any real improvement resulting from use of artificial intelligence can be realized. 

Therefore, artificial intelligence-based programs that direct the development and the 

adjudication of claims should be published in the Federal Register so that the public, especially stakeholders such as The American Legion, can provide written comments. 

The American Legion believes that the human element should never be removed 

from this equation and we are pleased that various experts that testified before the 

Subcommittee on the use of artificial intelligence in claims processing also agreed 

with this philosophy. Additionally, it must also be kept in mind that the bulk of the 

time and effort expended by VA in the disability claims process is not in the actual 

adjudication or decisionmaking part of the process, rather it is the part of the process that involves the development of the claim prior to adjudication. This process 

involves informing the claimant of the evidence that is needed to substantiate the 

claims as well as assisting the claimant in obtaining the needed evidence, such as 

military personnel and medical records, relevant medical evidence (both private and 

VA), scheduling compensation and pension examinations and other efforts necessary 

before the claim is ready to be adjudicated. Evidence development can be very time 

consuming and it is extremely important that any electronic claims system utilized 

by VA in the future adequately address this important part of the process, not just 

the actual adjudication of the claim, or any actual improvement in the current process will be minimal at best. 

Section 111. Treatment of Claims upon Death of Claimant 

The American Legion is pleased to support the intent of this section. Specifically, 

we fully support allowing a deceased veteran’s survivor to continue the claim upon 

the veteran’s death rather than VA terminating the claim and requiring the survivor to file a separate claim for accrued benefits, as is the current practice. Not 

only does the current practice cause duplication of effort and add to the existing 

claims backlog by requiring a ‘‘new’’ claim to be filed, it imposes an arbitrary 1-year 

deadline for the filing of such a claim. This deadline is often missed by grief stricken 

family members who were either unaware of the deadline or were not emotionally 

ready to go forward with the claims process within a year of their loved one’s death. 

This legislation provides a common sense approach that allows VA to avoid ‘‘reinventing the wheel’’ by not having to start over from scratch with a new claim and, 

at the same time, provides the deceased veteran’s survivors with a more user friendly and less complicated claims process. 

Section 201. Creation of Single Joint Department of Veterans Affairs and 

Department of Defense Disability Examination Process 

The American Legion supports the intent of this section. We are, however, concerned that the current military disability evaluation system, including the pilot 

program referenced in this section, does not have an independent appeals route for 

the servicemembers during the Department of Defense (DoD) phase. If the member 

does not agree with the medical determination, diagnosis or extent of the serviceconnected unfitting condition, there is no option for a second medical opinion unless 

the soldier obtains it at his own expense and the Physical Evaluation Board (PEB) 

grants it entry into the case. 

The military Medical Evaluation Board (MEB) and the PEB determinations can 

be formally appealed only to the Physical Disability Agency to which the PEB belongs. Thereafter, once separated or retired, the servicemembers, now veterans, 

begin the appeals process at the VA regional office level thus taking extensive time 

before they may receive an independent appeal of their case. The American Legion 

does not consider this to be fully mindful of the rights of military patients and soldiers who deserve to have an objective an independent recourse route in which to 


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appeal the findings in such an important medical and benefit determination process. 

Therefore, The American Legion urges that language be included in this section recognizing this significant shortcoming and establish an appeals process for both the 

military medical separations and medical retirements. 

Section 301. Annual Reports on Workload of United States Court of Appeals 

for Veterans Claims 

The American Legion does not oppose the provisions of this section. 

Section 302. Modification of Jurisdiction and Finality of Decisions of 

United States Court of Appeals for Veterans Claims 

The American Legion does not oppose the provisions of this section. 

Conclusion 

Thank you again, Mr. Chairman, for allowing The American Legion to present 

comments on this important draft legislation. As always, The American Legion welcomes the opportunity to work closely with you and your colleagues on enactment 

of legislation in the best interest of America’s veterans and their families. 

f 

Prepared Statement of Eric A. Hilleman 

Deputy Director, National Legislative Service 

Veterans of Foreign Wars of the United States 

Mr. Chairman and Members of the Subcommittee: 

On behalf of the 2.3 million men and women of the Veterans of Foreign Wars of 

the U.S. and our Auxiliaries, I thank you for the opportunity to present our views 

on the ‘‘Veterans Disability Benefits Claims Modernization Act Of 2008.’’ The modernization and improvement of the Department of Veterans Affairs (VA) claims 

processing system is a project that has been long time in the making. 

The mounting backlog of claims, which has grown over the past 10 years has not 

gone unnoticed by the VA, the Congress, the Veterans Service Organization (VSO) 

Community, or most importantly the veterans waiting months and often years for 

assistance. In response to the growing wait times, increasing complexity of claims, 

and increasing numbers of veterans from current and past wars seeking benefits, 

a number of commissions in recent years were formed to address these problems. 

The legislation we discuss today represents the most recent substantive step on 

the long road to reforming and improving a system. The system has served millions 

of veterans well over the years, but is now falling farther and farther behind. We 

are encouraged by many of the ideas outlined in this bill and the spirit with which 

they are offered. We sincerely hope that the energy expended to craft this legislation 

continues to facilitate the necessary followthrough that will ensure implementation 

of the recommendations contained herein. The problems that plague the Veterans 

Benefits Administration were many years in the making and it will take a number 

of measured improvements and change to cure the system’s ailments. 

We recognize that this is not the final version of the ‘‘Veterans Disability Benefits 

Claims Modernization Act of 2008.’’ That said, we offer our opinions and analysis 

of the most current version of the draft this Committee has provided. We thank you 

for your willingness to incorporate our views on this bipartisan measure to overhaul 

the disability claims process. 

Section by Section 

Section 101: ‘‘Presumption of Service-Connection for Veterans Who Were Deployed in 

Support of a Contingency Operation with Post Traumatic Stress Disorder.’’ 

Today, veterans who seek service connection for post traumatic stress disorder 

PTSD must have three things: a diagnosis of PTSD, a physician’s opinion that the 

PTSD was caused by an event in service, and evidence establishing that the event 

actually occurred. VA regulations lessen the burden of establishing the third criteria, proving the existence of the event, by allowing the receipt of certain medals 

awarded for participation in combat to some veterans, along with medals presented 

for valor, to suffice as evidence of an event (stressor) in service. Unfortunately, not 

everyone who engages in combat with an enemy receives a qualifying medal. 

Section 101 seeks to establish a presumptive service connection for PTSD for veterans that ‘‘engaged in combat with the enemy in active service with a military, 

naval, or air organization of the United States during a period of war, campaign, 

or expedition, and who is diagnosed with post traumatic stress disorder.’’ While well 

intended, it is our view that this misses the mark. The VA has no problem granting 

service connection for PTSD even many years after service. What it does have a 


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problem with is granting PTSD when a veteran who was in combat cannot prove 

it by showing receipt of a medal. It is not uncommon for veterans who served in 

Vietnam during Tet, during the Battle of the Bulge in WWII, or following a year 

or more in Iraq, to be forced to wait months, sometimes years, while VA and DoD 

search unit records for any evidence of combat. 

This legislation seeks to redefine how we view and evaluate PTSD as a Nation. 

As Members of our Nation’s largest veterans’ service organization made up of combat veterans, we support the intent of this section and its definition for the creation 

of a presumption to lessen the burden on disabled veterans who are diagnosed with 

PTSD. We suggest a substitution in language from ‘‘who engaged in combat with 

the enemy’’ to the language of those ‘‘who operated in a combat theater or area hostile to U.S. forces.’’ This allows veterans exposed to the stressors of living and working, day in and day out, in a combat zone, driving truck convoys, for instance, across 

Iraq to require these stressors to be recognized. We would also suggest substituting 

‘‘armed forces’’ for ‘‘a military, naval, or air organization.’’ In this instance too broad 

of a definition may include a military organization such as defense contractors or 

Federal employees operating in a military organizational capacity. In some cases, 

they would clearly be a military organization of the U.S. and operating on government orders. For clarity sake, the designation of ‘‘U.S. Armed Forces’’ is identifiable 

and clearly defined in law. 

Section 102: ‘‘Readjustment of Schedule for Rating Disabilities.’’ 

Section 102 would authorize a study of the disability ratings schedule. The study 

would be tasked with evaluating an ‘‘average loss of a veteran’s earnings . . . [and] 

the veteran’s quality of life’’ measure as determined by specific disabilities. Information to be used by this study would include, but not be limited to reviewing the Social Security Administration disability ratings, workers compensation systems, and 

foreign government disabilities compensation systems. The study would solicit feedback from private industry as well as VSOs. At the conclusion of the study, the report must be submitted to Congress weighing also this past year’s multiple commission reports in concert with the views of the Secretary of Veterans Affairs. 

The VFW supports a measured review of the ratings schedule, as stated by my 

colleague, Gerald T. Manar, Deputy Director of the National Veterans Service, before this Committee on February 26, 2008. We firmly believe that a one-time adjustment of the current schedule will not be sufficient to keep pace with the changing 

nature of ‘‘quality of life’’ and the evolving science of medicine, technology, and warfare. 

We are encouraged by the provision of this bill to establish an Advisory Committee to review and manage the process of adjusting the ratings schedule. We urge 

you to ensure this Committee is independent, beyond reproach, and represents the 

interests of veterans. We ask that prominent experts in the VSO community be appointed to represent the veterans’ voices on the 18 Member Advisory Committee. 

Section 103: ‘‘Study on Work Credit System of Veterans Benefits Administration.’’ 

Section 103 would require a study of the mechanism that VA uses to award credit 

for claims worked by claims adjudicators. During the period of this study the work 

credit and award system would be suspended pending a report on it to Congress. 

This section further delineates a timetable for implementation and reporting. We 

support and encourage a review of this work and management process; however we 

are concerned with section (c). 

In section (c), this legislation calls for a suspension of award of work credits during the evaluation period. We believe a wholesale suspension of all work credit 

would be counterproductive. VA is heavily dependent on its work credit system for 

tracking and managing its caseload. We urge this committee to consider banning 

performance awards based on production during the evaluation, leaving the mechanism for counting and tracking cases intact. 

Section 104: ‘‘Study on Work Management System.’’ 

Section 104 would commission a study of the work management system. This section outlines point specific study contents relating to quality, efficiency, and increased productivity with an eye toward implementation of a rules-based software 

program to aid in claims processing. 

The VFW supports technological advances within the VA with the goals of improving work processes. We believe that information technologies (IT) can be used to aid 

and improve the claims process. In studying the work management system, all aspects of the work process should be structured to incorporate IT applications where 

applicable. With a comprehensive review of VA’s process our veterans can be better 

served by a more modern and efficient VA. 


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Section 105: ‘‘Certification of Employees of Veterans Benefits Administration Responsible for Processing Claims.’’ 

Section 105 would have VBA employees and managers responsible for claims processing take certification examinations. The Secretary would develop the exam, in 

consultation with interested stakeholders, VA employees and managers. The exam 

would be administered within 1 year of the enactment of this provision. 

The VFW strongly supports certification of VA employees and managers. We view 

testing as a technical evaluation of the employees’ knowledge specific to their field. 

Clearly, team leaders, and Veteran Service Center Managers should be able to demonstrate an expert’s knowledge of the laws and regulations they are tasked with enforcing. While we believe that higher-level managers at both the local and national 

levels should have substantial knowledge of the claims adjudication process, we cannot support expanding certification to the highest levels of the VBA. We feel the VA 

Secretary should have the latitude to determine the levels examinations should be 

administered. 

We welcome the inclusionary language granting VSO’s, public, and private entities input into employee certification testing. Veterans groups represent the core 

constituents served by this testing regimen. The end goal remains accurate and 

timely claims processing; technical evaluations will aid to inform and improve the 

process. 

Section 106: ‘‘Annual Assessment of Quality Assurance Program.’’ 

Section 106 would give the VA Secretary the authority to contract with an independent 3rd party to study and annually review VA’s quality assurance program. 

The purpose of this study, beyond improving quality assurance, is to strengthen the 

employee certification program as prescribed by section 105 of this act. The Secretary would be tasked with the goals of measuring performance, accuracy, identifying trends in the regional offices with an eye toward automating data transfer and 

improving work processes. 

The VFW supports the comprehensive annual assessment of the quality assurance 

program. We are pleased to see independent review of VA processes. Given the VA 

admitted error rate of claims approximated between 12 to 14 percent we feel an unbiased review would help VA to identify problems with the goal of producing accurate claims. We feel an independent body would be free from the countervailing political forces that produce pressures to misreport the error rate. 

Section 107: ‘‘Expedited Treatment of Fully Developed Claims and Requirement for 

Checklist To Be Provided to Individuals Submitting Incomplete Claims.’’ 

Section 107 would establish a mechanism to expedite fully developed claims. It 

defines a fully developed claim as one that has received assistance and is submitted 

to VA from a VSO/county service officer or a claim that states the claimant does 

not wish to submit additional evidence. A checklist is prescribed by this section to 

ensure a detailed description of what may be needed by the VA for processing the 

claim as a fully developed claim. 

We support this provision and believe that this practice should be encouraged 

since it reduces the workload on VA staff and ensures that the backlog is not unnecessarily increased. To guarantee that this practice actually works, VA should require that regional office personnel, managers and veteran service officers are adequately trained to recognize a properly developed claim and understand that receipt 

of such a claim triggers actions which trigger prompt adjudication. 

We believe that VA should give no preferential treatment to any case which, upon 

review, is found not to be ready to rate. This is necessary to ensure that partially 

developed cases receive no preferential treatment, thereby slowing completion of 

claims already in process. 

However, one of the purposes of this program is to educate veteran service officers 

as to the evidence needed to produce a ready to rate case. We suggest that VA could 

do this by offering service officers an opportunity to complete development in a case 

found not ready to rate by telling them exactly what evidence is missing and giving 

them 10 working days to produce it. The case could be considered ready to rate if 

the service officer is able to provide the necessary evidence. Failure to timely complete the claim would simply mean that the case would receive no preference and 

be worked under current procedures. 

Section 108: ‘‘Study and Report on Employing Medical Professionals To Assist Employees of Veterans Benefits Administration.’’ 

Section 108 would study the applicability and effectiveness of staffing VBA with 

medical professionals to better inform the claims rating process. This provision 

would not employ medical professionals to rate any disability or evaluate a claim, 


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but it would study how medical professionals could assist claims raters from an education standpoint. 

The VFW supports the concept of a better-informed claims ratings process and we 

support studying the benefits of employing medical professionals to inform the process. The goal should be the continuing education of those who evaluate evidence and 

rate cases. However, we are concerned that medical professionals may inadvertently 

influence the process with an opinion on a claimed condition over the course of advising of a claims adjudicator. We ask that this Committee clearly express its wishes to further educate and inform the process while avoiding physicians issuing professional opinions on a claimants’ diagnosis. 

Section 109: ‘‘Assignment of Temporary Disability Ratings to Qualifying Veterans.’’ 

Section 109 would further grant the VA Secretary the authority to award a stabilization rating and distribute moneys to severely disabled veterans on case-by-case 

bases. The Secretary would be allowed to grant 100 or 50 percent temporary ratings 

for veterans until their full claims folder could be adjudicated. The determining factors for granting temporary disability ratings are for recently discharged disabled 

veterans with a disability that prevents them from working or an injury with material impairment. 

The VFW recognizes that this section is intended to offer interim relief to those 

veterans who may have to wait an extraordinarily long period for a final decision 

on their claims. Currently, VA has the authority that this provision of this bill seeks 

to codify in 38 CFR 4.28, ‘‘Prestabilization Rating from Date of Discharge from Service.’’ This section of the Code already calls for a 50 or 100 percent stabilization rating within 12 months of a veterans discharge from service based on unemployability 

due to disability. 

We support the concept of pre-stabilization ratings. We ask this Committee to encourage the VA to train claims adjudicators on this provision and encourage its use 

to the betterment of many seriously injured veterans. 

Section 110: ‘‘Review and Enhancement of Use of Information Technology at Veterans 

Benefits Administration.’’ 

Section 110 calls for VA to review its processes and to develop a comprehensive 

plan to incorporate information technology (IT) into the claims adjudication process. 

VA is asked to examine how it might transfer all prescribed benefits processing 

tasks and information into computer software programs that eliminate the need for 

paper claims folders and to provide remote access to a veteran’s claim by the veteran. The final report produced by VA would evaluate its current IT and its best 

practices as well as lessons learned. The whole of the review of IT should be done 

with the focus of a three-year implementation timetable for a comprehensive phasein of new IT processes. 

In our view there is computer programming and ‘‘artificial intelligence.’’ Nearly 

everything touted as ‘‘artificial intelligence’’ is really just computer programmers 

giving answers to a very large number of yes/no questions. There is, however, ample 

opportunity to use computers to decide certain evaluations based on established 

findings. Evaluations for service connected visual impairment or hearing loss, largely based on loss of visual acuity, fields of vision or decibel loss, could be easily assigned by computers. We encourage VA to utilize properly programmed computers 

to apply regulations to discrete data to arrive at concrete evaluations. This will 

allow rating specialists more time to work on decisions requiring judgment and experience. 

Section 111: ‘‘Treatment of Claims Upon Death of Claimant.’’ 

Section 111 allows a veteran’s next of kin to be treated as the claimant for the 

purposes of accrued benefits. This bill allows the next of kin to designate an individual, other than the next of kin, to act in the capacity of the claimant receive the 

said benefits. New evidence pertaining to the claimant’s case must be submitted 

within 1 year of the veteran’s death. 

We strongly support this provision. Many veterans have waited years to realize 

their claim for compensation with the VA. There is a popular mantra among many 

of these aging veterans, ‘‘the VA is trying to outlive me.’’ This provision demonstrates that the government cares about the welfare of its veterans and their families. 

Section 201: ‘‘Creation of Single Joint Department of Veterans Affairs and Department of Defense Disability Examinations Process.’’ 

Section 201 would simplify examinations for medically retired members of the 

military between the Department of Defense (DoD) healthcare network and VA. 

This section calls for one exam conducted by DoD for fitness of duty and one exam 


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conducted by VA to determine the severity of disability for the purpose of compensation. In creating one process with input for a cross agency development of a simplified evaluation process, it outlines cost sharing guidelines and agency areas of responsibility. 

The VFW enthusiastically supports a simplified process between DoD and VA. 

Section 301: ‘‘Annual Reports on Workload of United States Court of Appeals for Veterans Claims.’’ 

Section 301 would establish a reporting standard upon the chief judge of the 

Court of Appeals. The reports would consist of the number of appeals, petitions, applications, dispositions, settlements, oral arguments, and decisions. 

The VFW has no position on this provision. 

Section 302: ‘‘Modification of Jurisdiction and Finality of Decisions of United States 

Court of Appeals for Veterans Claims.’’ 

The VFW has no position on this provision. 

Section 401: ‘‘Report on Implementation of Veterans’ Disability Benefits Claims Modernization Act of 2008.’’ 

Section 401 states the VA Secretary would submit a report in under 180 days outlining the Secretary’s plan for implementation of the Disability Benefits Claims 

Modernization Act of 2008. 

The VFW supports reporting designed to improve the access to benefits for veterans. 

We thank this Committee for this opportunity to submit our views and work 

closely with staff to improve veterans’ benefits claims processing. We welcome any 

questions this Committee may have. 

f 

Prepared Statement of Carl Blake 

National Legislative Director, Paralyzed Veterans of America 

Mr. Chairman and Members of the Subcommittee, on behalf of Paralyzed Veterans of America (PVA) I would like to thank you for the opportunity to testify 

today on the ‘‘Veterans Disability Benefits Claims Modernization Act of 2008.’’ PVA 

appreciates the emphasis this Subcommittee has placed on making real reforms to 

a disability claims system that is being crushed by the weight of the claims backlog. 

We hope that addressing the issues outlined in this legislation will better benefit 

today’s veterans and the veterans of tomorrow. 

PVA generally supports the provisions outlined in Title I of the proposed legislation. However, we do have some concerns with different aspects of the various provisions. With respect to the provisions of section 101, PVA generally supports the 

intent of the proposal to establish a presumption for service-connection for veterans 

who were deployed to a combat theater and who present symptoms of Post Traumatic Stress Disorder (PTSD). However, we believe there are serious flaws in the 

legislation as drafted. 

First, the legislation establishes a standard that we believe is very difficult to 

prove in order to qualify for presumption. Specifically, the legislation states that the 

veteran must have engaged in combat with the enemy. This places the burden on 

the veteran to identify a specific event and submit evidence demonstrating that he 

or she was under fire from the enemy. We do not believe that this is the actual intent of the legislation, as it would make it even harder to receive a presumptive rating for PTSD. 

Second, this section allows for a very significant increase in the claims backlog. 

As written, the legislation would allow a veteran who meets the defined criteria to 

file a claim for presumptive service-connection, including veterans of all war periods. 

If this is in fact the intent of this Subcommittee, that needs to be clarified. Furthermore, while we recognize the implication that the men and women currently serving 

in combat theaters in Iraq and Afghanistan are under constant, intense pressure, 

and that the situation alone can allow for PTSD to manifest itself, we are concerned 

that this may create a possibility for veterans to be compensated for PTSD that is 

not the result of service in a combat operation or theater. 

PVA generally supports the requirement that the Department of Veterans Affairs 

(VA) readjust the schedule for rating disabilities called for in section 102. This is 

a concept addressed by both the Dole-Shalala Commission and the Veterans’ Disability Benefits Commission (VDBC). It is important to note that the VA is currently 

undergoing a complete rewrite of its regulations governing application of the ratings 


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schedule. However, we certainly understand the desire of Congress to see to it that 

the VA updates the disability ratings schedule. 

The only concern is the continued emphasis on adding a component to disability 

compensation that takes into account quality of life issues. While severe disabilities 

have an obvious impact on the ability to seek gainful employment, the affect on 

quality of life of individuals is far greater. Moreover, we are not convinced that 

there is a method to equitably and reasonably compensate disabled veterans for lost 

quality of life. We do believe that current compensation rates for VA disability compensation take into account the impact of a lifetime of living with a disability and 

the every day challenges associated with that disability. 

PVA supports section 103 that calls for a study of the work credit system used 

by the Veterans Benefits Administration (VBA). This is the system that the VBA 

uses to evaluate the production of its claims adjudication staff. PVA particularly appreciates the emphasis placed on performance standards and accountability measures in the development of a new work credit system. We would, however, caution 

the Subcommittee on the language concerning implementation of a new work evaluation system. The language suggests that the current work credit system should 

be eliminated. While we certainly agree that there are flaws in that system, given 

the focus on quantity rather than quality, it is premature to assume that the framework of the current system might not be the best measuring stick with appropriate 

changes. 

PVA likewise supports the requirement to study the work management system 

outlined in section 104. We appreciate the emphasis placed on maximizing the use 

of information technology (IT) applications, particularly in light of the frustrations 

expressed over the last year with the VBA’s IT systems. 

PVA has no problems with section 105 of the legislation that requires VBA employees and managers to take a certification examination. PVA requires this from 

its service officers who provide direct support to veterans seeking benefits. This has 

proven to be an effective tool in evaluating the knowledge of our employees and ensuring that the best qualified individuals are assisting veterans. It only makes sense 

that the VA be taking similar steps. Likewise, we support section 106 of the legislation that will support the development of the certification examination. 

We have no objection to section 107 of the proposed legislation that is meant to 

expedite consideration of a fully developed claim. We appreciate the recognition 

given to the work of service officers of the veterans’ service organizations under the 

newly created section 5109C of Title 38. However, we do have some concern about 

the requirement for a checklist to be provided to individuals submitting claims. It 

seems that in order for the VA to provide a checklist of missing items in an incomplete claim, it will have to already adjudicate the claim. We certainly do not believe 

that this is the intent of the Subcommittee, and we believe that this provision warrants further consideration and clarification. 

PVA has no objection to section 108 of the legislation that requires a study and 

report on employing medical professionals to assist employees of the VBA. However, 

we believe that the language needs to be clear as to what the desired role of medical 

professionals is meant to be in the process. We have no problem with medical professionals serving as a resource to claims adjudication staff on questions directly related to general health issues. However, we do not believe medical professionals 

should be called on to make judgments on issues as they relate to adjudication of 

veterans claims specifically. 

PVA has no objection to the provisions of section 109 that would require the VA 

to provide a temporary disability rating to certain veterans with a disability or who 

might not be employable. However, it is important to ensure that provision of a temporary disability rating will not preclude the VA from completing a veteran’s claim 

in a timely manner. We particularly appreciate the language that will allow the 

temporary rating to be extended, if necessary. 

Recent hearings have demonstrated how far behind the VBA is in using information technology in its claims adjudication process. While we believe that the entire 

claims process cannot be automated, there are many aspects and steps that certainly can. We have long complained to the VA that it makes no sense for severely 

disabled veterans to separately apply for the many ancillary benefits to which they 

are entitled. Their service-connected rating immediately establishes eligibility for 

such benefits as the Specially Adapted Housing grant, adaptive automobile equipment, and education benefits. However, they still must file separate application 

forms to receive these benefits. That makes no sense whatsoever. 

Furthermore, certain specific disabilities require an automatic rating under the 

disability ratings schedule. It does not take a great deal of time and effort to adjudicate a below knee single-leg amputation. An advanced information technology sysVerDate Aug 31 2005 05:57 Dec 23, 2008 Jkt 043047 PO 00000 Frm 00069 Fmt 6604 Sfmt 6621 E:\HR\OC\43047.XXX 43047

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tem can determine a benefit award for just such an injury quickly. With these 

thoughts in mind, PVA fully supports the provisions of section 110. PVA supports the provisions of section 111 of the legislation. We have supported 

similar legislation in the past. It is only appropriate that the original claimant’s 

beneficiary be permitted to complete the claims process if the veteran dies during 

the process. 

With respect to the transition of servicemembers from active duty to veteran status outlined in Title II of the legislation, we certainly support the intent. We supported the recommendations of both the Veterans’ Disability Benefits Commission 

and the Dole-Shalala Commission that called for a single separation physical. As 

mentioned in the legislation, the VA and DoD are currently conducting a pilot program that addresses this issue and we look forward to their findings during the conduct of this program. 

We do believe that the language should stipulate that the VA be responsible for 

actually performing the separation physical. The VA has greater experience at providing a comprehensive medical examination as it requires the most thorough medical review of a veteran to determine degree of disability. DoD separation physicals 

tend to be singularly focused on the immediate health issue that impacts fitness for 

duty. 

We are pleased with the fact that the legislation calls for the DoD to only determine fitness for duty as a part of the process and the VA to determine the degree 

of disability. This reaffirms the responsibility that each department has in a single 

separation process. The DoD simply needs to be concerned about whether or not a 

service Member can perform his or her military responsibilities. The VA is the subject matter expert on determining degree of disability for compensation purposes. 

PVA supports the requirement in section 301 of the legislation for the United 

States Court of Appeals for Veterans Claims to file an annual report detailing the 

workload it handles each year. The list of required information seems to be comprehensive. This section is in accordance with the recommendations of The Independent Budget. We would only hope that the information provided is put to good 

use. 

With respect to section 302, we have had extensive discussion at PVA between 

our Veterans Benefits staff and our General Counsel. This section would amend the 

jurisdiction of the United States Court of Appeals for Veterans Claims to require 

it to essentially address all issues raised by an appellant, and it would preclude the 

VA from confessing error. While we recognize that this issue is addressed in The 

Independent Budget for FY 2009, our General Counsel has expressed some concerns 

with this provision of the legislation that I would like to outline. 

While we understand that it is sometimes frustrating when the Court fails to address issues raised to it, there is no Court that is required by its jurisdictional statute to address all issues raised by an appellant. We believe that requiring the Court 

to address all issues raised in an appeal will certainly result in a significant increase in processing time for cases on appeal to the Court. We believe that this 

could create a situation where the Court may find cases and even issues to be frivolous whenever it can as a means to discourage appellants from bringing cases and 

issues that are not relevant to a decision on the matter. 

We also believe that it can be harmful to veterans to preclude the VA from 

confessing error in cases on appeal to the Court. Confessing error is something that 

we should encourage the government to do when appropriate. Over the years, PVA 

has achieved a great deal of success by working with the VA and encouraging them 

through negotiation to confess error resulting in our clients obtaining benefits in the 

most expeditious manner. 

Mr. Chairman and Members of the Subcommittee, PVA would once again like to 

thank you for the opportunity to provide our views on this important legislation. We 

look forward to working with you to continue to improve the benefits and services 

available to veterans. 

Thank you again. I would be happy to answer any questions that you might have. 

f 

Prepared Statement of Bradley G. Mayes 

Director, Compensation and Pension Service, Veterans Benefits 

Administration, U.S. Department of Veterans Affairs 

Mr. Chairman and Members of the Committee, thank you for the opportunity to 

testify today on the draft ‘‘Veterans Disability Benefits Claims Modernization Act 

of 2008.’’ I am accompanied today by Richard J. Hipolit, Assistant General Counsel, 

and Steven L. Keller, Senior Deputy Vice Chairman, Board of Veterans’ Appeals. 


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I will address today only those provisions of the draft bill for which the administration could develop and coordinate its views in the time provided. 

Section 101 

Section 101(a) of the draft bill would add post traumatic stress disorder (PTSD) 

to the statutory list of diseases that are presumed to have been incurred in or aggravated by service under certain circumstances. The presumption would apply to 

any veteran who engaged in combat with the enemy in active service during a period of war, campaign, or expedition and who is diagnosed with PTSD. Section 

101(b) would make the presumption applicable to compensation claims pending on 

or after the date of enactment. 

The Department of Veterans Affairs (VA) does not support section 101. Currently, 

in cases involving an in-service diagnosis of PTSD by a mental health professional, 

VA will accept any reasonable in-service stressor as long as it appears consistent 

with the circumstances of the veteran’s service and, if a VA examination and other 

evidence support the decision, establish service connection on a direct basis. However, PTSD may first be diagnosed many years after service. Under such circumstances, VA regulations require a link between the symptoms of properly diagnosed PTSD and an in-service stressor. If a veteran establishes that he or she engaged in combat and the claimed stressor is related to combat, VA concedes (in the 

absence of clear and convincing evidence to the contrary) the existence of a stressor 

sufficient to establish service connection. Nonetheless, in the case of a post-service 

diagnosis of PTSD, we believe it is necessary that medical evidence establish a link 

between the PTSD and the in-service stressor. Because section 101 would eliminate 

this requirement, we cannot support it. 

Section 102 

Section 102 would require VA to conduct a study within 180 days of the date of 

enactment on adjustment of the Schedule for Rating Disabilities so as to base the 

schedule on current standards, practices, and codes in common use by the medical 

and disability profession and determine, among other things, how the schedule could 

be adjusted to take into account the loss of quality of life resulting from specific disabilities. VA would be required to report to Congress on its conclusions and recommendations based on the results of the study within 60 days of its completion 

and submit to Congress not later than 120 days thereafter a plan to readjust the 

rating schedule within 5 years to align the schedule with medical best practices, 

prioritize readjustment with respect to PTSD, traumatic brain injury, and certain 

other disorders, ensure the schedule is automated in accordance with a comprehensive plan called for in section 110 of the draft bill, and ensure provision of a transition plan to ease transition to the readjusted schedule. VA would be directed to revise the schedule in accordance with this plan and to form an Advisory Committee 

on Disability Compensation with which to consult regarding the maintenance and 

periodic readjustment of the rating schedule. 

VA does not support section 102. On October 16, 2007, the Administration submitted to Congress proposed legislation, ‘‘America’s Wounded Warriors Act.’’ Section 

201(b) of that bill contains a proposal for a study regarding creation of a schedule 

for rating disabilities based on current concepts of medicine and disability, taking 

into account loss of quality of life and loss of earnings resulting from specific injuries or combination of injuries. We believe that bill provides the most promising 

prospect for meaningful revision of the rating schedule and urge its enactment instead of section 102 of the draft bill under consideration today. Among our concerns 

with the draft bill is the requirement of section 102(c)(1)(A) that the plan for readjustment of the rating schedule that VA would be required to submit to Congress 

contain provision for alignment of the schedule with concepts drawn from the Current Procedural Terminology Manual, the International Classification of Diseases, 

the Diagnostic and Statistical Manual of Mental Disorders, and the applicable 

American Medical Association Guides. These sources represent highly complex coding systems intended for purposes other than rating of disabilities for compensation 

purposes. We believe reliance on these sources would introduce unwarranted complexity to our disability evaluation process and could undermine our efforts to enhance consistency in rating disabilities. In addition, VA has contracted for studies 

on Quality-of-Life and Loss-of-Earnings compensation and on transition payments. 

The results of these studies are due in August and could form the basis for a reform 

such as this legislation would require. 

Section 103 

Section 103(a) would require VA to study the Veterans Benefits Administration’s 

(VBA’s) work credit system, which is used to measure VBA employees’ work production. Section 103(b) would require VA, in carrying out the study, to consider the adVerDate Aug 31 2005 05:57 Dec 23, 2008 Jkt 043047 PO 00000 Frm 00071 Fmt 6604 Sfmt 6621 E:\HR\OC\43047.XXX 43047

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visability of implementing: (1) performance standards and accountability measures 

to ensure that benefit claims are processed objectively, accurately, consistently, and 

efficiently and that final decisions on claims are consistent and issued within a certain time; (2) guidelines and procedures for the prompt processing of claims that are 

ready to rate when submitted; (3) guidelines and procedures for processing claims 

submitted by severely injured and very severely injured veterans; and (4) requirements for assessing claim processing at each regional office for the purpose of producing lessons learned and best practices. 

Section 103(c) would require VA to establish a new system for evaluating the 

work production of VBA employees. The system would have to be based on findings 

of the study required by subsection (a), would have to focus on evaluating the accuracy and quality of ratings decisions made by VBA employees, and could not resemble or be based on any concept on which the current system is based. Section 103(c) 

would also prohibit VA from awarding a work credit to any VBA employee until VA 

has implemented the new system. Section 103(d) would require VA to submit to 

Congress, not later than 180 days after the date of enactment, a report on the study 

and VA’s progress in implementing the new employee evaluation system. 

VA does not support section 103. VBA periodically conducts work measurement 

studies, and employee performance standards are derived from those studies. Suspension of work credit until implementation of a new system would delay provision 

of feedback to employees and may have the effect of concealing organizational weaknesses. The potential impact of this provision on VA’s ability to effectively manage 

organizational performance and determine resource needs is of great concern to us. 

Furthermore, while VA is not opposed to studying new work-rate measurement 

methodologies, we are concerned that the provision of section 103(c) prohibiting the 

contemplated new system for evaluating work production from resembling or being 

based on any concept on which the current system is based would seem to prejudge 

the results of the study that section 103 would authorize. 

Section 104 

Section 104(a) would require VA to study and report to Congress on the VBA 

work management system, which is designed to reduce claim processing time. Section 104(b) would require VA to contract for an evaluation of VA’s training and performance assessment programs for VBA employees who are responsible for matters 

relating to compensation and pension benefits and to report to Congress on the results of that evaluation. 

VA does not support this provision because it is unnecessary. We are currently 

implementing a comprehensive strategy to integrate various information technology 

initiatives to improve claims processing. At the core of our strategy is the implementation of a business model for compensation and pension claim processing that is 

less reliant on paper documents. Initial pilot efforts have demonstrated the feasibility of using imaging technology and computable data to support claims processing 

in the compensation and pension programs. In addition to use of imaging and computable data, we are incorporating enhanced electronic workflow capabilities, enterprise content and correspondence management services, and integration with our 

modernized payment system, VETSNET. Further, we are exploring the utility of 

business rules engine software for both workflow management and to potentially 

support improved decisionmaking by claims processing personnel. We recently contracted with IBM to analyze our current business processes and provide recommendations to further improve our operational efficiency and consistency. The 

recommendations and plans provided by IBM are consistent with VBA’s goal to completely transition compensation claims processing to a paperless, electronic environment. We are focused on developing an integrated plan, including milestones and 

performance metrics, so that we and our stakeholders will be able to assess our 

progress in this endeavor. We would prefer to maintain our focus on the measures 

we are already taking, rather than divert resources to a new evaluation effort. 

Section 105 

Section 105(a) would require VA to require appropriate VBA employees and managers who are responsible for processing benefit claims to take a certification examination. The examination would have to be developed in consultation with examination development experts, interested stakeholders, including the VBA employees and 

managers, and appropriate public and private entities, including veterans service organizations and other service organizations. Section 105(b) would require VA to implement administration of, and procedures relating to, the certification of employees 

not later than 90 days after the date of enactment and develop the certification examination not later than 1 year after that date. 


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VA does not support this provision because it is unnecessary. VBA already has 

a thorough certification examination process for Veterans Service Representatives 

and that process is being expanded. Pilot testing has been conducted for Rating Veterans Service Representatives, and a field test is scheduled for next month. In addition to being unnecessary, Section 105 would also impose unrealistic deadlines considering that aspects of this activity would be subject to collective bargaining requirements. 

Section 106 

Section 106 would amend 38 U.S.C. § 7731 to require VA to enter into a contract 

with an independent third-party entity to conduct annual assessment of the quality 

assurance program required under that section. VA would be required to use the 

information gathered through the annual assessments in developing the employee 

certification required under section 105 of the draft bill. 

VA does not support this provision because it is unnecessary. VBA currently has 

a robust quality assurance program under which over 15,000 individual claim folders containing decisions will be reviewed annually by 2009. Site visits are scheduled 

so that each regional office is visited a minimum of once every 3 years. Additionally, 

VA conducts specialized reviews where appropriate. VA has conducted initial piloting and validation of tools to monitor consistency of decisionmaking across regional 

offices. We have determined that the methodology we have developed is effective, 

and we will soon begin regular assessments of the most frequently rated diagnostic 

codes to evaluate consistency of service-connection and rating determinations across 

regional offices. We have also implemented a quality assurance program using silent 

monitoring to assess the quality of assistance provided on our toll free call-in number. The Government Accountability Office, in a recent assessment of the Department of Defense (DoD) Disability Evaluation System, referenced the VA compensation and pension quality review program as a favorable model for adoption. 

Section 107 

Section 107(a) would add a new section 5109C to title 38, United States Code, requiring VA to take such actions as necessary to provide for the expeditious treatment of fully developed claims to ensure that any such claim is adjudicated not later 

than 90 days after submission. A fully developed claim would be one for which: (1) 

the claimant received assistance from a veterans service officer or with which the 

claimant submits an appropriate indication that the claimant does not intend to 

submit any additional information in support of the claim and does not require additional assistance with respect to the claim; and (2) submits a written certification 

stating that no additional information is available or needs to be submitted in order 

for the claim to be adjudicated. Section 107(b) would amend 38 U.S.C. § 5103 to require VA, as part of its notice to claimants of the information and evidence necessary to substantiate a claim, to provide the claimant with a checklist including 

a detailed description of any information and evidence required to be submitted by 

the claimant to substantiate the claim. These measures would be required to be implemented within 180 days of enactment. 

VA does not support section 107(a) because claims that are received ready-to-rate 

are already fast tracked. Further, claims submitted by unrepresented veterans or 

veterans represented by veterans service organizations may in some instances be incomplete, and VA must work with the veterans and their veterans service officers, 

if any, to assist them in fully developing their claims. Thus, section 5109C could 

have the unintended consequence of requiring VA to prematurely adjudicate claims 

that warrant additional development, including claims that are meritorious and 

would result in an award of benefits upon full development. 

We also do not support section 107(b). While we desire to improve the utility of 

our notice letters, to the extent that the intention of the bill is to require a checklist 

containing claim specific information, we believe the provision may actually result 

in delayed claim adjudications and unnecessary litigation. For instance, section 

5109C, as drafted, requires VA to furnish a checklist, including ‘‘a detailed description of any information or evidence required to be submitted by the claimant to substantiate the claim.’’ This language appears to impose upon VA a duty to 

‘‘preadjudicate’’ a claim for benefits, that is, to conduct a review of the information 

or evidence submitted to date and provide a detailed assessment to the claimant as 

to what portion of the evidence, if any, needed to substantiate the claim is missing. 

This ‘‘preadjudication’’ of a claim, if required, would unduly burden our personnel 

and would hamper our ability to serve veterans. 

Moreover, because the checklist would be provided as part of VA’s required Veterans Claims Assistance Act notice, we believe that it would run a high risk of being 

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nized early in the adjudication process. Our experience with the current notice requirements clearly indicates that any notice requirement will be subject to judicial 

interpretation that may necessitate large scale reworking of claims. For the foregoing reasons, a claim-specific notice such as that apparently contemplated by section 107(b) would place too great a burden on VA claim adjudication personnel and 

severely hamper our efforts to reduce our claim backlog. 

Section 108 

Section 108 would require VA to conduct a study of the need of VBA to employ 

medical professionals, including medical professionals who are not physicians, to act 

as a medical reference for employees required to assess medical evidence submitted 

in support of claims. VA would be required to report to Congress within 180 days 

of enactment on the results of the study. 

VA does not support this legislation because VA has physicians available in its 

Veterans Health Administration who can offer medical opinions to VBA claim adjudicators. 

Section 109 

Section 109 would add a new section 1156 to title 38, United States Code, requiring VA to assign for compensation purposes a temporary disability rating of 100 percent or 50 percent for a veteran who has been discharged from active duty for 365 

days or less, for whom a permanent disability rating cannot be immediately assigned, and who has a severe disability making substantially gainful employment 

not feasible or advisable or an unhealed or incompletely healed wound or injury 

where material impairment of employment is likely. The temporary rating would remain in effect until the earlier of the date on which the veteran receives a permanent disability rating under the rating schedule or the date that is 365 days after 

the date of the veteran’s last separation from active duty. VA would be required to 

review all pending disability compensation claims within 30 days of the date of enactment to determine whether the veteran is entitled to a temporary disability rating under this provision. 

VA does not support this provision because it is unnecessary. VA already has sufficient authority under its regulations to award prestabilization ratings for all disabilities using criteria comparable to those specified in the legislation. Further, the 

review of all pending claims within 30 days after the date of enactment is not feasible using currently available resources. 

Section 110 

Section 110 would require VA, within 1 year after the date of enactment, to conduct a review of the use of information technology by VBA and develop a comprehensive plan for the use of such technology in claims processing to reduce subjectivity, avoidable remands, and regional office variances in disability ratings. This 

section would also require VA to develop a plan that, within three years of implementation, would reduce claim processing time for each claim processed by VBA to 

not longer than the average time required to process a claim as identified in the 

most recent annual report submitted under 38 U.S.C. § 7734. VA would further be 

required to submit a report to Congress on the required review and plan not later 

than January 1, 2009. 

VA does not support section 110 because a comprehensive approach to accomplishment of the goal of this legislation is already underway. As I noted in my comments 

on section 104 of this bill, we are currently implementing a comprehensive strategy 

to integrate various information technology initiatives to improve claims processing. 

Section 111 

Section 111 would add a new section 5121A to title 38, United States Code, to 

provide that the person who, under current law, would receive accrued benefits 

based on the death of a veteran claimant who dies while awaiting the adjudication 

of the claim (the veteran’s surviving spouse, child, or dependent parent) be treated 

as the claimant for purposes of processing the claim to completion. It would permit 

the person to submit new evidence in support of the claim during the 1-year period 

beginning on the date of the veteran’s death. If that person certifies to VA that he 

or she does not want to be treated as the claimant, the person may designate the 

individual who would receive accrued benefits based upon the first person’s death 

to be treated as the claimant for purposes of processing the claim to completion. 

This provision would apply to the claim of any veteran who dies on or after the date 

of enactment. 

We do not object to this section, which would allow the submission of evidence 

in support of a claim that was pending before VA when the veteran died. Such legislation would be consistent with the Veterans Disability Benefits Commission’s recVerDate Aug 31 2005 05:57 Dec 23, 2008 Jkt 043047 PO 00000 Frm 00074 Fmt 6604 Sfmt 6621 E:\HR\OC\43047.XXX 43047

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ommendation to allow a veteran’s survivors, but not a creditor, to pursue the veteran’s due but unpaid benefits and any additional benefits by continuing a claim 

that was pending when the veteran died, including presenting new evidence not in 

VA’s possession at the time of death. 

However, as currently drafted, section 111 would raise several issues with respect 

to its implementation. Section 5121(a) of title 38, United States Code, requires VA 

to pay accrued benefits (periodic monetary benefits to which a deceased claimant 

was entitled at death under existing decisions or evidence in the file at the time 

of death) to certain specified individuals (for a deceased veteran, the veteran’s 

spouse, children, or dependent parents). Nothing is required of those individuals 

other than the filing of an application within 1 year of the claimant’s death and 

proof that the individual qualifies as a payee under section 5121. However, only if 

an application is timely filed and the applicant establishes entitlement to accrued 

benefits would that person ‘‘receive any accrued benefits due to the veteran.’’ Only 

then could the person be treated as the claimant under section 111. Furthermore, 

permitting a substitute claimant upon a veteran’s death could require VA to develop 

the claim, including obtaining medical evidence on the deceased veteran who could 

no longer be examined or authorize the release of protected health information. The 

laws of the various states govern the disclosure of protected health information by 

private health care providers, so VA and the substitute claimant would be limited 

by such laws in obtaining medical evidence concerning the deceased veteran. 

Under the bill’s language, it would be possible that more than one person could 

simultaneously be ‘‘the claimant.’’ Under section 5121, upon the death of a veteran 

and in the absence of a surviving spouse, the veteran’s children or dependent parents may be entitled to accrued benefits. Therefore, under section 111 of the bill, 

in the absence of a surviving spouse, ‘‘the claimant’’ could be two or more children 

of a veteran or two dependent parents. This situation could create complications if 

the persons disagreed as to how to prosecute the claim. 

Section 111 is unclear as to what would happen if the person who would receive 

a deceased veteran’s accrued benefits does not want to be treated as the claimant. 

If, as section 111 would permit, that person designates as the claimant ‘‘the person 

who would receive such benefits upon the death of the person who would otherwise 

be treated as the claimant’’ under the provision, but also pursues a claim for accrued benefits, then both persons would be pursuing a claim for the same benefits. 

Furthermore, the two claims could be decided on different evidence because a claim 

for accrued benefits under section 5121 is limited to the decisions existing or evidence on file when the veteran died, but a claim pursued under section 111 would 

not be so limited. 

At this time, we cannot estimate the cost of this section because we do not have 

sufficient data to determine the number of veterans who die with a claim pending. 

Additionally, we cannot determine whether their claims would be granted with a 

compensable evaluation. 

Section 201 

Section 201(a) would require VA and DoD to review the results of the Single Disability Evaluation/Transition Medical Examination pilot study conducted pursuant 

to law and jointly create a single disability examination process for medically 

transitioning members of the Armed Forces and members of the reserve components. Section 201(b) would require VA and DoD to: (1) ensure that DoD determines 

fitness for duty and VA rates the severity of disability for members who medically 

separate or retire from active duty service or reserve component service; (2) establish a cost-sharing arrangement for the examination process; (3) consider the reports 

and applicable recommendations on a single examination process made by the Independent Review Group on Rehabilitative Care and Administrative Processes at Walter Reed Army Medical Center and the National Naval Medical Center, the Secretary of Veterans Affairs Task Force on Returning Global War on Terror Heroes, 

the President’s Commission on Care for America’s Returning Wounded Warriors, 

and the Veterans’ Disability Benefits Commission; and (4) ensure that DoD and VA 

share the costs associated with conducting examinations under the examination 

process. 

Section 201(c) would require VA and DoD to implement the single disability examination process not later than 1 year after the date of enactment. Section 201(d) 

would require VA and DoD to submit to Congress an interim report not later than 

3 months after the date of enactment and a final report not later than 6 months 

after that date. 

VA does not support section 201 because it assumes that the pilot program currently underway will be successful and should be expanded to all service personnel 

subject to the disability evaluation process. VA, DoD, and Congress should wait for 


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the results of the pilot project before determining whether continuation and expansion of the joint program would be beneficial. 

Section 301 

Section 301 would require the Chief Judge of the United States Court of Appeals 

for Veterans Claims (Veterans Court) to report annually to the House and Senate 

Committees on Veterans’ Affairs on the Court’s workload during the previous fiscal 

year. Because this section would impose the reporting requirement on the Court and 

require nothing of VA, we defer to the Court on this matter. 

Section 302 

Section 302(a) would make the following changes with respect to the Veterans 

Court’s review of decisions of the Board of Veterans’ Appeals (Board). It would prohibit VA from making an assignment of error or conceding an error not raised by 

the appellant unless first obtaining the appellant’s written consent. It would add to 

the Veterans Court’s current powers (to affirm, modify, or reverse a Board decision 

or remand the matter, as appropriate) the power to ‘‘vacate and remand’’ a Board 

decision. It would prohibit the Court from affirming, modifying, reversing, remanding, or vacating and remanding a Board decision without first deciding all assignments of error raised by an appellant for each particular claim for benefits. Finally, 

it would permit the Court, if the Court reverses a decision on the merit of a particular claim and orders an award of benefits, not to decide any additional assignments of error with respect to that claim. Under section 302(b), these changes would 

apply to Board decisions made on or after the date of enactment. 

VA opposes enactment of section 302. The provision prohibiting VA from making 

an assignment of error or conceding an error not raised by the appellant, without 

first obtaining the appellant’s written consent, is undesirable and unnecessary. If 

an appellant has retained a representative, then the parties to the litigation jointly 

negotiate the terms of a remand, and there is no need to require the appellant’s consent to any confessions of error. If, on the other hand, the appellant is not represented (as is often the case), then the Veterans Court typically orders the appellant to respond to VA’s remand motion and thereby provides ample opportunity for 

the appellant to object to the remand and any confessions of error made by VA. 

Moreover, the appellant can waive an error noted by VA if the appellant believes 

that such error was harmless or otherwise not worthy of the Court’s consideration. 

Thus, the existing system already safeguards the appellant’s interests. 

Anywhere from 19 percent to 47 percent of appellants represent themselves before 

the Veterans Court. Many have limited educations, are otherwise unsophisticated 

in litigation and adjudication matters, or suffer the effects of mental disorders. 

Many are suspicious of the government. These factors would hinder VA’s ability to 

assign errors for the Court’s consideration and, perhaps, act as a disincentive to do 

so. Given these realities, it is not viable to require written consent from an appellant before VA may submit the issues to the Court for resolution. 

Moreover, this provision would create ethical problems. For example, VA counsel 

are ethically bound to represent VA’s interests. Counsel cannot ethically cede VA’s 

interests to his or her adversary by permitting VA’s adversary to determine what 

issues VA may argue before the Court. 

In addition, this provision would implicate counsel’s duty of candor to the Court. 

The Veterans Court observed in Johnson v. Brown, 7 Vet. App. 95 (1994), ‘‘[a]s to 

the General Counsel’s general responsibilities, Rule 3.3(a)(3) of the American Bar 

Association’s Model Rules of Professional Conduct, the Code of Professional Responsibility, adopted in Rule 1(b) of the Appendix to Rule 46 of this Court’s Rules of 

Practice and Procedure [Court’s Rules] (see Misc. Order No. 3–92 (Aug. 1, 1992) (en 

banc)), states: ‘A lawyer shall not knowingly . . . fail to disclose to the tribunal legal 

authority in the controlling jurisdiction known to the lawyer to be directly adverse 

to the position of the client and not disclosed by opposing counsel’. Model Rules of 

Professional Conduct Rule 3.3(a)(3) (1991). The Secretary’s confession of errors here 

is thus a disclosure of legal authority, ‘not disclosed by opposing counsel’, that is 

worthy of the Court’s attention, not its disregard.’’ Johnson, 7 Vet. App. at 98. It 

is undesirable for section 302 to so constrain counsel’s duty of candor to the Court. 

Importantly, the Veterans Court is authorized by law to review the entire record 

and consider all errors. Although an appellant is entitled to seek judicial review by 

filing a notice of appeal, the law does not afford an appellant the right to frame the 

issues or to otherwise control the appeal once the Court is vested with jurisdiction. 

As noted in Johnson, ‘‘[t]he law has specifically assigned to this Court ‘exclusive jurisdiction to review decisions of the Board.’ 38 U.S.C. § 7252(a). In carrying out this 

review, the Court is directed to, inter alia, ‘decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the 


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meaning or applicability of the terms of an action by the Secretary’. 38 U.S.C. 

§ 7261(a)(1). Under this broad authority—indeed, mandate—to carry out comprehensive judicial review of [Board] decisions, the Court undoubtedly would have jurisdiction to consider those same Board errors if raised by the appellant or noted, sua 

sponte, by the Court itself. Hence, the fact that these errors were here raised by 

the Secretary cannot deprive the Court of jurisdiction to consider them.’’ Johnson, 7 Vet. App. at 98–99. 

The provision that would prohibit the Veterans Court from deciding an appeal 

without first addressing every allegation of error raised by the appellant is also 

problematic. The notion of requiring the Court to delay remanding a case until it 

decides all assignments of error raised by an appellant was cogently rejected by the 

Court in Best v. Principi, 15 Vet. App. 18 (2001) (per curiam order). Such a rule 

would harm rather than help veterans. 

In Best, the Court had remanded the appeal for VA’s consideration of a recently 

enacted public law, but the appellant objected on the basis that the Court had not 

considered allegations of error that he had raised which might be capable of repetition on remand. The Court offered a compelling analysis regarding why a remand 

on narrow grounds is in the best interest of appellants and the sound administration of justice. First, the Court explained that, when it issues a remand, the underlying Board decision is vacated (i.e., rendered a nullity), and the claim must be adjudicated anew. The Board must reexamine the case and permit the claimant to submit additional evidence and additional arguments. In other words, the claimant retains the right to raise to the Board all putative errors in the handling of the claim, 

without being limited by the specific grounds of the Court’s remand order. 

Second, the Court noted in Best that the practice of remanding a case on narrow 

grounds was consistent with the practice in other courts, and consistent with the 

statute defining the Court’s scope of review. It warned, for example, that the Court 

might be relegated to the role of issuing a mere advisory opinion regarding the putative errors asserted by an appellant, because further development of factual and 

legal issues can change the landscape of the case on remand. 

Finally, the Court in Best also warned that, if it were to rule on every allegation 

raised by an appellant, then any rulings against the appellant would foreclose him 

from reasserting the issues on remand. ‘‘A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against 

him.’’ Best, 15 Vet. App. at 20. Such foreclosure would deprive an appellant of the 

opportunity to craft a more persuasive argument below against the new legal and 

factual context of the readjudicated claim, and would deprive the appellant of judicial review of the issue if VA decides against him or her. 

The Best holding is a flexible rule, and it does not require a judge to disregard 

other putative errors asserted by an appellant when remanding a case. Instead, the 

Best rule leaves to the discretion of the judge which arguments will be addressed, 

depending upon the circumstances of each case. Indeed, in several remanded appeals, the Veterans Court has chosen to address each putative error raised the appellant, notwithstanding Best. 

This provision of the draft bill would be unfair to those who are waiting in the 

queue for the judges to get to their cases. The parties before the Veterans Court 

are entitled to a timely decision. Many appellants before the Veterans Court are in 

poor health or are elderly. The purely conjectural allure of the provision must yield 

to the very real possibility that some appellants will die before obtaining a decision 

from the Veterans Court, if the judges are required to address every argument in 

every case without regard to whether the argument would make a difference to the 

ultimate outcome of the appeal. 

Moreover, this provision would deprive the judges of the flexibility that they need 

to manage a burgeoning caseload with limited resources. Notably, the provision 

makes no distinction between colorable arguments and frivolous arguments—the 

Veterans Court must address them all. This requirement is antithetical to the principle of judicial economy and is counterproductive to Congressional efforts to reduce 

the inventory of appeals at the Veterans Court. If section 302 were enacted, decisions on appeals would be delayed, the backlog would grow, and veterans and VA 

would be deprived of timely resolution of their disputes. 

For all these reasons, VA believes that enactment of section 302 of the draft bill 

is undesirable, and we oppose it. 

Section 401 

Section 401 would require VA to submit within 180 days of the date of enactment 

a report to Congress describing how VA plans to implement the legislation and the 

amendments made by it. 


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A number of provisions of the draft bill include requirements for reports to Congress on studies and actions to implement particular provisions of the bill. The report contemplated by section 401 would seem to duplicate, and in some instances 

conflict with, the timing of reports otherwise called for in the bill. For this reason, 

VA does not support enactment of section 104. 

This concludes my statement, Mr. Chairman. I would be pleased to entertain any 

questions you or the other Members of the Subcommittee may have. 

f 

Prepared Statement of Raymond C. Kelley 

National Legislative Director, American Veterans (AMVETS) 

Chairman Hall, Ranking Member Lamborn, and Members of the Subcommittee: 

I am pleased to submit to this Committee on behalf of AMVETS our views on the 

‘‘Veterans Disability Benefits Claims Modernization Act’’ (Act). 

Section 101 of the Act will provide presumption of service-connection for veterans 

who were deployed in support of contingency operation with post traumatic stress 

disorder (PTSD). This would allow those who engage in combat with the enemy and 

diagnosed with PTSD to be granted presumption of a stressor for service-connection. 

AMVETS supports the spirit of this provision, however, due to the Department of 

Veterans Affairs’ high standard of proof for consideration of engaging in combat 

with the enemy it will be difficult in many circumstances for the veteran to verify 

their role in combat. Poor recordkeeping and servicemembers being moved from one 

unit to another during their deployment could, under current VA internal requirements, make it impossible for a veteran to prove they engaged in combat with the 

enemy. 

Therefore, AMVETS suggests that either the language be changed to more clearly 

define who and under what circumstances veterans would be granted presumption 

or amend section 1101, Title 38 United States Code to clarify who has engaged in 

combat and to what degree they must support their claim. This would take the subjective nature of the presumptive claim out of the adjudicator’s hands. 

AMVETS supports section 102 of the Act that will allow for parity between mental health disabilities and physical disabilities. Under the current rating schedule, 

VA decisionmakers often only focus on occupational impairment and not social impairment when awarding a 100 percent disability rating. AMVETS would support 

any provision that would require rating specialists to consider both mental and/or 

physical disabilities as grounds for disability ratings. 

AMVETS also supports the study of using codes that are being used by the medical and disability profession as a model for the VA rating code. There are less than 

800 diagnostic codes used by VBA and more than 10,000 ICD codes in use. Because 

of this, it will be imperative that some sort of cross reference be established to simplify the change. 

Concerning section 103, AMVETS supports the study concerning the work credit 

system within the VBA, and had testified in the past of the need for change in the 

current work credit system. AMVETS believes that with quality assurance added to 

the Systematic Technical Accuracy Review (STAR) program oversight of accuracy of 

decisions will improve the accountability system. 

AMVETS supports any effort to improve the quality of claims processing as presented in section 104. However, a study on the work management system may not 

be necessary if sections 103 and 105 are correctly implemented. 

AMVETS wholly agrees with the creation of certification of employees of the VBA 

who are responsible for processing claims as outlined in section 105. AMVETS has 

testified in the past that not only certification, but centralized training and continuing education are important to ensure timely and accurate claims processing. 

AMVETS believes a large portion of the claims disparities are related to not only 

the lack of certification but also the human factors that vary from one region to the 

next. Centralized training will remove a considerable amount of the personality that 

has been established in these regions. Also, in all medical-related fields continuing 

education is required. New medical discoveries can change the way a claim is developed. If the developer is unaware to the changes, the veteran will be denied a claim; 

Therefore, AMVETS supports the idea of continuing education training for VBA employees who handle claims. 

With regard to section 107, AMVETS has concerns not with outside agents developing claims, but with their ability to access information. VBA employees have access to documents that are not accessible by non-employees. Although the development phase of the claims process would be expedited, it would also increase the rate 


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of remands because of the claims that are improperly developed by those outside 

the VBA. 

AMVETS opposes the study and report on employing medical professionals to assist employees of Veterans Benefits Administration. This would build in redundancy 

in the system, because VBA staff already has access to medical professionals who 

can answer any questions. Most claims complications are legal in nature, not medical; therefore, the medical professionals would be giving legal not medical advice 

in many instances. 

AMVETS does not oppose section 109. 

As outlined in section 110, AMVETS has publicly supported the use of electronic 

claims filing. AMVETS must reiterate that Information Technology must be used 

throughout the entire claims process to shorten the claims process. 

AMVETS supports section 111 with exception to the substituting party may designate who receives the benefits of the original claimant. 

AMVETS continues to support the provision outlined in section 201. 

The matters relating to the United States Court of Appeals for Veterans Claims 

as outlined in sections 301 and 302 are supported both by AMVETS and the Independent Budget. 

Chairman Hall, this concludes my testimony. I am happy to respond to any questions the Subcommittee may have. 

f 

Prepared Statement of Rose Elizabeth Lee 

Chair, Government Relations Committee, Gold Star Wives of America, Inc. 

Thank you for this opportunity to submit a Statement for the Record on behalf 

of the members of Gold Star Wives of America, Inc. (GSW). 

GSW was founded in 1945 and is a Congressionally chartered Veterans Service 

Organization comprised of surviving spouses of military servicemembers who died 

while on active duty or as a result of a service-connected disability. GSW currently 

has approximately 10,000 members who are surviving spouses of those who served 

in World War II, the Korean war, the Vietnam War, the current wars in Iraq and 

Afghanistan and other smaller conflicts. 

I have read through the draft issue of the Veterans Disability Benefits Claims 

Modernization Act of 2008, and its provisions are well crafted and much needed. 

We are very happy that this proposed law specifically mentions survivors. Survivors have a unique set of benefits and a unique set of problems. 

GSW requested that a few of our members who have personal experience in dealing with the Department of Veterans Affairs claims system and professional experience in converting manual business systems to computer systems read the proposed 

law and make suggestions and comments. 

We are well aware that the Veterans Affairs claims system has a huge backlog 

of claims as well as a very long wait for processing. A large portion of this backlog 

is generated by having to file claims and appeals over and over again before they 

are properly and fully adjudicated. One surviving spouse’s husband filed a claim five 

times before he died, and she has filed the same claim twice since he died. If the 

claims had been fully and competently processed, no more than two claims should 

have been required. 

We fully support the provisions of this proposed legislation that call for proper 

training and certification of adjudicators. We would also like to see provisions that 

require that any rejected claim be reviewed by a knowledgeable, competent adjudicator before they are rejected or denied. 

We also fully support all efforts to inform the claimant of the type and quality 

of information that the VA adjudicators need to properly process a claim. 

Many of our servicemembers have participated in black or classified missions and 

in subsequent years they have developed illnesses as a result of those missions. In 

some instances portions of their service records are still classified or heavily redacted, and VA cannot adjudicate a claim without full access to those records. Some 

provision needs to be made to alleviate the situation whereby the claimant cannot 

receive compensation for his illness or injury because the records pertaining to it 

are classified or heavily redacted. It would seem reasonable to assume that if 

records are classified or heavily redacted, the claim should be adjudicated in favor 

of the claimant without the records that are usually required. The more cumbersome alternative would be that adjudicators to have a high enough security 

clearance to read the necessary records. 

In the last few years GSW has encountered many surviving spouses who have 

filed for Dependents Indemnity Compensation (DIC) and have had a significant 


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delay in receiving benefits. Some of these survivors have lost or nearly lost their 

homes and/or their credit ratings have been lowered before the claim was processed 

and benefits were awarded. Many of these claims were very routine, straight forward claims which should have been processed quickly and easily. 

Other surviving spouses have had to go without medical care or go heavily in debt 

to obtain medical care because the DIC claim was not processed expeditiously or the 

surviving spouse was not properly entered into the ChampVA system. 

GSW also has many members who are unaware that they are entitled to a military identification card for commissary and exchange privileges if their deceased 

spouse was 100 percent disabled veteran and they are eligible for DIC. These surviving spouses are not receiving the information or the required letter from the VA. 

Additionally, the personnel in the military who are supposed to issue the identification cards do not know how to get the information into the various computer systems as required and therefore cannot issue the identification cards. 

Temporary Aid and Attendance awards should be available for the surviving 

spouse and dependent children of a 100 percent totally and permanently disabled 

veteran or deceased veteran whose surviving spouse is entitled to DIC. These 

awards would be applicable in cases of catastrophic illness, surgeries where the anticipated length of recovery is greater than 10 days, chemotherapy, etc. Actual payments could be prorated to the actual recovery time involved. 

If the condition becomes permanent, the Aid and Attendance could be continued 

on a permanent basis. Surviving spouses and dependent children should be allowed 

to claim housing modifications if the condition is permanent and the modifications 

are necessary. 

Temporary Aide and Attendance is a real necessity for the surviving spouse and 

dependent children as there is only one parent and one adult in the household once 

the veteran dies. 

In reference to: 

(Page 14) Advisory Committee on Disability Compensation, GSW would like 

to have one of our well qualified members included on this Committee. The needs 

of family members and survivors also need to be addressed by this Committee. 

(Page 15) Title 1, section 102. ‘‘assemble and review relevant information relating 

to the needs of veterans with disabilities’’. Please add their families and survivors. The needs of families and survivors also need to be addressed. 

(Page 16) Title 1, section 102. ‘‘An assessment of the needs of veterans with respect to disability compensation’’. Please add their families and survivors. The 

needs of families and survivors also need to be addressed. 

(Page 21) Title 1, section 105. Employee Certification. This employee certification examination for adjudicators needs to include DIC claims and survivor 

benefits. 

(Page 24) Title 1, section 106. Annual Assessment of Quality Assurance Program. 

It is our understanding from comments made at other hearing that there is a 

great deal of difficulty involved in training and certifying adjudicators. One comment was made that only 27 percent of the adjudicators could pass the certification 

exam; another comment was that adjudicators remained in their positions for only 

about 2 years. With the vast amount of knowledge needed to perform adequately 

in these positions and with this difficulty in training and retaining adjudicators, 

some thought needs to be given to raising the grades of these employees and to creating upward mobility positions. Perhaps the adjudicators could be monetarily rewarded or promoted to the next level on an upward mobility path based on passing 

the examinations. 

Different regional offices often rate veterans with similar illnesses and injuries 

very differently. Hopefully the reports required by this legislation and the certification examinations will allow the regional offices to rate veterans with similar illnesses and injuries in a more equitable manner. 

(Page 29) Title 1, Sec 109. Assignment of Temporary Disability Ratings to 

Qualifying Veterans. 

When a claim is incomplete and a checklist is provided to the claimant will there 

be time constraints involved? If there are time constraints involved, can those time 

constraints be extended if, through no fault of their own, the claimant cannot comply with the time constraints? 

Veterans who have been declared terminally ill should be included in the provisions for Temporary Disability Ratings. There should be a specific set of procedures 

for terminally ill veterans. Pending claims should automatically be expedited without the need for a special request. 


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In the case of a terminal diagnosis stemming from a previously rated service connected disability, the veteran should be rated as 100 percent totally and permanently disabled from the date of the original claim. 

(Page 30) Qualifying Veteran. ‘‘(1) who has been discharged from active duty 

service for 365 days or less.’’ 

And on (Page 31) Termination of Temporary Rating (B) ‘‘The date that is 365 

days after the date of the veteran’s last separation or release from active duty.’’ 

The two dates specified above could be the same or very close to each other. Perhaps it would be better to specify under Termination of Temporary Rating that the 

Temporary Rating would be terminated 365 days after it was received or 365 after 

the first temporary compensation check was mailed. 

(Page 32) Sec 110. Review and Enhancement of Use of Information Technology at Veterans Benefits Administration. 

Security of online records should be a prime consideration. All access to those 

records should be logged and the reason for that access specified. Digital signatures 

should be provided for all access and a record kept of what information was accessed 

and why it was accessed. All HIPPA provisions should be used to safeguard the information in these records. 

A veteran should have access to his own records. A copy of the records should be 

provided to the veteran upon request without charge. If a surviving spouse requires 

access to the deceased veteran’s records, a copy of those records should be provided 

without charge. 

If there is incorrect information in the records, it should be corrected upon request 

of the veteran. 

If a veteran’s record is included in the registries (cancer, Agent Orange, Gulf War, 

etc.) the veteran should be advised that the record is being included in these registries and how the data in those registries will be used. 

If a veteran’s record is used for research all identifying data should be stripped 

from the record. If for some reason all identifying data cannot be stripped from the 

record, then written approval of the veteran to use the information in his records 

should be required. 

(Page 36) Sec. 111. Substitution in case of death of claimant. 

Minor dependent children should automatically be considered as co-claimants, if 

the claimant of record is not the custodial parent. This will ensure that the original 

claimant’s minor dependent children are not forsaken in lieu of a current spouse or 

in the cases of a guardianship or custodial grandparents. The dependent child or 

children’s financial interests are then protected until the reach the age of majority. 

f 

Prepared Statement of Richard Paul Cohen 

Executive Director, National Organization of Veterans’ Advocates, Inc. 

Mr. Chairman and Members of the Subcommittee: 

Thank you for the opportunity to present the views of the National Organization 

of Veterans’ Advocates, Inc. (‘‘NOVA’’) on the ‘‘Veterans Disability Benefits Claims 

Modernization Act of 2008.’’ 

NOVA is a not-for-profit § 501(c)(6) educational organization incorporated in 1993 

and dedicated to train and assist attorneys and non-attorney practitioners who represent veterans, surviving spouses, and dependents before the Department of Veterans Affairs (‘‘VA’’), the United States Court of Appeals for Veterans Claims 

(‘‘CAVC’’) and before the United States Court of Appeals for the Federal Circuit 

(‘‘Federal Circuit’’). 

NOVA has written many amicus briefs on behalf of claimants before the CAVC 

and the Federal Circuit. The CAVC recognized NOVA’s work on behalf of veterans 

when it awarded the Hart T. Mankin Distinguished Service Award to NOVA in 

2000. 

The positions stated in this testimony have been approved by NOVA’s Board of 

Directors and represent the shared experiences of NOVA’s Members as well as my 

own fifteen-year experience representing claimants at all stages of the veteran’s 

benefits system from the VA Regional Offices to the Board of Veterans’ Appeals to 

the CAVC as well as before the Federal Circuit. 

Overall, NOVA supports the provisions contained in the ‘‘Veterans Disability Benefits Claims Modernization Act of 2008’’ (‘‘the Act’’). The legislators and their staff 

are to be commended for their concerted efforts to fix and update the VA’s benefits 

system. However, NOVA has suggestions regarding various sections. Accordingly, 

this statement will deal with the sections of the Act seriatim. 


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NOVA recognizes the intent behind section 101; that is, to provide significant assistance to veterans who have been diagnosed with PTSD after military service and 

who were in a combat zone where they were exposed to ‘‘stressors’’, but who have 

difficulty proving they ‘‘engaged in combat with the enemy’’ due to the nature of 

their military service. However, as it exists now, section 101 will not bring about 

its intended purpose. At present, 38 U.S.C. § 1154(b) does not provide a presumption 

that a veteran is entitled to benefits for a service connected injury or disorder even 

for those veterans who the VA concedes engaged in combat with the enemy. Rather, 

1154(b) has been interpreted as providing only a presumption of service incurrence 

which still requires proof of medical nexus, Dalton v. Nicholson, 21 Vet. App. 23 

(2006). 

In order to accomplish the intended result, section 101 needs the following addition at line 22 of p. 6: 

‘‘(3) by adding at the end the following new paragraph: 

‘(3) In the case of a veteran who has been diagnosed with PTSD after military service and who engaged in combat with the enemy as defined in (2) 

above, a connection between PTSD and active military service shall be presumed and may be rebutted only by clear and convincing evidence to the 

contrary.’ 

It would be an obvious inequity to apply this liberalizing change only to pending 

claims, thus excluding veterans who saw considerable combat in a theater of combat 

operations, but are unable to prove it. Accordingly, the effective date provisions, p.6, 

line 24, et.seq., should state that this section is to be applied retroactively. 

Concerning section 102, NOVA supports adjustment of the schedule of ratings and 

ensuring parity between the rating of mental and physical disabilities, especially regarding total disability. Additionally, NOVA supports the Veterans’ Disability Benefits Commission’s two specific recommendations (4.1 and 7.6) that veterans receive 

an immediate 25 percent increase in disability payments for loss of or impairment 

in quality of life. Accordingly, NOVA recommends inserting a new section 102(b) 

which would specifically require a 25 percent increase in current disability payments to reflect the loss or impairment in quality of life and that proposed section 

102(b) be renumbered 102(c). 

Concerning section 102(d), NOVA supports the creation of an Advisory Committee 

on Disability Compensation and suggests that the eighteen Committee members include 1–2 veteran advocates from the private sector. Such inclusion will ensure that 

the issues integral to veterans’ disability compensation are considered from all relevant perspectives. 

NOVA supports, generally, sections 103 and 104, regarding the VA’s work credit 

and work management systems, respectively and supports the suspension of the 

work credit system upon failure of the VA to implement a replacement system within a stated timeframe. Although it may seem draconian to require suspension of the 

work credit system, NOVA has, by citing to the 2005 OIG report in our prior testimony, highlighted the effect of rewarding the quantity versus quality of decisions 

made and its impact on the VA’s backlog. For obvious reasons, NOVA recommends 

that the mandated studies should be performed by either the Office of Inspector 

General or the Government Accounting Office, rather than by the VA. 

NOVA supports section 105 to the extent that it requires certification and training of VBA employees. NOVA notes an apparent typographical error at p.21, line 

23 which should read ‘‘§ 7735 Employee Certification and Training.’’ Substantively, 

NOVA recommends inserting a specific training requirement by amending Line 25, 

et seq, to read as follows: ‘‘The Secretary shall provide appropriate semi annual 

training sessions of 10 hours each involving VA regulation and Court decisions for 

appropriate employees and managers of the Veterans Benefits Administration and 

shall require such employees. . . .’’ 

NOVA supports section 106, Annual Assessment of Quality Assurance. 

Although NOVA generally supports section 107, Expedited Treatment of Fully Developed Claim, because of the value of expeditiously deciding claims that require no 

further development, NOVA is wary of the language contained in page 28. Specifically NOVA foresees the likelihood that VA may utilize this language to support the 

assertion that the unsuspecting veteran waive the right to adequate development 

of the claim. In many cases, a veteran who is not represented by an attorney or a 

well-trained veteran’s advocate is not fully aware or informed of the legal significance of a waiver. To require the veteran waive further assistance or development 

is a dangerous, ill-advised procedural short-cut. 

NOVA questions the feasibility of section 108, the use of medical professionals to 

assist VBA employees, because of the danger that the medical professionals may— 

by default and, or contrary to the intent and language of the statute—become the 


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person who rates and evaluates the claim. Moreover, there is a strong likelihood 

that the selected medical professional will be from QTC, a company with which VA 

contracts to conduct medical evaluations. However, veterans repeatedly report to 

NOVA Members that QTC-employed medical professionals perform medical examinations that tend to be inadequate, deficient, unprofessional and, or biased. Thus, 

if medical consultants are to be utilized, the statute should specifically require that 

all communication (written and oral) between VBA employees and the medical consultants be documented, available in the VA claims file, and the veteran be notified 

that such consultation was part of the development and, or adjudication of their 

claim. 

While suggesting the use of medical consultants, Congress should also recommend 

that the VA implement a ‘‘treating physician’s rule’’ similar to that which as has 

been enacted by the Social Security Administration (‘‘SSA’’). The SSA treating physician rule contained in SSR 96–2p: http://www.ssa.gov/OPlHome/rulings/di/01/ 

SSR96–02-di-01.html provides that if a treating source’s medical opinion is well-supported and not inconsistent with the other substantial evidence in the record, then 

it must be given controlling weight, i.e., it must be adopted. 

Recognition by the VA that treating physicians have unique insight into the veteran’s medical condition(s) is long overdue. A treating physician rule would be beneficial to both the veteran and the VA. The veteran benefits because the opinion of 

the medical professional with the most complete knowledge about the veteran’s condition would be given ‘‘greater weight’’ and would provide the VA decisionmaker 

with valuable information regarding the etiology and, or severity of the veteran’s 

medical condition. The treating physician would also help counter the opinion of a 

VA physician who examined the veteran on only one occasion and typically for less 

than 30 minutes. The VA would also benefit because claims for VA benefits would 

be decided more efficiently since any issue regarding conflicting medical reports 

would be resolved easily by using a treating physician rule. 

Partial disability ratings which are contained in section 109 are supported by 

NOVA. 

NOVA supports that portion of section 110 which provides for automated decision 

support software and electronic examination templates. However, although NOVA 

questions the utility of utilizing Artificial Intelligence, the ability of the veteran to 

check on the status of a claim on the web, contained in (b)(7) is a good idea. 

Section 111, involving substitution where claimant dies while a claim is pending 

is long overdue. NOVA assumes that the intent is to apply § 5121A to claims which 

are pending in the Court or before the VA, and to eliminate uncertainty in that regard, recommends that the language ‘‘before the VA or a Court’’ be inserted at page 

36, line 6, after ‘‘adjudication.’’ NOVA also recommends deleting the language at 

lines 6–7, ‘‘the person who would receive any accrued benefits’’ and substituting the 

language ‘‘the person who would receive any accrued benefits or the adult children 

of the claimant’’. This revision would hopefully correct the current disparate treatment experienced by adult children when their mother or father has predeceased 

the veteran, thereby precluding any family member from being eligible to receive 

accrued benefits. 

In view of its status as an Article I Court, and the resulting need for Congressional oversight, NOVA supports the reporting requirements imposed upon the 

CAVC which are contained in section 201. Additionally, NOVA recommends that the 

court be required to report on the time that elapses from when the case is fully 

briefed until the Court renders its disposition. 

NOVA also supports section 202. Moreover, NOVA views the deleted provisions 

requiring the Court to decide all assignments of error raised by an appellant as appropriate and essential. This provision is appropriate because of the CAVC’s status 

as an Article I Court, and is essential because, as NOVA has asserted on previous 

occasions, the CAVC’s practice of narrowly deciding appeals is a major contributing 

factor to veterans’ repeat visits to the Court and to the Court’s ever-increasing caseload. This provision may appropriately be founded on the distinction between this 

Article I Court which renders narrow decisions in cases which frequently return to 

the Court raising the same errors, and Article III Courts which tend to decide appeals containing one issue which is unlikely to return. Finally, to deal with the 

Court’s concern about unnecessarily being required to decide Constitutional claims 

the following language could be inserted in the provision dealing with the Best/ 

Mahl issue: ‘‘except that Constitutional arguments need not be decided if the appeal 

could be resolved by deciding the other assignments of errors raised.’’ 

f 


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Prepared Statement of Richard Weidman 

Executive Director for Policy and Government Affairs 

Vietnam Veterans of America 

Vietnam Veterans of America (VVA) is pleased to submit this Statement for the 

Record concerning the discussion draft of a bill to be entitled the ‘‘Veterans Disability Benefits Claims Modernization Act of 2008.’’ 

Certainly, no one can object to the purpose of this legislation: ‘‘to ensure the accurate and timely delivery of compensation to veterans and their families and survivors.’’ In its findings, Congress has identified the crux of the problem: ‘‘The paperbased, labor-intensive [system of rating claims] employed by the Department [of 

Veterans Affairs] leaves many disabled veterans and survivors waiting months or 

years to receive the benefits they have earned.’’ 

Nor can one dispute the premise of this bill: that the VA ‘‘must modernize the 

claims processing system of the Veterans Benefits Administration to make it a firstclass, veteran-centered system that uses 21st century technologies and paradigms 

and reflects the dignity and sacrifices made by disabled veterans, their families, and 

survivors.’’ 

However, we caution that any legislation needs to take into account two factors. 

First, what we will call the ‘‘null hypothesis,’’ that the laws as currently written are 

not inadequate; rather, the culture, processes, and regulations of the VBA, and its 

personnel, are the culprits behind the unconscionably long list of claims awaiting 

adjudication and the time it takes to rate them. And second, that the regulation rewrite project currently being undertaken by VA personnel may embrace many of the 

recommendations of this legislation, as well as offer other recommendations that 

ought to be included in any legislation enacted by Congress. 

Be that as it may, we will offer comments relevant to various sections of the proposed legislation. 

Section 2. Findings 

(1) In referring to the ‘‘nearly 24,000,000 American veterans,’’ it is perhaps more 

appropriate to say ‘‘veterans in America.’’ Currently foreign nationals serving in the 

American military number in the hundreds if not thousands; upon discharge from 

active service, they do not automatically become ‘‘American veterans.’’ 

(12) Of the 345,713 veterans whom the Veterans Health Administration treated 

for Post Traumatic Stress Disorder (PTSD), how many have filed claims for disability compensation? How many were informed by VA staffers that they, in fact, 

could file? 

(16) Nowhere in this section is it noted that the VA fails to consider cost of living 

differentials. Other Federal departments in fact do use locality pay. 

Title I—Matters Relating To Modernizing the Disability Compensation System of [the] Department of Veterans Affairs. 

Sec. 102. Study on Readjustment of Schedule for Rating Disabilities. 

VVA has no objection for the Secretary of Veterans Affairs to commission a study 

‘‘on adjusting the schedule for rating disabilities . . . so as to base the schedule on 

standards, practices, and codes in common use by the medical and disability 

profession[s].’’ 

While this section notes that the Secretary may enter into a contract (page 7, line 

14), this seems at odds with the language on page 9, lines 5–9, to wit: ‘‘In conducting the study . . . the Secretary shall consult with appropriate public and private entities, agencies, and veterans service organizations, and shall employ consultants.’’ 

VVA agrees with the determination of previous reports of relevant commissions 

that the ratings schedule should be adjusted ‘‘to take into account the loss of quality 

of life and loss of earnings that result from specific disabilities.’’ 

(1) On line 12, the word ‘‘profession’’ should be plural: ‘‘. . . the medical and disability professions that. . .’’ 

(2)(C) We question, however, why direct a study to ‘‘examine whether disparities 

exist’’ with PTSD and other mental disabilities and not with other disabilities? 

(E)(iii) We would request clarification of this provision regarding ‘‘the extent to 

which benefits for veterans may be used to encourage veterans to seek and undergo 

vocational rehabilitation.’’ It seems to us that this language is loaded for misinterpretation. 

(5)(B) There seems to be a misstatement of fact here, inasmuch as 1155 does not 

currently consider ‘‘the loss of quality of life.’’ Certainly, any fix, or ‘‘modernization’’ 

of the disability benefits system needs to incorporate a measure to embrace quality 

of life. 


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(5)(H) VVA agrees with providing, ‘‘to the maximum extent possible, the benefit 

of the doubt to veterans . . . in the absence of official military records pertaining 

to the service-connection of a veteran’s disability, and in particular, of post traumatic stress disorder, when a determination of service-connection would be consistent with the duties, conditions, and hardships of service in the Armed Forces.’’ 

More importantly to note, however, is that the regulations pursuant to section 1154 

of title 38, United States Code, are in fact ‘‘consistent.’’ The problem lies in that 

they are not applied consistently. 

(b)(1) Requiring the VA Secretary to submit to Congress ‘‘a plan to readjust the 

schedule for rating disabilities’’ in 120 days imposes a very tight deadline. If VA personnel are to get it right and do it right the first time, the VA must be accorded 

a more reasonable amount of time in which to prepare this plan. 

(b)(1)(A) Aligning the schedule with ‘‘best practices’’ needs leeway in the instance 

that a new treatment modality requires testing before the VA can consider employing it. 

(b)(1)(D) We are not quite sure just what the term ‘‘automated’’ means. We do believe, however, that a creative use of modern electronic technology can be applied 

in the adjudication of claims, particularly in the realm of ensuring that all facets, 

or sections, of a claim are properly completed so that a rater can make a determination as to the viability of a claim and what percentage of disability ought to be 

granted. 

(c)(2) The 3-year timeline for when the VA Secretary intends to readjust the 

schedule is, we believe, unrealistic. Because of the potential for massive changes, 

for the need for notice and comment periods, this timeline should be extended based 

on input from VHA personnel and VSO service representatives who can offer their 

expert opinion. 

546. Advisory Committee on Disability Compensation. 

VVA is particularly pleased as to the charge to the VA Secretary, who ‘‘shall seek 

to ensure that members appointed to the [Advisory] Committee [on Disability Compensation] include individuals from a wide variety of geographic areas and ethnic 

backgrounds, individuals from veterans service organizations, individuals with combat experience, and women.’’ This is a critical provision if the work and determinations of said committee are to be respected by the veterans community at large. 

(a)(2)(B) Language should be changed from ‘‘or’’ to ‘‘and/or’’ to wit: ‘‘have experience with the provision of disability compensation by the Department and/or are 

leading medical or scientific experts in relevant fields.’’ 

(b)(2)(B) VVA believes that language pertaining to dependents and survivors ‘‘of 

veterans who have served in a theater of combat operations’’ needs to be included 

in this provision; also, to add ‘‘. . . veterans who have served in a theater of combat 

operations or area of hostilities as determined by DoD and the VA.’’ 

(c)(1) A clause on benefits due the survivors of veterans ought to be included in 

this section. 

Sec. 103. Study on Work Credit System of Veterans Benefits Administration. 

(b) There is too much wiggle room in language that specifies only that ‘‘the Secretary shall consider the advisability of implementing—’’ This provision must be 

made mandatory for it to be effective. 

(b)(3) Why note two ‘‘classes’’ of veterans, the ‘‘severely injured’’ and the ‘‘very severely injured’’? What about others who have been disabled to a lesser, or even 

greater, extent, e.g., ‘‘catastrophically injured’’? 

(c)(1) We are not convinced that a ‘‘new system’’ is required ‘‘for evaluating the 

work production of employees’’ of the VBA. The bottom line is that the VBA needs 

enough experienced raters—and supervisors—to handle the ever-increasing caseload. And these employees need the training and supervision to enable them to be 

productive, to meet realistic goals. Now, raters seemingly are caught between the 

proverbial rock and hard place: they are asked to accurately rate more cases faster. 

(d)(1)(C) Potential danger lurks in this language. As VVA has testified before the 

Veterans’ Disability Benefits Commission, the ‘‘null hypothesis’’ needs to be considered: What if the current system of laws and regulations really is valid and workable, but that the issue is, and problems arise because, the system is improperly 

implemented? 

We might suggest adding language that directs VBA supervisors to properly 

triage cases for adjudication. For instance, a relatively simple claim for tinnitus that 

comes in with all fields appropriately filled out ought not take more than 60 days 

to be processed fully. 


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We might suggest, too, that the VBA be required to use experienced raters to handle complex, multi-faceted cases, with teams of raters attuned to mental health 

issues assigned to handle PTSD and other mental health claims. 

Sec. 104. Study on Work Management System. 

In this section, VVA harkens back to our null hypothesis. The VBA already has, 

but does not use, ‘‘a simplified process to adjudicate claims’’ [(b)(3)]. The VBA also 

has laws, rules, and regulations for ‘‘rules-based applications and tools for processing and adjudicating claims efficiently and effectively’’ [(b)(5)]. 

Attempting to develop ‘‘methods of reducing the time required to obtain information from outside sources’’ [(b)(6)] is complicated by the fact that stressor research 

is a major problem, one that cannot be ‘‘fixed’’ by a prescription in a provision. 

Sec. 105. Certification and Training of Employees of [the] Veterans Benefits 

Administration Responsible for Processing Claims. 

7735. Employee Certification. 

(b) VVA suggests that the Secretary shall require all employees and managers, 

not only ‘‘appropriate employees and managers . . . responsible for processing 

claims for benefits under the laws administered by the Secretary’’ to take a certification examination. VVA submits, further, that VSO, state, and county service representatives should be required to take a certification exam as well. 

Also, just what does the term ‘‘processing’’ mean here in context? Does this include the copy clerks who run the copy machine? 

(c) Again, let’s not sweep out all facets of the current disability benefits system. 

Part of the consideration must be questions as to the efficacy of implementation of 

laws and regs currently on the books. 

(c)(2)(B) This needs to be rewritten into readable English. After reading it and rereading it, we still are not quite sure as to its meaning. 

Sec. 106. Annual Assessment of Quality Assurance Program. 

(c)(1)(E) Assessing the performance ought not be limited to employees and managers of the VBA. Contractors and consultants should be added to this provision. 

Sec. 107. Expedited Treatment of Fully Developed Claims and Requirement 

for Checklist to be Provided to Individuals Submitting Incomplete 

Claims. 

5109C. Expedited Treatment of Fully Developed Claims. 

(a) A fully developed claim ought to take well under 90 days to adjudicate. Perhaps this needs to read to the effect that initially such a claim must be completed 

within 90 days. Within 2 years(?), however, this must be reduced to 60 days, an eminently reasonable amount of time. 

(b) What if claimant waives his/her rights? 

(c)(1)(A) The assumption that a claim will be fully developed if a claimant has ‘‘received assistance from a veterans service officer, a State or county veterans service 

officer, an agent, or an attorney’’ is misplaced. Such representation simply does not 

ensure that a claim is fully developed. The reality is that just as there are service 

officers, agents, and attorneys who are competent and dedicated, there also are service officers, agents, and attorneys whose competence and knowledge must be questioned. (This is another reason why these folks should be required to take, and pass, 

a certification exam.) 

(c)(1)(B)(2) In addition to said certification being signed by a claimant, his/her 

service representative should also be compelled to sign as well, sort of like your accountant does who prepares your taxes. 

Sec. 108. Study and Report on Employing Medical Professionals to Assist 

Employees of [the] Veterans Benefits Administration. 

(a) It should be noted that the VBA already uses the services of these professionals. And the term ‘‘medical professionals’’ ought not be repeated four times in 

the first sentence in this clause. 

Sec. 109. Assignment of Temporary Disability Ratings to Qualifying Veterans. 

1156. Temporary Disability Ratings. 

VVA endorses the concept of assigning temporary disability ratings. Because this 

provision has the potential for abuse, it must be carefully structured and enforced. 

We do question, though, why a ‘‘qualifying veteran’’ is one who ‘‘has been discharged 

from active duty service for 365 days or less’’ [(b)(1)]. Why limit this to 1 year? 


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(d)(2) Placing a 30-day time limit for VA personnel to ‘‘review each pending claim 

for disability compensation . . . [to] determine whether the claimant submitting 

each such claim is entitled to a partial disability rating’’ is a bit restrictive and 

could prove quite onerous and could even hamstring the VA. How many such claims 

are there? 

Sec. 110. Review and Enhancement of Use of Information Technology at 

Veterans Benefits Administration. 

(b)(1) VVA endorses the use of ‘‘rules-based processing and information technology 

systems and automated decision support software at all levels of processing claims.’’ 

Appropriate software can, we believe, be developed expeditiously—or can be adapted 

from software currently available. Even with the inevitable kinks in introducing 

such IT into the claims adjudicating and rating process, this is an initiative that 

ought to be undertaken. It is past time for the VBA to enter the 21st century. 

(b)(3) ‘‘Survivors’’ needs to be added to the litany of active-duty members of the 

Armed Forces, veterans, and their dependents. 

(b)(7) VVA is particularly supportive of making available ‘‘on the Internet Website 

of the Department, of a mechanism that can be used by a claimant to check on the 

status of any claim submitted by that claimant.’’ 

Sec. 111. Treatment of Claims Upon Death of Claimant. 

5121A. Substitution in Case of Death of Claimant. 

(a) VVA endorses the proposal that, if ‘‘a veteran who is a claimant dies while 

a claim for any benefit under a law administered by the Secretary is pending and 

awaiting adjudication, the person who would receive any accrued benefits due to the 

veteran . . . shall be treated as the claimant for the purposes of processing the 

claim to completion.’’ We believe, however, that placing a cut-off of 1 year from the 

date of the veteran that such person may only submit new evidence in support of 

the claim is too restrictive. For example, it can take far longer than 1 year to obtain 

a copy of a ship’s deck log for a specific date. 

(b) What if two individuals are eligible? 

Title II—Matters Relating to United States Court of Appeals for Veterans 

Claims. 

7288. Annual Report 

(10) With regard to ‘‘the number of cases pending longer than 18 months,’’ the 

Court should be required to enumerate the reasons why these cases have been pending for so long. Simply providing a number doesn’t tell the whole story. 


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POST-HEARING QUESTIONS AND RESPONSES FOR THE RECORD 

Committee on Veterans’ Affairs 

Subcommittee on Disability Assistance and Memorial Affairs 

Washington, DC. 

May 19, 2008 

Mr. Bradley Mayes 

Director 

Compensation and Pension Service 

Veterans Benefits Administration 

U.S. Department of Veterans Affairs 

810 Vermont Avenue, NW. 

Washington, DC 20420 

Dear Mr. Mayes: 

Thank you for your appearance before the House Committee on Veterans’ Affairs 

Subcommittee on Disability Assistance and Memorial Affairs at the ‘‘Legislative 

Hearing on the Veterans Disability Benefits Claims Modernization Act of 2008, H.R. 

5892’’ held on April 10, 2008. As noted during the hearing additional questions for 

the record would be provided. Please answer the enclosed questions for the record 

by June 30, 2008. 

In an effort to reduce printing costs, the Committee on Veterans’ Affairs, in cooperation with the Joint Committee on Printing, is implementing some formatting 

changes for material for all full committee and subcommittee hearings. Therefore, 

it would be appreciated if you could provide your answers consecutively on letter 

size paper, single-spaced. In addition, please restate the question in its entirety before the answer. 

Due to the delay in receiving mail, please provide your response to Ms. Megan 

Williams by fax at (202) 225–2034. If you have any questions, please call (202) 225– 

3608. 

Sincerely, 

John J. Hall 

Chairman 

Questions for the Record 

The Honorable John J. Hall, Chairman 

Subcommittee on Disability Assistance and Memorial Affairs 

House Veterans’ Affairs Committee 

April 10, 2008 

Veterans Disability Benefits Claims Modernization Act of 2008, H.R. 5892 

Question 1: Thank you for sharing the IBM study with us that I requested at 

a previous hearing. Based on their gap analysis the IBM consultants made several 

short- and long-term recommendations that bear similarities to many provisions to 

this bill. Firstly, do you agree with all of these recommendations? If so, what are 

you doing to institute the IBM recommendations? What recommendations (if any) 

don’t you agree with? Why? 

Response: In concept, the Veterans Benefits Administration (VBA) agrees with 

all of the IBM recommendations. IBM provided a broad outline for implementation 

in the Short Term Action Plan, Long Term Action Plan document. VBA is developing a more detailed implementation plan and assigning responsibility for each of 

the short-term recommendations to specific staff. Responsibility for the recommendations includes developing an implementation approach and milestones, obtaining necessary resources/input from other offices, and briefing senior VBA leadership on the status of implementation. The long-term recommendations are being incorporated as VBA redesigns its processing in connection with its paperless initiatives. 

Question 2(a): The studies you have ongoing regarding quality of life and earnings capacity losses and transition payments is on a fast-track for completion by 

July 2008, as I understand it. These studies will be presenting VA with options from 

which to choose. Do you intend to vet those options internally and externally? How 

will you judge their appropriateness, feasibility and effectiveness? 


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Response: The Department of Veterans Affairs (VA) will vet options presented 

by the contractor for the payment of quality of life, earnings loss, and transition 

payments internally with those entities that would be affected by such a processaltering change, e.g., Veterans Health Administration (VHA), VBA, the Office of the 

General Counsel and the Board of Veterans’ Appeals (Board). It will be a comprehensive task to determine which of the options would be feasible to implement, 

both in terms of training and information technology (IT) requirements, and in 

terms of any statutory or regulatory changes that would be required. Once VA identifies feasible options that would best serve the needs of veterans, it will be vetted 

through our external stakeholders. 

Question 2(b): In your testimony you mention that reliance on the ICD, DSM– 

IV and AMA Medical Guides will make the rating system unnecessarily complex. 

Yet this is a recommendation of the IOM, the VDBC and Dole-Shalala to some extent. How do you reconcile your position on readjusting and updating the VASRD 

with the opinion of so many other expert organizations? 

Response: VA has used its Schedule for Rating Disabilities (VASRD), with modifications over time, since at least 1933. It contains approximately 800 unique diagnostic codes used to identify disabilities. The CNA Corporation, in its study for the 

Institute of Medicine and the Veterans’ Disability Benefits Commission, found that 

there was ‘‘general parity overall’’ when comparing the earnings and benefits of disabled male veterans with the earned income of similarly situated, non-disabled veterans. The ICD and DSM codes are composed of thousands of possible codes. We are 

gathering information concerning the implications of adopting such a system; however, we are concerned that increasing the number of diagnostic codes in the 

VASRD would introduce additional complexity into the VA disability evaluation system. The Compensation and Pension Service recently met with Dr. Robert 

Rondinelli, Medical Editor of the Sixth Edition of the AMA Guides to the Evaluation 

of Permanent Impairment. We also look forward to the findings and recommendations from the study of the VA disability compensation system. 

Question 2(c): I know that you have contracted out to study quality of life, loss 

of earnings capacity and transition payments. Nonetheless, I still must ask, what 

is VA’s plan for revising and updating the VASRD? Do you (VA) not think it needs 

to be readjusted, updated and aligned with modern medical concepts and practices 

on a comprehensive basis? 

Response: The rating schedule is an evolving document, and VA understands the 

need to readjust and update it as medical understanding dictates. To that end, we 

are in the process of recruiting additional physicians for our regulations staff to assist in making timely changes to the schedule on a regular basis. 

VA fully supports the concept that the VASRD should be current and aligned with 

modern concepts and practices. We are committed to achieving that goal. VA is revising the rating schedule as the need arises. The rating schedules for 12 of the 16 

body systems has undergone a comprehensive revision over the past several years, 

and that revision was published in the Federal Register for public comment prior 

to final issue. The rating schedules for the additional body systems are either awaiting publication in the Federal Register or are in concurrence within VA. Additionally, VA has in concurrence revisions to the neurological system schedule for evaluating traumatic brain injuries. 

Question 3: It is clear to me that VBA needs to end or revise its work credit system immediately. It is task-based, but not outcome-oriented and seems to the faulty 

underpinning for the lack of accountability in the claims processing system. This 

may have been a good concept at some point, but as the backlog increases and 

delays mount, it is no longer a suitable means to track your work output/production 

or success either in processing claims or as a means of holding employees or managers accountable. The Veterans Health Administration hospitals must comply with 

several outcomes based protocols. Have you looked at how VHA does its oversight 

or other workflow accountability models? Is there any room for adaptability to the 

VBA, especially as you move to a Virtual VA platform and other ‘‘One VA’’ initiatives? 

Response: VA has a process in place to hold both employees and regional office 

directors accountable for work production. Depending on their position, employees 

are responsible for specific tasks within the claims process and are evaluated on 

performance of those tasks. Conversely, regional office directors are evaluated on 

outcome measures of station output and quality of total claims processed. VA evaluates both individual employee performance and director performance against national performance standards established for their respective positions. 

We will look at the VHA methods you have mentioned, to determine to what extent they are transferable. 


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Question 4(a): You disagree with section 107 of the bill indicating that section 

107(a) is duplicative of what VA is currently doing, which was intended to deal with 

some of the issues surrounding the VA’s duty to notify—please describe your fasttrack procedures. Who uses it and how is it activated? 

Response: In certain situations, VA is able to fast-track claims to improve the 

efficiency of benefits delivery. When a Veterans Service Center employee reviews 

evidence submitted with certain claims and observes that it is adequate to grant the 

benefit sought, they can immediately refer the claim for a decision. In addition, letters that fulfill VA’s duty to inform and assist under the Veterans Claims Assistance Act (VCAA), as codified at 38 U.S.C. §§ 5103 and 5103A, include attachments 

describing the evidence or action(s) needed to fully develop a claim. The letters also 

encourage claimants to complete and return an enclosed VCAA Notice Response, in 

which the claimant can notify VA that they have no further information to submit, 

and that VA should decide the case as soon as possible, after all required development is completed, rather than waiting 30 days, as required by regulation. Further, 

VA routinely expedites applications received from such claimants as former prisoners of war, the homeless, the terminally ill, and veterans who served in Operation 

Enduring Freedom or Operation Iraqi Freedom. 

Question 4(b): It seems that your main concern with section 107(b) is that the 

court may interpret it to expand VA’s duty to assist and notify. You inform that 

there are three types of claims that VBA receives. Doesn’t it make sense to develop 

a checklist that is generic enough to use for every claim and can be made specific 

enough to properly inform the veteran of what he is expected to give to the VA to 

help adjudicate his claim? I believe your personnel already go through a mental 

checklist in order to develop claims anyway. In fact your development is a form of 

pre-adjudicating because as you stated before, if there is enough evidence to rate 

a claim, you will. When there is not, VCAA notice goes and I believe at that point 

the veteran is entitled to and VA should be required to inform what is needed to 

adjudicate the claim. 

Response: The VCAA letter already informs claimants what information and evidence is needed to substantiate their claims, as well as what claimants need to provide to substantiate their claims and what VA will obtain. The letter also asks 

claimants to provide VA with any pertinent evidence in their possession. The computer application used to generate the VCAA/development letters creates a checklist 

for VA employees to attach to the claims folder. The checklist summarizes the claimant’s application, shows the pending type and source of development, and shows the 

date followup action should be taken. The checklist is automatically updated each 

time an employee performs a subsequent development action or receives evidence. 

Development on the claim is complete when all of the evidence is either received 

or the time limit for submission of evidence has expired. 

This checklist is not given to the claimant because it would be redundant of information already in the VCAA letter. The checklist would also require explanation to 

be meaningful thus lengthening the letter. Mandating a checklist that would provide ‘‘a detailed description of information or evidence required to be submitted by 

the claimant to substantiate the claim,’’ and communicates effectively is difficult 

and could not be provided at the initial point in the claims process, when the VCAA 

requires VA to provide notice, because VA does not yet know what kinds of specific 

evidence are needed to substantiate the claim. Also, in light of the recent decision 

in Vazquez-Flores, requiring VA to notify an increased-rating claimant of the criteria 

necessary for a higher rating listed under a previously assigned or cross-referenced 

diagnostic code, when those criteria would not be satisfied by the claimant demonstrating that their disability generally has worsened or adversely affected his occupation and life, the utility of a checklist becomes even more problematic and unlikely to withstand court scrutiny. 

Question 5: Would you elaborate on the difference between prestabilization and 

temporary ratings and where I can find the authority for each, either in statute or 

regulations? Would receipt of temporary rating impede the final rating process or 

decision for a veteran’s claim? 

Response: Prestabilization Ratings: Under 38 CFR § 4.28, VA will assign a 

prestabilization rating of 50 percent or 100 percent for severe symptoms of an 

unstabilized injury or disease or unhealed or incompletely healed injury or wound. 

Prestabilization ratings are assigned for the 12-month period immediately following 

separation from military service and provide a period of benefits during which the 

unstabilized or incompletely healed injuries are expected to stabilize or heal completely. Prestabilization ratings are provided to assure earliest payment to veterans 

separated from service who have a significant disability at a time when they are 

most likely in need and least likely to be self-sufficient. A mandatory examination 

is to be scheduled not earlier than 6 months nor later than 12 months following the 


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date of discharge. If, as a result of the examination findings, a reduction in evaluation is warranted, the prestabilization evaluation will continue until the last day of 

the 12th month following discharge or the expiration of the 60-day period provided 

under 38 CFR § 3.105(e) for reduction in evaluation, whichever is later. 

Temporary Total Ratings: 

Hospitalization: Under 38 CFR § 4.29, VA will assign a temporary total 

evaluation when a service-connected condition requires hospitalization for 

a period in excess of 21 days for treatment or observation and a 100 percent 

rating cannot be assigned under other provision of the rating schedule. The 

temporary total rating is effective the first day of hospitalization and continues through the last day of the month during which hospital discharge 

occurred. If the treatment during hospitalization requires a period of convalescence, this evaluation may be continued up to 6 months. The effective 

date of termination of this temporary period of total evaluation is assigned 

prospectively and not subject to the due process provisions of 38 CFR 

§ 3.105(e). 

Convalescent periods: Under 38 CFR § 4.30, VA will assign a temporary 

total evaluation, without regard to other provisions of the rating schedule, 

when it is established by competent medical evidence that a period of convalescence is required following hospital care, surgery or treatment requiring immobilization by cast of one or more major joints, for a service-connected disability. This temporary total evaluation for convalescence is effective the date of hospital admission or outpatient treatment and may be continued for a period of up to 1 year. The effective date of termination of this 

temporary total evaluation is assigned prospectively and is not subject to 

the due process provisions of 38 CFR § 3.105(e). 

The assignment of prestabilization ratings or temporary total evaluations under 

either 38 CFR § 4.28, 4.29 or 4.30 creates no impediment to the final rating process 

or decision on a veteran’s claim. 

Question 6(a): In 2006, approximately 250,000 veterans and survivors began receiving compensation, pension, and DIC benefits. Can you tell us how many of the 

total universe of compensation claims applications received (approximately 600,000) 

were denied? How is the VA currently keeping track of denied claims? Of the nearly 

1 million claims you are expecting to receive in FY08, what percentage based on 

past figures do you anticipate will be claims for adjustments and how many will be 

original claims? How will you track the denials? 

Response: We are unable to provide the number of compensation claims that 

were denied in 2006. VA does not track denials because of the complicated nature 

of compensation claims. Claims for service connection may be for one disability or 

many disabilities. When more than one disability is claimed, some disabilities may 

be granted, and others denied. A veteran may also reopen a denied claim and provide additional evidence that allows VA to grant service-connection. Additionally, 

service connection may be granted, but the evaluation assigned is 0 percent or does 

not result in an increase to the veteran’s combined evaluation. 

In fiscal year (FY) 2006, VA received more than 806,000 compensation claims. Of 

those received 280,000 were original claims from first time-filers and 525,000 were 

reopened claims for increased compensation or reconsideration of a previously denied claim. During FY 2006, VA completed almost 800,000 compensation claims, including 272,500 original claims and 526,000 reopened claims. 

VA estimates that we will receive approximately 855,000 compensation claims in 

FY 2008. In both FY 2006 and FY 2007, approximately 35 percent of receipts were 

original claims. If that holds true for FY 2008, we will receive almost 300,000 original claims. 

Question 7: Can you inform whether VETSNET is going to be interoperable with 

DFAS? 

Response: The VETSNET suite of applications currently functions independently 

of DFAS payment systems. Over the past year, both VA and DFAS have exchanged 

access privileges to their respective data systems. VA employees can access the 

DFAS system, and DFAS employees can access VA’s system. There are also several 

VA/DFAS data exchanges in place and several planned for the future. During the 

course of a month, VA and DFAS exchange several different data files regarding disability compensation benefits that military retirees receive. These files are used to 

determine eligibility to VA disability compensation, military retired pay, combat-related special compensation (CRSC), concurrent receipt disability pay (CRDP), and 

other benefit programs. 


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Future data exchange plans include data files identifying military retirees, dependency and indemnity compensation recipients also entitled to survivor benefit 

payments, combat-related disability severance pay recipients and CRSC disabilities 

in VA’s system. 

Question 8: You state in your testimony that VA does not support section 101 

of the bill because VA will accept any reasonable in-service stressor as long as it 

appears consistent with the circumstances of the veteran’s service and if the VA examination and other evidence support the decision, establish service-connection on 

a direct basis. I do not think the VA examination is needed to make this link of 

service-connection. If all the other conditions are met under section 1154, then according to section 1154, the veteran’s injury should be presumed to be service-connected if consistent with the circumstances, conditions or hardships of service notwithstanding the fact that there is no official record of such incurrence or aggravation and can only be rebutted by clear and convincing evidence to the contrary. I 

took a look at your M–21–1s pertinent to section 1154 and I can only conclude that 

your interpretation and instructions to your employees conflict with the congressional intent of section 1154. Would you care to provide some insight on the application of the M–21–1s, particularly how even the presence of medals is often not 

enough to prove combat with the enemy? Would you please define what VA interprets as ‘‘engaged in combat with the enemy’’? Provide supporting documents if necessary—i.e. general counsel opinions, etc. 

Response: First, I would like to clarify that my testimony on section 101 was 

given with respect to section 101 of a draft bill, not section 101 of H.R. 5892. Section 

101 of the draft bill would have added post traumatic stress disorder (PTSD) to the 

statutory list of diseases that are presumed to have been incurred in or aggravated 

by service, applicable to any veteran who engaged in combat with the enemy in active service during a period of war, campaign, or expedition and who is diagnosed 

with PTSD. Section 101 of H.R. 5892 would provide that active duty service in a 

theater of combat operations during a period of war or in combat against a hostile 

force during a period of hostilities be considered ‘‘combat with the enemy’’ for purposes of 38 U.S.C. § 1154(b). 

The purpose of section 1154(b) is to recognize the hardships and dangers involved 

with military combat and acknowledge that military recordkeeping during times of 

combat activity may not be as thorough and complete as recordkeeping done at 

other less stressful times. As a result, veterans who engaged in combat with the 

enemy and file claims for service-connected disability related to that combat are not 

subject to the same evidentiary requirements as non-combat veterans. Thus, a combat veteran may establish the in-service incurrence or aggravation of an injury or 

disease, for purposes of establishing service connection for a resulting disability, 

with satisfactory lay or other evidence if consistent with the circumstances, conditions, or hardships of such service. When the claim is based on PTSD, a combat veteran’s lay statement alone can establish the occurrence of the claimed in-service 

stressor that has caused the current symptoms. Nevertheless, to establish entitlement to compensation for a service-connected disability, more must be shown. The 

in-service incurrence or aggravation of a disease or injury is only one of three elements needed. There must also be medical evidence of a current disability and medical evidence of a nexus between the in-service disease or injury and the current 

disability. These requirements have been upheld by the U.S. Court of Appeals for 

Veterans Claims and the U.S. Court of Appeals for the Federal Circuit, both of 

which agree that section 1154(b) facilitates the proof of only one element needed to 

establish entitlement to compensation for a service-connected disability. 

VA procedures are consistent with this interpretation of section 1154(b). Medical 

evidence, such as a VA examination, is necessary to show that there is a current 

diagnosis of the condition for which compensation is sought. In PTSD cases, an examination can establish the presence of current PTSD symptoms and provide the 

required medical link between the acknowledged in-service stressor and current 

PTSD symptoms. The examiner must determine whether an in-service stressful 

event actually caused the current PTSD symptoms. For this reason, as well as to 

assess the level of disability for compensation purposes, a VA examination may be 

necessary for service-connected disability compensation. 

Furthermore, the procedural manual used by VA to assist employees with processing PTSD claims, the M21–1MR, is consistent with section 1154(b). Although section 1154(b) facilitates the proving of in-service incurrence or aggravation of a combat-related injury or disease for veterans who engaged in combat with the enemy, 

it does not facilitate proving that a particular veteran did in fact engage in combat 

with the enemy so as to be able to benefit from section 1154(b). The Court of Appeals for the Federal Circuit has agreed with this interpretation. The manual M21– 

1MR provides that a veteran’s receipt of any of certain listed decorations is evidence 


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of exposure to combat-related stressors. The manual list includes the Army Combat 

Infantryman Badge, Combat Medical Badge, Combat Action Badge, Combat Action 

Ribbon, Purple Heart, Silver Star, Bronze Star Medal with ‘‘V’’ device, and many 

others. Thus, a recipient of one of these decorations can rely on receipt of the decoration itself to establish the occurrence of an in-service stressor. Medals that are 

awarded for service in a theater of operations, such as the Vietnam Campaign 

Medal or Iraq Campaign Medal, are not proof that the recipient personally participated in combat, but may serve as evidence supporting combat status when considered along with other evidence. 

If a veteran claims combat status but did not receive one of the listed decorations, 

VA will conduct research on the veteran’s military unit and seek evidence of any 

combat activity engaged in by the unit during the veteran’s service. No claim for 

disability compensation based on combat status, including those for PTSD, will be 

denied without first exhausting all avenues of research for evidence of combat. This 

includes sending an outside request for research to the Army and Joint Services 

Records Research Center. 

Irrespective of whether a veteran establishes that he or she engaged in combat 

with the enemy, VA requires a medical examination to determine whether the veteran currently has the disability for which he or she filed a claim and whether a 

link exists between service and the veteran’s current disability. 

In a precedent opinion issued in 1999, the VA Office of the General Counsel defined ‘‘engagement in combat with the enemy’’ as ‘‘participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.’’ The Court of Appeals for the Federal Circuit sanctioned this definition in 

Moran v. Peake, 525 F.3d 1157, 1159 (Fed. Cir. 2008) (‘‘engaged in combat with the 

enemy’’ in section 1154 requires that the veteran have personally participated in 

events constituting an actual fight or encounter with a military foe or hostile unit 

or instrumentality, as determined on a case-by-case basis). 

Question 9: Please elaborate on your opposition to section 302 and how this 

would negatively impact the BVA. Given the most claims to the CVAC begin as pro 

se wouldn’t this provision help these veterans? Be mindful that the genesis of provisions pertaining to section 302 come from statements and testimony presented by 

attorneys who ultimately end up representing these veterans. 

Response: Again, I want to clarify that section 202 of H.R. 5892, which corresponds to section 302 of the draft bill on which VA testified at the April 10, 2008, 

hearing, differs from section 302. Section 202 would add to the Veterans Court’s 

powers by enabling the court to ‘‘vacate and remand’’ a Board decision. Section 202 

would also condition the Veterans Court’s power to affirm, modify, reverse, remand, 

or vacate and remand a Board decision on first deciding all relevant assignments 

of error raised by the appellant for each particular claim for benefits, except where 

the Veterans Court reverses a decision on the merits of a claim and awards benefits, 

in which case the court need not decide any additional assignments of error with 

respect to that claim. However, section 202 does not include the provision in section 

302 of the draft bill that we found most objectionable (prohibiting VA from assigning 

or conceding an error not raised by the appellant, without first obtaining the appellant’s written consent.) 

My April 10, 2008, testimony opposing enactment of section 302 did not mention 

negative impact on the Board. Rather, our concerns focused on the court and VA’s 

role before the court. We believe that requiring the court to decide every allegation 

of error raised by the appellant would harm rather than help the appellant by unnecessarily delaying the court’s decision and eliminating the possibility that an 

issue could be resolved in the appellant’s favor before being decided by the court. 

We do not see that section 202 would provide any benefit to appellants, including 

the majority who are unrepresented when they file their appeals with the Veterans 

Court. Pro se appellants are more likely to raise issues that are not germane to the 

outcome of their claims, which the Veterans Court would be required to address in 

the event of a remand and which, as we explain below, would delay final resolution 

of claim. 

As a result of section 202, the Veterans Court would be required to issue longer 

and more complicated opinions. This would of course contribute to the court’s backlog. The Veterans Court’s caseload has doubled in the past 10 years, and it takes 

approximately 14 months to obtain a merits decision on a case. Merits decisions addressing every issue raised on appeal by an appellant would significantly extend the 

time from filing to disposition by the court, and final resolution of claims would be 

delayed by court opinions on issues that, in the end, may not affect the outcome 

of the claims. 

Also, when the Veterans Court remands a claim, the underlying Board decision 

is vacated and the claim is adjudicated anew. If the Veterans Court were required 


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to decide all issues raised by the appellant, the court may be forced to decide an 

issue adversely, which the appellant could not then appeal again to the Veterans 

Court following the Board’s decision on remand. However, if the Veterans Court is 

able to remand the case without resolving the issue, the appellant would be allowed 

to present additional evidence and argument on remand and might prevail on the 

issue before the Board. 

In addition, Article III of the Constitution limits Federal-court jurisdiction to 

‘‘Cases’’ and ‘‘Controversies,’’ which means there must be a real and substantial controversy for which there is specific relief that can be provided by a conclusive decree. 

No justiciable ‘‘controversy’’ exists when parties ask for an advisory opinion, and 

therefore, Federal courts are without power to issue such opinions. St. Pierre v. 

United States, 319 U.S. 41, 42 (1943); Arctic Corner, Inc. v. United States, 845 F.2d 

999, 1000 (Fed. Cir. 1988) (‘‘At the heart of the ‘case or controversy’ requirement 

is the prohibition against advisory opinions.’’). The Veterans Court has adopted the 

case-or-controversy limitation with respect to its own power to review Board decisions. Section 202, however, would require the Veterans Court to issue advisory 

opinions in some cases because section 202 would require the court to decide all 

issues raised by the appellant, including those that would not exist if further evidence and argument were developed on remand to the Board or those that are frivolous or wholly irrelevant to the case. 

Question 10: Can you inform the Committee of the VBA’s average cost per initial 

claim and reopened claims? If not, can you provide this information? 

Response: Costs would involve such things as employee hours, examination costs, 

facilities, supplies, support personnel, and other overhead costs. We do not have the 

data required to provide these calculations. 

Æ 


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