XO H.R. 3269 AND DRAFT LEGISLATION ON THE VJ ADJUDICATION OF VETERANS CLAIMS 103-34 Y 4. V 64/3: H.R. 326? and Draft Legislation on... HEARING BEFORE THE SUBCOMMITTEE ON COMPENSATION, PENSION AND INSURANCE OF THE COMMITTEE ON VETERANS' AFFAIRS HOUSE OF REPRESENTATIVES ONE HUNDRED THIRD CONGRESS FIRST SESSION NOVEMBER 17, 1993 Printed for the use of the Committee on Veterans' Affairs Serial No. 103-34 O A f. U.S. GOVERNMENT PRINTING OFFICE 77-492cc WASHINGTON : 1994 ForsalebytheU.S.GovernmentPrintingOffice SuperintendentofDocuments.CongressionalSalesOffice,Washington,DC 20402 ISBN 0-16-046361-0 m H.R. 3269 AND DRAFT LEGISLATION ON THE \*> ADJUDICATION OF VETERANS CLAIMS 103-34 Y 4. V 64/3: H.R. 326? and Draft Legislation on... HEAEING BEFORE THE SUBCOMMITTEE ON COMPENSATION, PENSION AND INSURANCE OF THE COMMITTEE ON VETERANS' AFFAIRS HOUSE OF REPRESENTATIVES ONE HUNDRED THIRD CONGRESS FIRST SESSION NOVEMBER 17, 1993 Printed for the use of the Committee on Veterans' Affairs Serial No. 103-34 U.S. GOVERNMENT PRINTING OFFICE 77-492cc WASHINGTON : 1994 ForsalebytheU.S.GovernmentPrintingOffice SuperintendentofDocuments,CongressionalSalesOffice.Washington,DC 20402 ISBN 0-16-046361-0 COMMITTEE ON VETERANS' AFFAIRS G.V. (SONNY) MONTGOMERY, Mississippi, Chairman DON EDWARDS, California BOB STUMP, Arizona DOUGLAS APPLEGATE, Ohio CHRISTOPHER H. SMITH, New Jersey LANE EVANS, Illinois DAN BURTON, Indiana TIMOTHYJ. PENNY, Minnesota MICHAEL BILIRAKIS, Florida J. ROY ROWLAND, Georgia THOMAS J. RIDGE, Pennsylvania JIM SLATTERY, Kansas FLOYD SPENCE, South Carolina JOSEPH P. KENNEDY, II, Massachusetts TIM HUTCHINSON, Arkansas GEORGE E. SANGMEISTER, Illinois TERRY EVERETT, Alabama JILL L. LONG, Indiana STEVE BUYER, Indiana CHET EDWARDS, Texas JACK QUINN, New York MAXINE WATERS, California SPENCER BACHUS, Alabama BOB CLEMENT, Tennessee JOHN LINDER, Georgia BOB FILNER, California CLIFF STEARNS, Florida FRANK TEJEDA, Texas PETER T. KING, New York LUIS V. GUTIERREZ, Illinois RON LEWIS, Kentucky SCOTTY BAESLER, Kentucky SANFORD BISHOP, Georgia JAMES E. CLYBURN, South Carolina MIKE KREIDLER, Washington CORRINE BROWN, Florida Mack Fleming, StaffDirectorand ChiefCounsel SUBCOMMITTEE ON COMPENSATION, PENSION, AND INSURANCE JIM SLATTERY, Kansas, Chairman DOUGLAS APPLEGATE, Ohio MICHAEL BILIRAKIS, Florida LANE EVANS, Illinois TERRY EVERETT, Alabama GEORGE E. SANGMEISTER, Illinois CLIFF STEARNS, Florida CHET EDWARDS, Texas PETER T. KING, New York FRANKTEJEDA, Texas (II) CONTENTS Page OPENING STATEMENTS Chairman Slattery 1 Hon. Michael Bilirakis 49 Hon. Lane Evans 2 WITNESSES Cragin, Charles, Chairman, Board ofVeterans' Appeals; R. John Vogel, Dep- uty Under Secretary for Benefits, Department ofVeterans Affairs, accom- panied by J. Gary Hickman, Director, Compensation and Pension Service; andJohn Thompson, Assistant General Counsel 3 Prepared statement ofMr. Cragin 51 Egan, Paul S., Executive Director,Vietnam Veterans ofAmerica 10 Prepared statementofMr. Egan 64 Howell, EarnestE., National LegislativeAssistant, AMVETS 19 Prepared statementofMr. Howell 81 Manhan, Bob, Assistant Director, National Legislative Service, Veterans of Foreign Wars 17 Prepared statementofMr. Manhan 78 Mank, Russell W., National Legislative Director, Paralyzed Veterans ofAmer- ica 14 Prepared statement ofMr. Mank 75 Rhea, Larry D., Deputy Director of Legislative Affairs, Non Commissioned OfficersAssociation 12 Prepared statementofMr. Rhea 68 Snyder, Keith D., President, National Organization of Veterans' Advocates, also representingVeterans Due Process 24 Prepared statementofMr. Snyder 101 Stenger, Charles A. Ph.D., National Consultant, American Ex-prisoners of War 20 Prepared statementofDr. Stenger 89 Violante, JosephA., Legislative Counsel, Disabled AmericanVeterans 22 Prepared statementofMr. Violante 93 Vogel, R. John, Deputy Under Secretary for Benefits, Department ofVeterans Affairs 4 Wilkerson, Philip R., Assistant Director, National Veterans Affairs and Reha- bilitation Commission, The American Legion 26 Prepared statementofMr. Wilkerson 108 MATERIAL SUBMITTED FOR THE RECORD Bill: H.R. 3269 31 Draftbill: A bill to make improvements in the adjudication process at the Depart- ment ofVeteransAffairs 44 Statements: Blinded VeteransAssociation 118 FleetReserve Association 122 (HI) IV Written committee questions and theirresponses: Hon. Lane Evans toDepartmentofVeteransAffairs 123 Hon. Michael Bilirakis to DepartmentofVeteransAffairs " 128 Chairman Slattery toDepartmentofVeteransAffairs 130 Chairman Slattery to Cragin, Charles, Chairman, Board of Veterans' Appeals, Department ofVeteransAffairs 211 H.R. 3269 AND DRAFT LEGISLATION ON THE ADJUDICATION OF VETERANS CLAIMS WEDNESDAY, NOVEMBER 17, 1993 House of Representatives, Subcommittee on Compensation, Pension, and Insurance, Committee on Veterans' Affairs, Washington, D.C. The subcommittee met, pursuant to call, at 10:19 a.m., in room 334, Cannon House Office Building, Hon. Jim Slattery (chairman ofthe subcommittee) presiding. Present: Representatives Slattery and Evans. OPENING STATEMENT OF CHAmMAN SLATTERY Mr. Slattery. The subcommittee will come to order. We are meeting this morning to receive testimony on two meas- ures that propose to make improvements in the VA adjudication and appeals process. As you know, this is our fifth hearing on this subject this year, and it should be our last hearing ofthis session. I want to thank the gentleman from Illinois, Mr. Evans, for his work on H.R. 3269, and I also want to thank the veterans service organizations for their assistance and recommendations regarding the development of my draft legislation. We have incorporated many ofideas and concepts they suggested earlier this year. I remain convinced that we can make changes that will improve the system, and we will continue to work toward that end. We will probably conduct one additional hearing to address legislation af- fecting the BVA board members, but that will be in spring. After that, we will be looking at a markup, hopefully by April. Today is a special day for all ofus because one ofour most trust- ed and fine servants on this committee, Sue Forrest, is going to be retiring here in a few weeks, I am advised. Sue, you have done super work for us. We have all been inspired by your dedication and professionalism through the years, and we are going to miss you. We wish you well as you head off to a pre- mature retirement. You don't look old enough to be retiring from anything. We are going to miss you, but I understand you are going to be having a lot of fun playing golf and doing other things. Good luck to you, and thanks for many years of service to this country, and thanks for many years of service to this committee also. (Ap- plause.) Does the gentleman from Illinois wish to be recognized for any kind ofan opening statement? (1) OPENING STATEMENT OF HON. LANE EVANS Mr. Evans. First let me join you in the accolades for Sue. She has been a good help to us on our side, and we have had good par- ticipation and cooperation from her work on this committee. We hope you do well in your retirement. Mr. Chairman, thank you for convening today's hearing on the Department ofVeterans Affairs claims adjudication system as well as legislation to reform this system, H.R. 3269. I would like to thank you for including the section ofmy bill that deals with recon- sideration ofclaims due ofobvious error in H.R. 3400 which passed the full committee last week. I hope that we can continue to work together in pushing for adjudication reform. vA's adjudication system is broken. It fails our Nation's veterans and must be fixed. The men and women who served and fought on our behalf should not be forced to fight VA's bureaucracy as they return to civilian life and seek their deserved veterans benefits. As we look towards reforming the system, we cannot allow the blame to fall solely on the Court of Veterans Appeals. The Court ofVeterans Appeals is not the problem. In fact, I would like to re- mind everyone that the number and backlog of cases was increas- ing even before the creation ofCOVA. Let me make this perfectly clear. I will strongly oppose any effort to curtail a veteran's right to judicial review. Instead, changes must focus primarily on the way VA regional offices and the Board of Veterans Appeals process claims. Far too many claims are re- manded because they were poorly developed and lack the necessary information. As far as I am concerned, VA'sjob is to assist veterans rather than to delay their claims until it is too late for anything but survivors' benefits. I know that the fixing of the system will not be easy. While the changes that will be necessary to reduce the backlog of claims and ensure that a veterans receive fair and timely consideration may appear radical to some, these reforms are long overdue. Some of the changes will undoubtedly result from congressional action and others from the VA's own efforts such as the Blue Ribbon Panel on Adjudication Reform. While my legislation will not fix the system entirely, it will pro- vide a solid beginning. The legislative measure has received the bi- partisan support of committee and noncommittee members. It is based in large part on the consensus recommendations that the veterans service organizations provided to this subcommittee ear- lier this year. The recommendations that they put forth were com- prehensive and thoughtful. I would like to thank the VSO's for their efforts and their commitment to America's veterans. This bill's major provisions would establish a clear work rate standard for adjudication employees, mandate a detailed annual re- port on the status of benefit claims, reform certain BVA proce- dures, and establish a clear CUE standard. Furthermore, both Mr. Bilirakis and I have introduced legislation to raise the pay of BVA members to that of administrative law judges with comparable ex- perience and eliminate the current term limits. As you know, Board members currently receive significantly less than ALJ's and are appointed for fixed terms with the option of reappointment by the chairman ofBVA. Taken together, these two factors have resulted in unacceptable rates of turn over in Board members. Veterans deserve to have their appeals to BVA heard by knowledgeable, experienced Board members, and in order for this to occur, members must be encour- aged to stay on the Board. I want to thank Mr. Bilirakis, and, in your absence last week, Mr. Chairman, he asked if we would be holding hearings on this legislation or similar legislation, and I told him of your intent to do so. So we very much appreciate the timeliness of your hearing. I obviously look forward to working with you on these issues and hope you will hold a markup on these matters and the BVA pay issue early next year. Thank you for the time. Mr. Slattery. Lane, as we have discussed, it is certainly the chair's intention to have a hearing in the spring and have some kind ofa markup hopefully in the April time frame. So I appreciate your work on this. You and I both share the same goal, and that is to correct this horrible backlog problem and do what we can to deal with that. I think we also both share the view, certainly, that justice de- layed is justice denied in many of these cases, and we really do need to do everything we can to put the resources in play that will enable us to correct this problem, and that is my intention, and hopefully this hearing and our future activity will move us in that direction. So thank you for your help. Mr. Slattery. Our first witnesses today are Mr. Charles Cragin, Chairman ofthe BVA, and Mr. John Vogel, the Deputy Under Sec- retary for Benefits. They are accompanied today by Mr. Gary Hick- man and Mr. Jack Thompson. Gentlemen, I welcome you, and we look forward to your testi- mony. STATEMENTS OF CHARLES CRAGIN, CHAIRMAN, BOARD OF VETERANS' APPEALS; AND R. JOHN VOGEL, DEPUTY UNDER SECRETARY FOR BENEFITS, DEPARTMENT OF VETERANS AFFAHIS, ACCOMPANIED BY J. GARY HICKMAN, DntECTOR, COMPENSATION AND PENSION SERVICE; AND JOHN THOMP- SON, ASSISTANT GENERAL COUNSEL STATEMENT OF CHARLES CRAGIN Mr. Cragin. Good morning Mr. Chairman, Congressman Evans. It is a pleasure to be with you and the subcommittee this morning to offer the Administration's views on the two important bills be- fore the subcommittee today, H.R. 3269 introduced by Congress- man Evans, and your draft bill, the Veterans' Adjudication Im- provements Act of 1993. We have provided the Department's com- ments in our prepared statement. Mr. Chairman, I can't resist observing that tomorrow, November 18, 1993, is the fifth anniversary of the operative effective date of the Veterans' Judicial Review Act, the so-called NOD date, Novem- ber 18, 1988. This morning, Mr. Chairman, I would like to thank you and the rest of the committee for your prompt action on sub- title (d) of title 12 of H.R. 3400, the Government Reform and Sav- ings Act of 1993. The four provisions in that bill relating to the Board, particularly the provision allowing decisions by single mem- bers, will assist us in meeting our statutory mission ofhandling ap- peals in a timely manner. We share the concerns ofthis committee with regard to the need for some kind of relief from the excessive average response times required in connection with an appeal to the Board ofVeterans' Ap- peals. As recently as fiscal year 1991, it took the Board, on the average, less than 5 months, 139 days, to reach a final decision on an ap- peal. That does not include time spent at the regional office. That is just the time beginning when the case reaches the Board and ending when the Board sends the file back to the regional office. As of October 31 of this year, that time, the BVA average re- sponse time, had increased to 505 days. That is nearly a year and a half. And that time grow grows day by day. By this time next year, Mr. Chairman, we are projecting an average response time at the Board of 725 days, more than 2 years, and bear in mind that I am speaking only of the time that a case is at the Board. You are absolutely correct when you said this morning that justice de- layed isjustice denied, and this isjustice denied. When this Committee sent to the President the landmark Veter- ans' Judicial Review Act in 1988, it marked a great day for the pro- cedural and substantive rights of veterans and their families, and I know that the last thing any Member wanted was to increase the time a claimant had to wait for a final decision. Unfortunately, that is what has happened. The persons the Board deals with, Mr. Chairman, are among the most important in our society, those who have been willing to put themselves in harm's way for their country. I am committed, and Secretary Brown is committed, to providing quality decisions in a reasonable time to this special class of citizens and to their fami- lies, and we look forward to working with you and the other mem- bers ofyour Committee in reaching that goal. Mr. Vogel has an introductory statement, and then both of us would be happy to respond to your questions, Mr. Chairman. Mr. Slattery. Mr. Vogel? STATEMENT OF R. JOHNVOGEL Mr. Vogel. Good morning, Mr. Chairman, Mr. Evans. I am pleased to be here today to present the views of the Department ofVeterans Affairs on those provisions of H.R. 3269 and your own draft legislation which affect the Veterans Benefits Administration. VA opposes enactment of H.R. 3269. In addition to other provi- sions, it provides that VA claims examiners not receive credit for work on a claim until the claimant has exhausted or failed to time- ly exercise the right to appellate review by the Board of Veterans' Appeals. Whereas H.R. 3269 would implement no change in the ad- judication process itself, VA has begun a number of initiatives to enable claims adjudicators to make better decisions faster. Paramount among these initiatives, the Blue Ribbon Panel on Claims Processing is formulating an action plan to meet the objec- tives ofreducing both the time it takes adjudicators to decide bene- fit claims and the backlog ofclaims.