[Senate Report 111-71]
[From the U.S. Government Publishing Office]
Calendar No. 155
111th Congress Report
SENATE
1st Session 111-71
======================================================================
VETERANS' BENEFITS ENHANCEMENT ACT OF 2009
_______
September 2, 2009.--Ordered to be printed
Filed, under authority of the order of the Senate of August 7, 2009
_______
Mr. Akaka, from the Committee on Veterans' Affairs,
submitted the following
R E P O R T
[To accompany S.728]
The Committee on Veterans' Affairs (hereinafter, ``the
Committee''), to which was referred the bill (S.728), to amend
title 38, United States Code (hereinafter, ``U.S.C.''), to
enhance veterans' insurance benefits, and for other purposes,
having considered the same, reports favorably thereon, with an
amendment in the nature of a substitute, and recommends that
the bill, as amended, do pass.
Introduction
On March 26, 2009, Committee Chairman Daniel K. Akaka
introduced S.728, the proposed ``Veterans' Insurance and
Benefits Enhancement Act of 2009.'' S.728 as introduced would
amend title 38 to enhance veterans' insurance benefits, and for
other purposes.
Earlier, on January 15, 2009, Senator Casey introduced
S.263, the proposed ``Servicemembers Access to Justice Act of
2009,'' which would amend title 38 to improve the enforcement
of the Uniformed Services Employment and Reemployment Rights
Act of 1994 (hereinafter, ``USERRA''). Senators Burris,
Kennedy, and Wyden are cosponsors.
On January 29, 2009, Senator Ensign introduced S.347, which
would allow the Department of Veterans Affairs (hereinafter,
``VA'') to distinguish between the severity of a qualifying
loss of a dominant hand and a qualifying loss of a non-dominant
hand for purposes of traumatic injury protection under
Servicemembers' Group Life Insurance (hereinafter, ``SGLI'').
Senator Rockefeller is a cosponsor.
On March 3, 2009, Chairman Akaka introduced S.514, the
proposed ``Veterans Rehabilitation and Training Improvements
Act of 2009,'' to enhance vocational rehabilitation benefits
for veterans. Senator Burris is a cosponsor.
On April 2, 2009, Senator Sanders introduced S.820, the
proposed ``Veterans Mobility Enhancement Act of 2009.'' S.820
would increase the automobile assistance allowance for veterans
from $11,000 to $22,500 and provide for an annual adjustment to
an amount equal to 80 percent of the average retail cost of new
automobiles for the preceding calendar year.
On April 21, 2009, Senator Kerry introduced S.842, which
would reinforce VA's authority to purchase a VA-guaranteed home
loan from a mortgage holder, if the loan is modified during
bankruptcy.
On April 21, 2009, Senator Webb introduced S.847, which
would provide that utilization of survivors' and dependents'
educational assistance shall not be subject to the 48-month
limitation on the aggregate amount of assistance available
under multiple veterans-related educational assistance
programs.
On April 28, 2009, Chairman Akaka introduced S.919, the
proposed ``Clarification of Characteristics of Combat Service
Act of 2009.'' S.919 would clarify the additional requirements
for consideration to be afforded time, place, and circumstances
of service in determination of service-connection.
On April 29, 2009, the Committee held a hearing on the
above-referenced bills and other benefits-related legislation.
Testimony was offered by: Bradley G. Mayes, Director,
Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs; Robert Jackson,
Assistant Director, National Legislative Service, Veterans of
Foreign Wars of the United States; Raymond Kelley, Legislative
Director, AMVETS; R. Chuck Mason, Legislative Attorney,
Congressional Research Service; Ian de Planque, Assistant
Director for Claims Service, Veterans Affairs and
Rehabilitation Commission, The American Legion; and Rebecca
Noah Poynter, Director, Military Spouse Business Organization.
On May 11, 2009, Committee Ranking Member Richard Burr
introduced S.1015, which would enhance disability compensation
for certain disabled veterans with difficulties using
prostheses and disabled veterans in need of regular aid and
attendance for residuals of traumatic brain injury
(hereinafter, ``TBI''). Senators Durbin and Isakson are
original cosponsors.
On May 11, 2009, Ranking Member Burr introduced S.1016,
which would modify the commencement of the period of payment of
original awards of compensation for veterans who are retired or
separated from the uniformed services for catastrophic
disability.
Committee Meeting
After carefully reviewing the testimony from the foregoing
hearing, the Committee met in open session on May 21, 2009, to
consider, among other legislation, an amended version of S.728,
consisting of provisions from S.728 as introduced, provisions
from the other legislation noted above, and several
freestanding provisions. The Committee voted, without dissent,
to report favorably S.728 as amended.
Summary of S.728 as Reported
S.728, as reported (hereinafter, ``the Committee bill''),
which consists of six titles, would make numerous enhancements
and expansions to veterans benefits, services, and rights and
would amend the title of the original bill.
TITLE I--INSURANCE MATTERS
Section 101 would provide additional supplemental insurance
for totally disabled veterans.
Section 102 would adjust the coverage of dependents under
SGLI.
Section 103 would expand the number of individuals
qualifying for retroactive benefits from traumatic injury
protection coverage under SGLI (hereinafter, ``TSGLI'').
Section 104 would permit VA to consider the loss of a
dominant hand in prescription of the schedule of payments for
TSGLI.
Section 105 would enhance the amount of insurance provided
an individual under the Veterans' Mortgage Life Insurance
(hereinafter, ``VMLI'') program.
TITLE II--COMPENSATION AND PENSION MATTERS
Section 201 would establish a cost-of-living increase for
temporary dependency and indemnity compensation (hereinafter,
``DIC'') payable to surviving spouses with dependent children
under the age of 18.
Section 202 would clarify the eligibility of veterans 65
years of age or older for service pension for a period of war.
Section 203 would require VA to issue regulations
recognizing circumstances in which lay evidence does not
require confirmatory official documentary evidence.
Section 204 would extend, through the end of fiscal year
2014, provisions that reduce VA pension for certain VA
beneficiaries with no dependents who are covered by Medicaid
plans for services furnished by nursing facilities.
Section 205 would enhance disability compensation for
certain disabled veterans who have difficulties using
prostheses and disabled veterans in need of regular aid and
attendance for the residuals of TBI.
Section 206 would modify the commencement of the period of
payment of original awards of compensation for veterans who are
retired or separated from the uniformed services for a
catastrophic disability.
Section 207 would treat adult-disabled children of veterans
who receive pension in nursing homes in the same manner as
veterans and surviving spouses.
Section 208 would provide for the payment of DIC to the
survivors of former prisoners of war (hereinafter, ``POWs'')
who died on or before September 30, 1999, on the same basis as
survivors of former POWs who die or have died after that date.
TITLE III--READJUSTMENT AND RELATED BENEFIT MATTERS
Section 301 would repeal the annual cap of 2,600 on the
number of veterans that may enroll each year in the VA program
of independent living services and assistance.
Section 302 would expand eligibility for automobile and
adaptive equipment to disabled veterans and members of the
Armed Forces with severe burn injuries.
Section 303 would increase the automobile assistance
allowance for certain disabled veterans and members of the
Armed Forces.
Section 304 would reinforce VA's authority to purchase a
VA-guaranteed home loan that is modified by a bankruptcy judge.
TITLE IV--EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE
UNIFORMED SERVICES
Section 401 would waive sovereign immunity of a State under
the 11th Amendment to the Constitution with respect to
enforcement of USERRA.
Section 402 would clarify the definition of ``successor in
interest'' under USERRA.
Section 403 would clarify that USERRA prohibits wage
discrimination against members of the Armed Forces.
Section 404 would require Federal agencies to notify
contractors of their potential USERRA obligations.
Section 405 would direct the Comptroller General of the
United States to conduct a study on the effectiveness of the
Federal government's USERRA education and outreach programs.
Section 406 would make technical and conforming amendments.
TITLE V--BURIAL AND MEMORIAL MATTERS
Section 501 would authorize supplemental benefits for
funeral and burial expenses.
Section 502 would authorize supplemental plot allowances.
TITLE VI--OTHER MATTERS
Section 601 would require the National Academies to review
the best treatments for Gulf War Illness.
Section 602 would extend the National Academies' reviews
and evaluations regarding illness and service in the Gulf War.
Section 603 would extend the authority for the VA Regional
Office in the Republic of the Philippines from December 31,
2009, to December 31, 2011.
Section 604 would increase the aggregate amount of
educational assistance available to individuals who receive
both survivors' and dependents' educational assistance and
other veterans and related educational assistance.
Background and Discussion
TITLE I--INSURANCE MATTERS
Sec. 101. Increase in amount of supplemental insurance for totally
disabled veterans.
Section 101 of the Committee bill, which is derived from
S.728 as introduced, would provide additional supplemental
insurance to totally disabled veterans under the Service-
Disabled Veterans' Insurance (hereinafter, ``S-DVI'') program.
Background. Many totally disabled veterans find it
difficult to obtain commercial life insurance. These are the
veterans this program aids by providing them with a reasonable
amount of life insurance coverage. S-DVI was established during
the Korean War to provide life insurance for veterans with
service-connected disabilities. The $10,000 base benefit has
never been increased. In comparison, the SGLI and Veterans'
Group Life Insurance (hereinafter, ``VGLI'') benefits, which
were at their inception $10,000 and $20,000 respectively, have
been increased over time to $400,000.
In 1992, in Public Law 102-568, the Veterans' Benefits Act
of 1992, Congress increased the amount of life insurance
available to S-DVI policyholders by offering $20,000 worth of
supplemental coverage to those who are considered totally
disabled. Forty-five percent of the veterans enrolled in the S-
DVI program are considered totally disabled and are eligible
for a premium waiver for their basic coverage. According to VA,
27 percent of veterans with a premium waiver currently have a
supplemental S-DVI policy. However, even with $30,000 in
coverage, the amount of life insurance available to disabled
veterans falls well short of the death benefits available to
servicemembers and veterans enrolled in the SGLI and VGLI
programs.
The Congressionally-mandated study completed in 2001,
entitled ``Program Evaluation of Benefits for Survivors of
Veterans with Service-Connected Disabilities,'' found the
lowest area of veteran satisfaction to be the maximum amount of
S-DVI insurance coverage that veterans were authorized to
purchase.
Committee Bill. Section 101 of the Committee bill would
amend section 1922A(a) of title 38 so as to increase the amount
of life insurance available to totally disabled veterans by
allowing them to purchase an additional $10,000 in supplemental
insurance coverage.
Sec. 102. Adjustment of coverage of dependents under Servicemembers'
Group Life Insurance.
Section 102 of the Committee bill, which is derived from
S.728 as introduced, would amend current law so that no
insurable dependent could be covered under SGLI for more than
120 days after the member's separation or release from service
or assignment.
Background. Before the passage of Public Law 110-389, the
Veterans' Benefits Improvement Act of 2008, SGLI coverage of a
servicemember's insurable dependent ended either 120 days after
the servicemember elected to end coverage or the earliest of
three dates: (1) 120 days after the servicemember died; (2) 120
days after the date the servicemember's coverage ended; or (3)
120 days after the dependent ceased to be an insurable
dependent.
Section 403(b) of Public Law 110-389 amended the second of
the three listed dates to be the date the servicemember's
coverage ended. The purpose was to provide that an insurable
dependent's coverage would end when the servicemember's
coverage ended, generally 120 days after separation or release
from active service, rather than 120 days after the member's
coverage ended, or 240 days after the member's separation or
release from active service.
However, Public Law 110-389 unintentionally allowed
insurable dependents of servicemembers on active duty, or Ready
Reservists who are totally disabled on the date of separation
or release from service or assignment, to continue receiving
insurance coverage long after the servicemembers' separation or
release from service. Servicemembers on active duty are
potentially eligible for continued coverage for up to 2 years
after the date of separation or release from service; Ready
Reservists are potentially eligible for an additional 1 year of
coverage after separation or release from an assignment.
Therefore, the insurable dependents of covered servicemembers
on active duty are also potentially eligible for continued
coverage for up to 2 years after the date of separation or
release from service or, in the case of an insurable dependent
of a Ready Reservist, up to 1 year after the date of separation
or release from an assignment.
Committee Bill. Section 102 of the Committee bill would
amend section 1968(a)(5)(B)(ii) of title 38 so that no
insurable dependent, not even those of servicemembers who
remain covered for up to 1 or 2 years after service or
assignment, could remain covered under SGLI for more than 120
days after the servicemember's separation or release from
service or assignment.
In the interest of equity, the Committee intends that all
insurable spouses of servicemembers, whether those who are
disabled or not, would have the same time period in which to
obtain private insurance.
Sec. 103. Expansion of individuals qualifying for retroactive benefits
from traumatic injury protection coverage under Servicemembers'
Group Life Insurance.
Section 103 of the Committee bill, which is derived from
S.728 as introduced, would expand the number of individuals
qualifying for retroactive benefits under TSGLI.
Background. Section 1032 of Public Law 109-13, the
Emergency Supplemental Appropriations Act for Defense, the
Global War on Terror, and Tsunami Relief, 2005 (hereinafter,
``Supplemental Appropriations Act''), established traumatic
injury protection coverage under the SGLI program. TSGLI
provides coverage against qualifying losses incurred as a
result of a traumatic injury event. In the event of a loss, VA
will pay between $25,000 and $100,000 depending on the severity
of the qualifying loss. A key factor in analyzing the severity
of a particular traumatic injury is the impact it has on the
length of hospitalization and rehabilitation. Currently,
servicemembers and Reserve component members with any amount of
SGLI coverage are automatically covered under TSGLI. A premium
(currently $1 monthly) is collected from covered members to
meet peacetime program expenses; the Department of Defense
(hereinafter, ``DOD'') is required to fund TSGLI program costs
associated with the extra hazards of military service.
TSGLI went into effect on December 1, 2005. Thus, all
insured servicemembers under SGLI from that point forward are
also insured under TSGLI and their injuries are covered
regardless of where they occur. In order to provide assistance
to those servicemembers suffering traumatic injuries on or
between October 7, 2001, and November 30, 2005, retroactive
TSGLI payments were authorized under section 1032(c) of the
Supplemental Appropriations Act to individuals whose qualifying
losses were sustained as ``a direct result of injuries incurred
in Operation Enduring Freedom or Operation Iraqi Freedom.''
Under section 501(b) of Public Law 109-233, the Veterans'
Housing Opportunity and Benefits Improvement Act of 2006, this
definition was amended to allow retroactive payments to
individuals whose qualifying losses were sustained as ``a
direct result of a traumatic injury incurred in the theater of
operations for Operation Enduring Freedom and Operation Iraqi
Freedom.''
Without corrective action, men and women who were
traumatically injured on or between October 7, 2001, and
November 30, 2005, but were not in the Operation Iraqi Freedom
(hereinafter, ``OIF'') or Operation Enduring Freedom
(hereinafter, ``OEF'') theaters of operation, will continue to
be denied the same retroactive payment given to their wounded
comrades, even though the SGLI for which TSGLI is a rider was
made retroactive.
Committee Bill. Section 103 of the Committee bill would
amend section 501(b) of Public Law 109-233 so as to remove the
requirement that limits retroactive TSGLI payments to those who
served in the OIF or OEF theaters of operation. Thus, this
section of the Committee bill would authorize retroactive TSGLI
payments for qualifying traumatic injuries incurred on or after
October 7, 2001, but before December 1, 2005, irrespective of
where the injuries occurred.
Sec. 104. Consideration of loss of dominant hand in prescription of
schedule of severity of traumatic injury under Servicemembers'
Group Life Insurance.
Section 104 of the Committee bill, which is derived from
S.728 as introduced, would allow VA to consider the loss of a
dominant hand in developing the schedule of payments for TSGLI.
Background. TSGLI provides for payment to servicemembers
who suffer a qualifying loss as a result of a traumatic injury
event. In the event of a qualifying loss, VA will pay between
$25,000 and $100,000, depending on the severity of the
qualifying loss. In prescribing payments, VA does not account
for the effect, if any, that the loss of a dominant hand has on
lengthening hospitalization or rehabilitation periods.
Committee Bill. Section 104 of the Committee bill would
amend section 1980A(d) of title 38 to authorize VA to
distinguish in specifying payments for qualifying losses of a
dominant hand and a non-dominant hand.
Sec. 105. Enhancement of veterans' mortgage life insurance.
Section 105 of the Committee bill, which is derived from
S.728 as introduced, would enhance the amount of insurance
provided a service-connected disabled veteran under the VMLI
program.
Background. The VMLI program was established in 1971 and is
available to service-connected disabled veterans who have
received specially adapted housing grants from VA. In the event
of the veteran's death, the veteran's family is protected
because VA will pay the balance of the mortgage owed up to the
maximum amount of insurance purchased.
In today's housing market where, according to the Federal
Housing Finance Board, the average mortgage loan in the United
States in May 2009 was $221,200, the current maximum of $90,000
in VMLI insurance protection is not adequate.
Committee Bill. Section 105 of the Committee bill would
amend section 2106(b) of title 38 to increase the maximum
amount of insurance that may be purchased under the VMLI
program from the current maximum of $90,000 to $150,000 and
then, on January 1, 2012, from $150,000 to $200,000.
The Committee believes that these changes will help ensure
that this important benefit, which helps secure the financial
futures of many veterans and their families, keeps pace with
changes in the economy.
TITLE II--COMPENSATION AND PENSION MATTERS
Sec. 201. Cost-of-living increase for temporary dependency and
indemnity compensation payable for surviving spouses with
dependent children under the age of 18.
Section 201 of the Committee bill, which is derived from
S.728 as introduced, would establish a cost-of-living increase
for temporary DIC payable to surviving spouses with dependent
children under the age of 18.
Background. Under section 1310 of title 38, VA provides DIC
to a surviving spouse if a veteran's death resulted from: (1) a
disease or injury incurred or aggravated in the line of duty
while on active duty or active duty for training; (2) an injury
incurred or aggravated in the line of duty while on inactive
duty for training; or (3) a service-connected disability or a
condition directly related to a service-connected disability.
In a May 2001 report, Program Evaluation of Benefits for
Survivors of Veterans with Service-Connected Disabilities
(hereinafter, ``DIC Report''), a recommendation was made to
increase DIC by $250 per month for DIC surviving spouses with
dependent children during the 5-year period after the veteran's
death. It was noted in the DIC Report that, ``While the DIC
program provides increased benefits for survivors that vary
according to the number of dependent children, the evidence
suggests a need for even greater benefit allowances for these
survivors. Furthermore, this additional need is affected more
by the presence of dependent children in the household than by
number of children.''
Section 301 of Public Law 108-454, the Veterans Benefits
Improvement Act of 2004, amended section 1311 of title 38, to
authorize VA to pay a $250 per month temporary benefit to a
surviving spouse with one or more children below the age of 18,
during the 2 years following the date on which entitlement to
DIC began. This provision was enacted in response to the DIC
Report's recommendation on the need for transitional DIC.
Committee Bill. Section 201 of the Committee bill would
amend section 1311(f) of title 38 by authorizing a permanent,
automatic, cost-of-living adjustment for this temporary DIC
payment so that the value of the benefit does not erode over
time.
This cost-of-living increase would occur whenever there is
an increase in benefit amounts payable under title II of the
Social Security Act, section 401 et seq., title 42, U.S.C.
Sec. 202. Eligibility of veterans 65 years of age or older for service
pension for a period of war.
Section 202 of the Committee bill, which is derived from
S.728 as introduced, would amend section 1513 of title 38,
relating to VA pension for veterans age 65 and over, so as to
clarify the scope of that provision. The Committee bill would
overturn a decision of the United States Court of Appeals for
Veterans Claims in Hartness v. Nicholson, 20 Vet. App. 216, 217
(2006) (hereinafter, ``Hartness''), so as to reaffirm that
certain VA pension benefits are only provided to veterans who
are significantly disabled and not merely on the basis of age.
Background. The provision of pension benefits to wartime
veterans has a long history in American and English law.
Officers of the Revolutionary War who served for the full term
of the war were entitled to receive pay without regard to
disability; service pensions were also provided to those who
served for at least 14 days in the War of 1812. Browning,
Arthur, A Treatise on the Laws Relating to Pensions, Patents,
Bounties and Other Applications Before the Executive
Departments 73 (Gibson Bros., Printers and Bookbinders 1893)
(hereinafter, ``Browning''). Veterans of the Mexican-American
War also were eligible for a service pension (Browning at 78),
as were veterans of the Indian Wars (Browning at 82).
A Report to the President (April 1956) by The President's
Commission on Veterans' Pensions, chaired by General Omar N.
Bradley, provided this assessment on page 351:
Stripped of all passing considerations, the main
concern of pension legislation for veterans has been to
keep them and their kin from want and degradation * *
*. Even where need was not required to be shown, it was
presumed to exist by reason of old age. We have been
unwilling as a Nation ever to see the citizen-soldier
who had rendered honorable service in wartime reduced
to the dishonorable status of ``pauper.'' Pensions were
provided to them as an ``honorable'' form of economic
assistance.
Prior to World War I, financial need was not an explicit
basis for all pension benefits. Pension for veterans of the
Indian Wars and Spanish American War were not based upon need.
However, there are benefits, such as housebound and aid and
attendance benefits, which have been based on a finding of
disability.
Current law continues the longstanding practice of
providing pension benefits to veterans of wartime service.
Under section 1521 of title 38, there are three elements that a
veteran must establish to qualify for basic VA disability
pension--service during a period of war, an annual income below
specified levels (depending on the number of the veteran's
dependents), and total and permanent disability.
Each of these elements is integral to fulfilling the
purpose of the basic disability pension benefit--service in a
period of war so as to place the veteran in the special
category of those who are seen to have a particular claim on
the Nation's gratitude, limited income so as to demonstrate the
veteran's need for financial assistance, and permanent and
total disability so as to establish that the veteran's status
is not the result of some minor or temporary disability from
which recovery can be expected.
While these three elements have been adjusted over the
years--the amount of service required during a period of war,
for example, or a change in what assets are included in
determining a veteran's income--one aspect that has been
particularly challenging has been the relationship between
finding a qualifying state of permanent and total disability
and a veteran's age.
In 1967, shortly after the enactment of the Medicare
program, which uses age 65 as the point at which someone
qualifies for the benefits of that program, Congress passed
legislation, enacted as Public Law 90-77, which provided that,
at age 65, a veteran would be considered totally and
permanently disabled for purposes of VA pension.
Later, in 1990, Congress again acted with respect to the
question of age and disability, this time passing legislation,
enacted as part of the Omnibus Budget Reconciliation Act of
1990, Public Law 101-508, which repealed the automatic
presumption of permanent and total disability at age 65.
Most recently, in 2001, the issue of age and disability was
again before Congress. As noted in the joint explanatory
statement accompanying final passage of H.R. 1291, which was
enacted as Public Law 107-103, the Veterans Education and
Benefits Expansion Act of 2001 (the compromise legislation that
dealt with this issue), the legislation was in response to an
action taken by VA to address a looming backlog of claims.
The Veterans' Affairs Committees learned that the Veterans
Benefits Administration had advised VA adjudicators to presume
that veterans age 65 and older were totally and permanently
disabled for VA pension purposes and, on that basis, to not
require a physical examination before finding eligibility for
pension.
While the Committee did not then, and does not now, believe
that there is a rationale basis in medical science for equating
age 65 with permanent and total disability, it did recognize
that there was merit to providing a service pension to older
veterans, similar to that provided to veterans of the Indian
and Spanish American Wars, so as to allow VA to avoid using
scarce resources to carry out examinations on impoverished,
wartime veterans age 65 and over.
In enacting the legislation that added section 1513 to
title 38, so as to provide a service pension to older wartime
veterans, the House and Senate Committees on Veterans' Affairs
noted their disapproval of VA's failure to follow existing law,
but agreed, as stated in the explanatory statement accompanying
the legislation, that
a policy of requiring proof of disability for an aged
wartime veteran with incomes (sic) below the pension
benefit amount involves use of scarce agency resources
without a commensurate return. The Committees have
determined that aged wartime veterans should be
provided a needs-based pension under conditions similar
to that provided for veterans of the Indian Wars and
the Spanish-American War.
147 Cong. Rec. S13239 (daily ed. Dec. 13, 2001) (Joint
Explanatory Statement on Public Law 107-103) (hereinafter,
``JES'').
As noted above, the Committee bill would overturn a
decision of the United States Court of Appeals for Veterans
Claims (hereinafter, ``Court'') in Hartness v. Nicholson, 20
Vet. App. 216 (2006), which interpreted a reference to section
1521 in subsection (a) of section 1513 of title 38 to mean that
veterans age 65 and older who applied for a service pension
under that section would also be eligible to receive benefits
on the basis of being housebound without meeting the disability
criteria of section 1521.
The Hartness decision has resulted in disparate benefits
for similarly situated veterans who differ only in whether they
have reached 65 years of age. As a result of this ruling,
veterans who are 65 years of age and older are eligible to be
paid at the higher housebound rate even if they have only one
disability rated at 60 percent, a benefit which veterans who
are under 65 years of age are not automatically eligible to
receive.
In Hartness, the Court was confronted with what it
described as a question of first impression--the relationship
between sections 1513 and 1521 of title 38. The question, as
articulated by the Court, was whether section 1513 operated to
remove the requirement that a veteran age 65 or older have both
a total and permanent disability as well as the additional
disabling conditions set forth in section 1521(e) in order to
qualify for the additional benefits.
According to the Court's opinion, Mr. Hartness was a World
War II veteran, over the age of 65, who had originally sought a
special monthly pension under section 1521 on the basis of both
needing aid and attendance and being housebound. On appeal to
the Court, Mr. Hartness dropped the aid and attendance element
of his claim, focusing only on his meeting the criteria for the
special benefit on the basis of being housebound. Also on
appeal to the Court, Mr. Hartness shifted the focus of his
argument from being entitled to pension under section 1521 and
instead argued, for the first time, that he was entitled to
this special benefit under section 1513.
The Court ruled that ``the Board [of Veterans' Appeals]
failed to apply section 1513 when considering whether Mr.
Hartness was entitled to a special monthly pension under
section 1521(e)'' and that ``a wartime veteran is awarded a
special monthly pension if, in addition to being at least 65
years old, he or she possesses a minimum disability rating of
60% or is considered permanently housebound.'' Hartness, 20
Vet. App. at 217, 221-22 [emphasis added].
It is the Committee's view that the Court, in ruling that
VA must apply the age criteria of the service pension paid
under section 1513 to non-service-connected disability benefits
paid under section 1521, misunderstood the intent of the
service pension provided to older veterans under section 1513
and, in particular, subsection (b) of that section.
In its decision, the Court did not discuss the difference
between service pensions and disability pensions; rather, the
Court appeared to treat the two provisions in a similar
fashion, understanding section 1513 to mean that older veterans
could obtain significantly higher benefits, with their age
substituting for the permanent and total disability requirement
of section 1521(e).
The Committee recognizes the difficulty faced by the Court
in Hartness in interpreting the two provisions and their
relationship. The legislative history of section 207 of H.R.
1291, which added section 1513 to title 38, is sparse. In
addition, the Court was hampered in its analysis by the
apparent failure of VA to address in its brief the criteria for
benefits under section 1513, including the limitation of
subsection (b), and the ambiguous nature of the record with
regard to Mr. Hartness' eligibility for benefits under section
1521. Hartness at 222. Finally, the Court noted that VA's
regulations, 38 C.F.R. Sec. Sec. 3.3 and 3.351, do not
distinguish between the service pension paid under section 1513
and the non-service-connected disability pension paid under
section 1521. Hartness at 221.
Based on the Court's decision, it appears that VA argued
that, ``as a matter of law, Mr. Hartness is not entitled to a
special monthly pension because he does not have a disability
that is rated as permanent and total * * *.'' Hartness at 218
[emphasis added]. As a result, VA claimed that ``Mr. Hartness
does not meet the threshold requirements of 38 C.F.R.
Sec. 3.351(d).'' Id.
The factual basis for VA's position is not articulated in
the decision. As the Court notes, the record on appeal is
ambiguous as to Mr. Hartness' eligibility for non-service-
connected pension and special monthly pension under section
1521. Hartness at 222.
Under VA's regulations, the criteria for permanent total
disability are met ``when the impairment is reasonably certain
to continue throughout the life of the disabled person.'' 38
C.F.R. Sec. 4.15. Total disability for pension purposes may be
found when the veteran has a single disability rated at 60
percent and is unemployable. 38 C.F.R. Sec. Sec. 4.16, 4.17.
Mr. Hartness was rated at 70 percent for one disability
described as permanent. The Court cited, without disagreement,
a physician report that ``Mr. Hartness was permanently and
legally blind because of age-related macular degeneration of
the retina.'' Hartness at 217 [emphasis added]. The Court's
decision indicates that he relied on Social Security benefits
for income and made no reference to any evidence suggesting
that the veteran was employable. Id. On these facts, it is
unclear why VA believed Mr. Hartness did not meet the permanent
and total disability criteria of section 1521.
In light of these ambiguous factual matters, and given the
prohibition on paying benefits under section 1513(b) to
veterans who also qualify for benefits under section 1521, it
is the Committee's view that the Court misconstrued the intent
of section 1513, which is to provide only a service pension
without any special monthly pension to older veterans who are
not disabled under the criteria set forth in section 1521.
As noted above, the Court did not discuss the difference
between service and disability pensions. Rather, the Court
apparently understood the prohibition against paying benefits
under section 1513(b) if the veteran were eligible for benefits
under section 1521 to mean that older veterans could obtain
significantly higher benefits under section 1521(e) with their
age substituting for the permanent and total disability
requirement of that section. As a result, following Hartness,
older veterans who have only one 60 percent disability would be
eligible for benefits paid at the housebound rate under section
1521(e) while younger veterans rated at 60 percent would only
qualify for the basic pension amount. There is nothing in the
legislative history of section 1513 to suggest that Congress
intended such a disparate result.
In establishing a service pension for older veterans under
section 1513, the Committees on Veterans' Affairs of the Senate
and House ``determined that aged wartime veterans should be
provided a needs-based pension under conditions similar to that
provided for veterans of the Indian Wars and the Spanish
American War.'' JES at S13239. Thus, section 1513 was placed in
the ``Service Pension'' part of Subchapter II (Veterans'
Pensions) of chapter 15, the portion of the chapter under which
veterans of the Indian Wars and the Spanish American War were
entitled to pension benefits, by section 1511 and 1512, without
regard to disability, rather than in the ``Non-Service-
Connected Disability Pension'' part of that subchapter where
section 1521 is located.
Service benefits based upon age, and limited means, are
provided under section 1513 to low-income wartime veterans who
are age 65 and older. There is no requirement that veterans who
receive a pension based upon age suffer from any disability,
although some of these veterans may also have disabilities.
Under sections 1511 and 1512, the provisions under which
older veterans who served during the Indian and Spanish
American Wars were eligible for service pensions, veterans who
were also disabled and thereby also eligible for pensions under
section 1521, could make an irrevocable election to receive
disability pension benefits under that section rather than
service pension benefits. In enacting section 1513, however,
the Congress did not provide such an option. Under section
1513(b), if a veteran is age 65 or older and also disabled,
that veteran can only receive benefits under the non-service-
connected disability pension of section 1521 and is not
eligible to receive benefits under the service pension program
provided by section 1513.
Section 1513 is silent with regard to any specific
provision for housebound or aid and attendance benefits. The
formal legislative history of section 207 of Public Law 107-103
contained in the JES is likewise silent. However, while not
reflected in the JES, the Committee notes that the language of
section 1513 is identical to the language contained in H.R.
3087 of the 107th Congress, the proposed ``Veterans' Pension
Improvement Act of 2001,'' as introduced by Congressman Lane
Evans, the then-Ranking Democratic Member of the House
Committee on Veterans' Affairs. In introducing this
legislation, Mr. Evans stated that, if the bill were enacted,
``VA would only be required to obtain a medical examination and
a finding of disability for those veterans over age 65 who seek
additional benefits based upon a disability which renders them
homebound or in need of aid and attendance.'' [Emphasis added.]
147 Cong. Rec. E1859 (extension of remarks Oct. 12, 2001)
(statement of Rep. Evans) (hereinafter, ``Evans
Introduction'').
Like H.R. 3087, section 1513(b) as enacted specifically
provides that a veteran who qualifies for a pension based upon
age, who also meets the disability criteria of section 1521, is
to be paid only under section 1521. There was no suggestion in
the Evans Introduction or in the enactment of the legislation
that added section 1513 to title 38 that the age requirements
of a service pension under section 1513 were intended to serve
as a substitute for the total and permanent disability
requirements for housebound or aid and attendance benefits paid
under section 1521, as the Hartness decision holds.
Subsection (a) of section 1513 does require that the rates
used to pay service pensions paid under that section will be
``the rates prescribed by section 1521 of this title and under
the conditions (other than the permanent and total disability
requirement) applicable to pension paid under that section.''
Benefits paid under section 1513, while paid by reference to
the rates used in section 1521, are not and may not be paid
under section 1521. In discussing the section 1521 cross
reference, the JES explained that:
[t]hese veterans must still meet the nondisability
requirements of section 1521 of title 38, United States
Code, such as income and net worth. In determining that
benefits will be provided at age 65 without regard to
employment status, the Committees noted that any
veteran employed full-time and receiving at least a
minimum wage would not qualify for pension based on the
pension income limitation.
JES at S13239 (compare JES language to Evans Introduction at
E1859).
It is the Committee's view that, by placing the benefits
for aged veterans in the service pension part of chapter 15 of
title 38, with the service pension for Indian and Spanish
American War veterans, the intent was for benefits under
section 1513 to be considered a separate and distinct benefit
from the disability pension provided by section 1521, as was
true for service pensions provided under sections 1511 and
1512.
It is the Committee's further view that subsection (b) of
section 1513 is intended to prohibit a veteran who is both aged
and disabled from receiving benefits under section 1513.
Committee Bill. Section 202 of the Committee bill would
amend section 1513 of title 38 so as to list the separate
provisions of section 1521 that are to be used in connection
with determining eligibility for a service pension under
section 1513 and the amount of benefits to be paid under that
section. The provisions in the Committee bill would exclude the
rates related to special monthly
pension, namely housebound benefits and aid and attendance
benefits contained in subsections (d), (e), (f)(2), (f)(3), and
(f)(4) of section 1521.
These changes would clarify that veterans who qualify for
service pension benefits based upon age under section 1513 are
not eligible to receive special monthly pension under the same
criteria applied in that section. Instead, older veterans must
qualify for special monthly pension benefits under all of the
criteria of section 1521, the same criteria applied to younger
disabled veterans, if they are so disabled as to be housebound
or require aid and attendance.
Because veterans who are actually housebound or in need of
aid and attendance are likely to qualify for benefits under the
criteria set forth in section 1521 under any circumstances, the
Committee bill would affect primarily those veterans who are
age 65 and older and who are not significantly disabled.
The Committee bill provides that the proposed modification
to section 1513 would be effective with respect to claims for
pension filed on or after the effective date of the Committee
bill.
Sec. 203. Clarification of additional requirements for consideration to
be afforded time, place, and circumstances of service in
determinations regarding service-connected disabilities.
Section 203 of the Committee bill, which is derived from
S.919, would require VA to promulgate regulations that direct
how certain circumstances of a claimant's military service
should be considered when determining service-connection.
Background.
A number of precedential decisions of the U.S. Court of Appeals
for Veterans Claims, such as Suozzi v. Brown,\1\ have
recognized that corroboration of every detail of a claimed
combat exposure or event by official military documents is not
required for the resolution of VA claims. Nonetheless, some VA
claims adjudicators have continued to read the requirement of
corroboration narrowly. For example, in Falk v. West,\2\ the
Court found that a veteran's presence on a ship involved in
combat was adequate to corroborate that a veteran assigned to
that particular ship was in combat. VA had earlier denied the
veteran's claim of service-connection for Post-Traumatic Stress
Disorder (hereinafter, ``PTSD''), after finding that the record
did not demonstrate that veteran had served in combat or had
been exposed to the claimed stressors. The decision in
Pentecost v. Principi \3\ noted that a veteran's presence in a
specific unit during a combat event is sufficient corroboration
of exposure to that event. In this case, unit records
corroborated the veteran's assertion that enemy rocket attacks
occurred during the time period he was stationed at the
airbase. The Court found that the veteran's unit records were
credible evidence that the rocket attacks that the veteran
alleged did occur. However, VA had earlier determined that the
veteran had not corroborated his alleged in-service stressor
with independent evidence. Despite these precedents, recent
Court decisions, such as Castle v. Mansfield \4\ and Bobby King
v. Peake,\5\ consistently demonstrate that proper consideration
of lay evidence is still not being accorded by VA when the
place and conditions of military service are generally
documented.
---------------------------------------------------------------------------
\1\Suozzi v. Brown, 10 Vet. App. 307 (1997).
\2\Falk v. West, 12 Vet. App. 402 (1999).
\3\Pentecost v. Principi, 16 Vet. App. 124 (2002).
\4\Castle v. Mansfield, No. 05-3010, 2007 U.S. App. Vet. Claims
LEXIS 1938 (U.S. App. Vet. Cl. Dec. 13, 2007).
\5\Bobby King v. Peake, No. 08-0033, 2008 U.S. App. Vet. Claims
LEXIS 1177 (U.S. App. Vet. Cl. Nov. 6, 2008).
---------------------------------------------------------------------------
Committee Bill. Section 203 of the Committee bill would
direct VA to promulgate regulations that direct how VA should
generally consider lay evidence that is consistent with the
place, conditions, dangers, or hardships associated with a
particular veteran's military service. The Committee intends
that the requirement to consider lay evidence in assessing the
place, conditions, dangers, and hardships of service not be
limited to combat service, but also include other types of
exposures, including environmental conditions. For example, in
assessing lay testimony concerning a claimant's exposure to
sub-freezing conditions, the regulation may acknowledge that
lay evidence, such as weather reports or contemporaneous
newspaper accounts of sub-freezing conditions, may provide
corroboration of exposure to the cold when a servicemember was
assigned to an area when sub-freezing conditions were present.
Another example: In a claim alleging hearing loss or tinnitus,
although an individual's service record might not include
details of exposure to improvised explosive devices
(hereinafter, ``IEDs''), the individual may have been assigned
to a particular unit at a particular location where lay
evidence shows that the unit was repeatedly exposed to IEDs.
The Committee expects that the regulations required by this
section would encourage the development of common-sense
guidance to claims adjudicators, from the Department, about how
the circumstances of a claimant's military service should be
considered when evaluating a claim for service-connection.
Sec. 204. Extension of reduced pension for certain veterans covered by
Medicaid plans for services furnished by nursing facilities.
Section 204 of the Committee bill would extend, from the
end of fiscal year 2011 to the end of fiscal year 2014, the
expiration date for provisions that reduce VA pension for
certain beneficiaries with no dependents who are covered by
Medicaid plans for services furnished by nursing facilities.
Background. Public Law 101-508, the Omnibus Budget
Reconciliation Act of 1990, reduced VA pension for certain
veterans in receipt of Medicaid-covered nursing home care to no
more than $90 per month, for any period after the month of
admission to the nursing care facility. This authority expired
on September 30, 1992, and was extended through 1997 in Public
Law 102-568, the Veterans' Benefits Act of 1992; through 1998
in Public Law 103-66, the Omnibus Budget Reconciliation Act of
1993; through 2002 in Public Law 105-33, the Balanced Budget
Act of 1997; through 2008 in Public Law 106-419, the Veterans'
Benefits and Health Care Improvement Act of 2000; and through
2011 in Public Law 107-103, the Veterans' Education and
Benefits Expansion Act of 2001.
Committee Bill. Section 204 of the Committee bill would
amend section 5503(d)(7) of title 38 to extend, from September
30, 2011, to September 30, 2014, the authority for limitation
of VA pension to $90 per month for certain beneficiaries
receiving Medicaid-covered nursing home care.
Sec. 205. Enhancement of disability compensation for certain disabled
veterans with difficulties using prostheses and disabled
veterans in need of regular aid and attendance for residuals of
traumatic brain injury.
Section 205 of the Committee bill, which is derived from
S.1015, would provide higher levels of VA compensation to
certain veterans who experience difficulty using prostheses or
who have a severe TBI.
Subsec. 205(a). Veterans suffering anatomical loss of
hands, arms, or legs.
Section 205(a) of the Committee bill would allow veterans
who suffer certain severe anatomical losses and are impeded
from using prosthetic devices, for any reason, to qualify for
higher levels of VA compensation.
Background. Under subsections (a) through (j) of section
1114 of title 38, VA pays disability compensation to a veteran
based on the rating assigned to the veteran's service-connected
disabilities. Under subsections (m), (n), and (o) of section
1114, higher levels of monthly compensation are paid to
veterans with severe disabilities if certain criteria are
satisfied.
The criteria for compensation under section 1114(m) include
``the anatomical loss * * * of both legs at a level, or with
complications, preventing natural knee action with prostheses
in place'' or ``the anatomical loss * * * of one arm and one
leg at levels, or with complications, preventing natural elbow
and knee action with prostheses in place.'' The criteria for
compensation under section 1114(n) include ``the anatomical
loss * * * of both arms at levels, or with complications,
preventing natural elbow action with prostheses in place'';
``the anatomical loss of both legs so near the hip as to
prevent the use of prosthetic appliances''; or ``the anatomical
loss of one arm and one leg so near the shoulder and hip as to
prevent the use of prosthetic appliances.'' The criteria for
compensation under section 1114(o) include ``the anatomical
loss of both arms so near the shoulder as to prevent the use of
prosthetic appliances.''
Committee Bill. Section 205(a) of the Committee bill would
amend subsections (m), (n), and (o) of section 1114 to remove
the provisions conditioning higher monthly compensation on the
site of, or complications from, an anatomical loss. Instead, if
the other requirements are satisfied, it would allow the higher
rates to be paid if any factors prevent natural elbow or knee
action with prostheses in place or prevent the use of
prosthetic appliances.
Subsec. 205(b). Veterans with service-connected
disabilities in need of regular aid and attendance
for residuals of traumatic brain injury.
Section 205(b) of the Committee bill would allow veterans
suffering from severe TBIs to receive the highest level of aid
and attendance benefits from VA.
Background. Under subsections (a) through (j) of section
1114 of title 38, VA pays disability compensation to a veteran
based on the rating assigned to the veteran's service-connected
disabilities. Currently, the monthly compensation ranges from
$123 per month for a single veteran with no dependents rated 10
percent to $2,673 per month for the same single veteran rated
100 percent. Under section 1114(l) of title 38, VA provides a
higher amount of compensation, currently $3,327 per month for a
single veteran, if the veteran is ``in need of regular aid and
attendance.''
A veteran who requires regular aid and attendance may be
entitled to an additional $2,002 per month, under section
1114(r)(1) of title 38 if the veteran suffers from severe
service-connected physical disabilities. Also, under section
1114(r)(2), a higher level of aid and attendance compensation,
currently an additional $2,983 per month, is provided to
certain veterans with severe service-connected disabilities who
need ``a higher level of care'' in addition to regular aid and
attendance. Under section 1114(r)(2), this higher level of
compensation generally is provided only to a veteran who has
suffered a severe anatomical loss, who needs ``health-care
services provided on a daily basis in the veteran's home,'' and
who would require institutionalization in the absence of that
care.
In 2007, the Veterans' Disability Benefits Commission
provided its views on these aid and attendance provisions:
``[T]he primary focus is on physical impairments and
locomotion. Very little emphasis is placed on cognitive (e.g.,
TBI) or psychological impairments and the needs of those
conditions for supervision and management as well as aid and
attendance.'' When asked whether VA agreed with that
assessment, a VA representative testified at the Committee's
April 29, 2009, hearing that the higher level of aid and
attendance compensation ``doesn't focus on the cognitive
disabilities.''
In connection with the Committee's April 29, 2009, hearing,
the Committee also received written testimony from Sarah Wade,
the wife of a veteran, Ted Wade, who suffered a severe TBI
while serving in Iraq. In part, Mrs. Wade provided this
assessment of the current law:
Though veterans with severe TBI may require 24-hour
care, supervision for safety, or assistance with most,
or all, higher level activities, they are not always
provided the same level of compensation as a veteran
with a severe physical disability. Though a veteran
with a severe TBI may be able to perform some
[independent activities of daily living], they may
require prompting to do them or it may take much longer
to complete these tasks than it would have pre-injury.
These veterans not only need assistance with tasks they
can no longer perform, but also someone to facilitate,
or to accomplish ones they cannot keep up with. Without
the aid of a family member with additional resources,
although having no major physical disabilities, these
veterans are not able to reside in their own homes, and
therefore, will require residential care. A veteran who
requires a greater amount of assistance, in the home or
out in the community, medical or non-medical, should be
considered for compensation under 1114(r)(1) and
1114(r)(2). We believe all veterans should be given
access to the community whenever medically possible,
not homebound, and [aid and attendance] should be
changed to allow that.
Committee Bill. Section 205(b) of the Committee bill would
add a new subsection (t) to section 1114, which would provide
that, if a veteran is in need of regular aid and attendance due
to the residuals of TBI, is not eligible for compensation under
section 1114(r)(2), and, in the absence of regular aid and
attendance, would require institutional care, the veteran will
be entitled to a monthly aid and attendance allowance
equivalent to the allowance provided under section 1114(r)(2).
This change would take effect on August 31, 2010.
The Committee believes that these changes would provide
veterans suffering from severe TBIs with the resources to
arrange whatever services they may need to live as
independently as possible in their own homes and to integrate
as fully as they can into their communities.
Sec. 206. Commencement of period of payment of original awards of
compensation for veterans retired or separated from the
uniformed services for disability.
Section 206 of the Committee bill, which is derived from
S.1016, would eliminate the statutorily-required delay in how
soon after discharge from service a catastrophically injured
veteran may begin to receive VA disability compensation.
Background. In general, if a servicemember is injured
during service, the servicemember may go through the disability
evaluation process at DOD to determine whether the individual
is fit for duty and, if found to be unfit, to determine what
rating, between 0 and 100 percent, should be assigned to the
disabilities that render the servicemember unfit. If the
servicemember is assigned a rating of 30 percent or higher by
DOD, the servicemember will be medically retired from the
military. Then, the injured veteran may go through the
disability evaluation process at VA to be assigned a disability
rating, which will determine the level of monthly disability
compensation the veteran will receive from VA.
Because of concerns about the delays and complexities of
this disability evaluation system, DOD and VA have taken steps
to reduce the time it takes to navigate the system and to
create a smoother transition from military to civilian life.
For one thing, DOD and VA recently created an expedited
disability evaluation process for servicemembers who have
suffered catastrophic injuries as a result of armed conflict.
That expedited process will allow the injured servicemember to
receive an automatic 100 percent rating from DOD and begin
directly with the VA disability rating process.
Although this and other actions taken by VA and DOD may
help speed up the disability evaluation process, transitioning
servicemembers still may experience a delay in receiving their
VA disability compensation because of statutory mandates.
Specifically, under section 5110(b)(1) of title 38, if a
veteran files a claim for VA disability compensation within 1
year after being discharged from military service, the
effective date of an award of service connection will be the
day after the date of discharge. However, under section 5111(a)
of title 38 the effective date for payment of compensation
based on that award will not be until the first day of the
month following the month in which the service-connection award
is effective.
As a result, if a servicemember suffered catastrophic
injuries during service, there may be a delay in the veteran's
receipt of VA disability compensation, even if VA is prepared
to award the veteran service connection immediately upon his or
her discharge from service. For example, if an individual is
medically retired from the military on June 30, the veteran's
effective date for the award of service connection would be
July 1, the effective date for the payment of compensation
would be August 1, and the first VA disability compensation
check would be sent on September 1, paying for August but not
for July.
Committee Bill. Section 206 of the Committee bill would
amend section 5111 of title 38 to provide that, if a veteran is
retired from the military for a catastrophic disability or
disabilities, payment of disability compensation based on an
original claim for benefits will be made as of the date on
which the award of compensation becomes effective.
``Catastrophic disability'' would be defined as a permanent,
severely disabling injury, disorder, or disease that
compromises the ability of the veteran to carry out the
activities of daily living to such a degree that the veteran
requires personal or mechanical assistance to leave home or
bed, or requires constant supervision to avoid physical harm to
self or others. These changes would take effect on the date of
enactment and would apply with respect to awards of VA
compensation based on original claims for benefits that become
effective on or after that date.
These changes will allow a catastrophically disabled
veteran to leave military service at whatever time best suits
his or her needs, without the stress and financial burden that
may be caused by a delay in receiving VA disability
compensation.
Sec. 207. Applicability of limitation to pension payable to certain
children of veterans of a period of war.
Section 207 of the Committee bill, which is derived from
S.728 as introduced, would treat surviving adult-disabled
children of veterans, who receive VA death pension and are
Medicaid recipients residing in nursing homes, in the same
manner as veterans and surviving spouses.
Background. As described in connection with section 204 of
the Committee bill, under current law, a veteran with no
dependents who is entitled to receive pension under section
1521 of title 38 cannot be paid more than $90 per month if the
veteran is in a nursing facility where services are covered by
a Medicaid plan. In instances where a veteran's surviving
spouse is entitled to receive pension under section 1541 of
title 38, the surviving spouse also cannot be paid more than
$90 per month if the surviving spouse has no dependents and is
in a nursing facility where services are covered by a Medicaid
plan. The $90 pension benefit may not be counted in determining
eligibility for Medicaid or the patient's share of cost. It is
to be available to the pensioner and may be used to meet his or
her personal needs not provided under Medicaid, such as
clothing and personal care items.
Under section 101(4)(A) of title 38, a child is defined as
a person who is unmarried and under the age of 18 years; before
reaching the age of 18 years, became permanently incapable of
self-support; or, after attaining the age of 18 years and until
completion of education or training, but not after attaining
the age of 23 years, is pursuing a course of instruction at an
approved educational institution. Such a child is entitled to
pension under section 1542 of title 38 if the income of the
child is less than the statutory benefit amount payable to the
child. If such a child is admitted to a nursing facility where
services are covered by a Medicaid plan, the pension benefits
for the child are not currently reduced to $90.
Committee Bill. Section 207 of the Committee bill would
amend section 5503 of title 38 so that adult-disabled children
of veterans who receive pension under section 1542 of title 38
and are covered by a Medicaid plan while residing in nursing
homes, would have their pension benefits reduced in the same
manner as veterans and surviving spouses.
Sec. 208. Payment of dependency and indemnity compensation to survivors
of former prisoners of war who died on or before September 30,
1999.
Section 208 of the Committee bill would provide for the
payment of DIC to the survivors of former POWs who died on or
before September 30, 1999, under the same rules as applied to
survivors of former POWs who die or have died after that date.
Background. Under chapter 13 of title 38, DIC is paid to
the surviving spouse or children of a veteran when the
veteran's death is a result of a service-connected disability.
In addition, VA provides DIC to the surviving spouses and
children of veterans who have died after service from a non-
service-connected disability if the veteran had been totally
disabled due to a service-connected disability for a continuous
period of 10 or more years immediately preceding death or for a
continuous period of at least 5 years after the veteran's
release from service.
Prior to Public Law 106-117, the Veterans' Millennium
Health Care and Benefits Act, the survivors of former POWs were
eligible for DIC under the same rules as all other survivors.
However, there were concerns that many former POWs died before
they met the 10-year statutory requirement and their surviving
spouses were therefore not eligible for DIC. Section 501 of
Public Law 106-117 extended eligibility for DIC to the
survivors of former POWs who died after September 30, 1999,
from non-service-connected causes if the former POWs were
totally disabled due to a service-connected cause for a period
of 1 or more years, rather than 10 or more years, immediately
prior to death.
Committee Bill. Section 208 of the Committee bill would
amend section 1318(b)(3) of title 38 to make all survivors of
former POWs eligible for DIC if the veteran died from non-
service-connected causes and was totally disabled due to a
service-connected condition for a period of 1 or more years
immediately prior to death, without regard to date of death.
TITLE III--READJUSTMENT AND RELATED BENEFIT MATTERS
Sec. 301. Repeal of limitation on number of veterans enrolled in
programs of independent living services and assistance.
Section 301 of the Committee bill, which is derived from
S.514, would repeal the limitation on the number of veterans
who are authorized to enroll annually in a program of
independent living services and assistance conducted under
chapter 31 of title 38, U.S.C.
Background. Under current law, individual veterans for whom
a determination is made that a program of rehabilitation
leading to employment is not reasonably feasible may be
eligible for enrollment in a program of independent living
services, which is designed to help the veterans achieve a
maximum level of independence in daily life. However, the
number of veterans who in any 1 year may enroll in these
programs is capped at 2,600.
VA's Independent Living (hereinafter, ``IL'') Program was
first established in 1980 by Public Law 96-466, the Veterans'
Rehabilitation and Education Amendments of 1980. Initially,
that law provided for the establishment of a 4-year pilot
program designed to provide independent living services for
severely disabled veterans for whom the achievement of a
vocational goal was not reasonably feasible. The number of
veterans who could be accepted annually into the IL pilot
program was capped at 500. In 1986, the program was extended
through 1989 and then, in 1989, it was made permanent by Public
Law 101-237, the Veterans' Benefits Amendments of 1989. In
2001, the 500 annual cap on enrollees was increased to 2,500 by
Public Law 107-103, the Veterans Education and Benefits
Expansion Act of 2001. Last year, Public Law 110-389, the
Veterans' Benefits Improvement Act of 2008, further increased
the cap to 2,600.
In earlier years, as a pilot project, the cap may have been
appropriate in order to provide VA with an opportunity to
manage the program in the most effective manner possible. In
2001, it made sense to increase that cap in light of the
increased demand and need for the program. Now, however, since
this important program is designed to meet the needs of the
most severely service-connected disabled veterans and more of
those returning from combat have suffered the kind of
devastating injuries that may make employment not reasonably
feasible for extended periods of time, it makes sense to lift
the cap altogether.
In a report issued in December 2007, VA's Inspector General
found that ``[T]he effect of the statutory cap has been to
delay IL services to severely disabled veterans.'' This delay
happens because VA has developed a procedure that holds
veterans in a planning and evaluation stage when the statutory
cap may be in danger of being exceeded.
Committee Bill. Section 301 of the Committee bill would
amend section 3120 of title 38 so as to strike subsection (e)
to eliminate the cap on the IL program entirely.
The Committee is concerned that the effect of any cap is to
put downward pressure on VA's enrollment of eligible veterans
in this very important program. This is of particular concern
when so many of today's returning servicemembers suffer from
disabilities that may require extensive periods of
rehabilitation and assistance in achieving independence in
their daily lives that can result from such conditions as TBI
or PTSD.
VA, which has testified in the past that this enrollment
cap does not present any problem for the effective conduct of
the program, has now also testified in support of the
elimination of the annual enrollment cap.
Sec. 302. Eligibility of disabled veterans and members of the Armed
Forces with severe burn injuries for automobiles and adaptive
equipment.
Section 302 of the Committee bill, which is derived from
S.728 as introduced, would provide automobile and adaptive
equipment assistance to disabled veterans and servicemembers
with severe burn injuries.
Background. Under current law, section 3901 of title 38,
veterans and members of the Armed Forces are eligible for
assistance with automobiles and adaptive equipment if they
suffer from one of three qualifying service-connected
disabilities: loss or permanent loss of use of one or both
feet; loss or permanent loss of use of one or both hands; or a
central visual acuity of 20/200 or less or a peripheral field
of vision of 20 degrees or less. Individuals with these
disabilities experience great difficulty operating a standard
automobile not equipped to accommodate their disabilities.
During an oversight visit to the Brooke Army Medical Center
(hereinafter, ``BAMC'') in San Antonio, Texas, Committee staff
learned that victims of severe burn injuries also experience
great difficulty operating standard automobiles. BAMC is DOD's
leading center for the treatment and rehabilitation of burn
victims and the home of the U.S. Army's Institute of Surgical
Research Burn Unit. Staff at BAMC indicated that, like amputees
and the vision impaired, severe burn victims frequently need
vehicles with special adaptations. Due to the severe damage
done to their skin, burn victims often require special
adaptations for assistance in and out of the vehicle, seat
comfort, and climate control.
Committee Bill. Section 302 of the Committee bill would
amend section 3901 of title 38 so as to include individuals
with a service-connected disability due to a severe burn
injury, effective October 1, 2010. The scope and definition of
what constitutes a disability due to a severe burn injury would
be determined pursuant to regulations prescribed by VA.
Sec. 303. Enhancement of automobile assistance allowance for veterans.
Section 303 of the Committee bill, which is derived from
S.820, would increase and provide an index for an existing VA
grant program, which provides funds to assist severely disabled
veterans in purchasing automobiles or other conveyances that
can accommodate their disabilities.
Background. In 1946, when VA's automobile assistance
program began, the $1,600 automobile allowance represented 85
percent of the average retail cost of an automobile. Currently,
the $11,000 benefit represents only 37.8 percent of the cost of
a new automobile. A benefit of $22,500 would equal 77.4 percent
of the March 2009 average new vehicle cost, which is $29,061,
and even that figure may be inadequate as many severely
disabled veterans require larger and more expensive vehicles to
accommodate their disabilities.
Committee Bill. Section 303 of the Committee bill would
amend section 3902 of title 38 to increase the maximum
authorized automobile assistance allowance from $11,000 to
$22,500, effective October 1, 2010. Section 303 would also
direct VA to establish a method of determining the average
retail cost of new automobiles for the preceding calendar year.
The maximum allowance would increase, effective October 1 of
each fiscal year, beginning in 2011, to an amount equal to 80
percent of what VA determined to be the average retail cost of
new automobiles for the preceding calendar year.
The Committee notes that increases in automobile and
adaptive equipment grants have been infrequent, despite the
fact that the market prices of these items continue to rise.
Unless the amounts of the grants are periodically adjusted,
inflation erodes the value and effectiveness of these benefits,
making it more difficult for beneficiaries to afford the
accommodations they need. This legislation aims to help
veterans live independently and recognizes that transportation
is a crucial part of independent living.
Sec. 304. Payment of unpaid balances of Department of Veterans Affairs
guaranteed loans.
Section 304 of the Committee bill, which is derived from
S.842, would reinforce VA's authority to purchase a VA-
guaranteed home loan from the mortgage holder, if the loan is
modified by a bankruptcy judge under the authority of section
1322(b) of title 11, U.S.C., by paying the unpaid balance of
the loan, plus accrued interest, as of the date a bankruptcy
petition is filed. The mortgage holder would first have to
assign, transfer, and deliver to VA all rights, interest,
claims, evidence, and records with respect to the housing loan.
Background. The mission of the VA Home Loan Guaranty
program is to help veterans and active duty personnel purchase
and retain homes in recognition of their service to the Nation.
In addition, the unmarried surviving spouse of a veteran who
died on active duty or as the result of a service-connected
disability is also eligible for the home loan benefit.
Since its inception, the VA Home Loan Guaranty program has
guaranteed over $1 trillion which accounts for 18.6 million
loans to veterans. The Committee recognizes that this program
has been successful. The VA home loan program has made mortgage
credit available to many veterans whose loans otherwise would
not have been made. In this connection, although VA borrowers
have been directly favored by the more liberal terms on those
loans, it is possible that these terms have induced a
competitive liberalization of the terms on conventional
mortgages, whose recipients have benefited as well. As a
result, the impact of the VA home loan programs on the economy
and on the mortgage market may exceed the actual volume of VA
home loans.
While section 3732 of title 38 provides default procedures
for VA home loans and illustrates the actions VA may take to
preserve the loan before suit or foreclosure, it does not
address what would occur in the event an individual files for
bankruptcy and a loan is modified under the authority provided
under section 1322(b) of title 11.
In the last 20 years, through its supplemental services, VA
has assisted over 158,000 veterans, with VA-guaranteed loans at
risk of foreclosure, retain their homes. These efforts have
saved an estimated $3.2 billion. Amending the default
procedures to include actions to be taken in the event a loan
is modified under title 11 gives lenders more confidence in
approving loans to veterans, which is advantageous to
individuals during hard economic times.
Committee Bill. Section 304 of the Committee bill would
amend section 3732(a)(2) by adding a new subparagraph that
would authorize additional default procedures for VA home loans
in the event that a VA home loan is modified under the
authority provided under section 1322(b) of title 11. This new
authority would allow VA to pay the holder of the obligation
the unpaid balance of the obligation due as of the date of the
filing of the petition under title 11 plus accrued interest,
but only upon the assignment, transfer, and delivery to VA in a
form and manner satisfactory to VA of all rights, interest,
claims, evidence, and records with respect to the housing loan.
TITLE IV--EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE
UNIFORMED SERVICES
Sec. 401. Waiver of sovereign immunity under the 11th Amendment with
respect to enforcement of USERRA.
Section 401 of the Committee bill, which is derived from
S.263, would limit the ability of state employers to thwart
enforcement of their employees' USERRA rights by asserting
their immunity from individual suit under the 11th Amendment of
the U.S. Constitution.
Background. Under existing law, USERRA provides a number of
important and substantive rights to an individual who leaves
civilian employment when called to active duty military
service--including the right to be reemployed by his or her
pre-service employer after the completion of military service,
the right to reenroll in employee-sponsored health care plans,
and the right to continue to accrue seniority in a civilian
position during a period of military service. The term
``employer'' for USERRA purposes is broadly defined and
specifically includes state governments. The inclusion of
states as employers, however, has become a problem of
constitutional dimensions when it comes to the enforcement
mechanisms that are available.
As originally enacted in 1994, section 4323 of USERRA
permitted an individual to sue a State in Federal court, with
private counsel or through the assistance of Department of
Justice (hereinafter, ``DOJ''). In 1996, however, the Supreme
Court decided Seminole Tribe of Florida v. Florida, 517 U.S. 44
(1996), which held, among other things, that Congress cannot
abrogate 11th Amendment sovereign state immunity based on
powers that predate the 11th Amendment. USERRA is based upon
the ``war powers'' clauses of Article I, Section 8 of the
Constitution, which predates the 11th Amendment by 8 years, and
therefore the U.S. Court of Appeals for the Seventh Circuit, in
applying Seminole Tribe, held that USERRA did not override
state sovereignty. Velasquez v. Frapwell, 160 F.3d 389 (7th
Cir. 1998).
Congress responded to Velasquez by amending USERRA later in
1998 to authorize the Attorney General of the United States to
bring a USERRA action against a State as an employer in the
name of the United States as a plaintiff in the action. See 38
U.S.C. Sec. 4323(a)(1). This addressed the 11th Amendment
problem, because the 11th Amendment precludes suits against
States in Federal court brought by individuals, but does not
preclude a lawsuit against a State brought by the Attorney
General in the name of the United States as plaintiff. Congress
also amended USERRA in 1998 to replace the authority for
private individuals to sue State employers in Federal court
with authority to bring such suits in a State court of
competent jurisdiction. McIntosh v. Partridge, 540 F.3d 315,
321 (5th Cir. 2008); Townsend v. University of Alaska, 543 F.3d
478, 482 (9th Cir. 2008). Since the Supreme Court decided
Seminole Tribe and Alden v. Maine, 527 U.S.706 (1999) (States
retain a residual sovereign immunity to private suits in their
own courts that is similar to States' immunity to private suits
in Federal courts), however, courts have held that Federal
statutory provisions permitting private, individual suits
against States are prohibited by the 11th Amendment in the
absence of a waiver of sovereign immunity by the State. See,
e.g., Larkins v. Department of Mental Health, 806 So.2d 358
(Ala. 2001).
Thus, while under existing law DOJ has the authority, and
has exercised its authority, to bring actions against States in
Federal district court on behalf of individuals in the name of
the United States, individual State employees represented by
private counsel or by themselves are not able to pursue
important USERRA protections unless their State has waived its
sovereign immunity.
Committee Bill. Section 401 of the Committee Bill would
amend section 4323 of title 38, by conditioning a State's
receipt or use of Federal financial assistance on its waiving
State sovereign immunity to lawsuits brought under the USERRA
protections by individuals who are or were employees or who
apply for employment or reemployment in programs or activities
that receive or use Federal financial assistance. The bill also
restores the ability of private plaintiffs to bring USERRA
suits against State employers in Federal court.
Sec. 402. Clarifying the definition of ``successor in interest.''
Section 402 of the Committee bill, which is derived from
S.263, would amend section 4303 of title 38 to clarify the
definition of ``successor in interest'' by incorporating
language that mirrors the regulatory definition adopted by the
Department of Labor (hereinafter, ``DOL'').
Background. Section 4303 of title 38 uses a broad
definition of the term ``employer'' for purposes of USERRA,
which includes in subsection (4)(A)(iv) a ``successor in
interest.'' In regulations, DOL has provided that an employer
is a ``successor in interest'' where there is a substantial
continuity in operations, facilities, and workforce from the
former employer. Section 1002.35 of title 20, C.F.R., further
stipulates that the determination of whether an employer is a
successor in interest must be made on a case-by-case basis
using a multifactor test.
One Federal court, however, in a decision made prior to the
promulgation of that regulation, held that an employer could
not be a successor in interest unless there was a merger or
transfer of assets from the first employer to the second. See
Coffman v. Chugach Support Services, Inc., 411 F.3d 1231 (11th
Cir. 2005); but see Murphree v. Communications Technologies,
Inc., 460 F. Supp. 2d 702 (E.D. La 2006) (applying section
1002.35 of title 20, C.F.R., and rejecting the Coffman merger
or transfer of assets requirement).
Committee Bill. Section 402 of the Committee bill would
clarify the definition of ``successor in interest'' by
incorporating into USERRA DOL's multifactor test for successor
in interest.
Sec. 403. Clarifying that USERRA prohibits wage discrimination against
members of the Armed Forces.
Section 403 of the Committee bill, which is derived from
S.263, would clarify that USERRA prohibits wage discrimination
against members of the Armed Forces.
Background. Under current law, section 4311(a) of title 38,
employers may not deny any ``benefit of employment'' to
employees or applicants on the basis of membership in the
uniformed services, application for service, performance of
service, or service obligation. However, the U.S. Court of
Appeals for the Eighth Circuit held in 2002 that USERRA does
not prohibit wage discrimination because ``wages or salary for
work performed'' are specifically excluded from the law's
definition of ``benefit of employment.'' Gagnon v. Sprint
Corp., 284 F.3d 839, 853 (8th Cir. 2002).
Committee Bill. Section 403 of the Committee bill would
amend section 4303(2) of title 38 to make it clear that wage
discrimination is not permitted under USERRA. This is not
intended, however, to require the payment of wages or salaries
for work not performed while on military service.
The Committee is concerned that the Gagnon decision could
lead employers to believe that they may pay their employees
less because they are members of the military or because they
have military obligations, and section 403 aims to prevent any
such mistaken belief.
Sec. 404. Requirement that Federal agencies provide notice to
contractors of potential USERRA obligations.
Section 404 of the Committee bill, which is derived from
S.263, would require Federal agencies to notify government
contractors of their potential USERRA obligations.
Background. The protections required to be provided by the
provisions of USERRA apply to all employers in the private and
public sectors, including the Federal government. Under various
provisions of existing law, Federal agencies are permitted to
enter into contracts with non-governmental entities for a
variety of reasons.
Committee Bill. Section 404 of the Committee bill would
amend the Federal Property and Administrative Services Act of
1949 (41 U.S.C. 251 et seq.) to provide that each contract for
the procurement of property or services entered into by a non-
military agency of the Federal government must contain a notice
that the contractor may have obligations under USERRA. Section
404 would similarly amend title 10, U.S.C., to provide that
contracts entered into by military agencies of the Federal
government must contain such a notice.
The Committee believes that it should be clear to all
Federal agencies and their contractors that they have and share
responsibilities for protecting the USERRA rights of returning
servicemembers who work on Federal contracts.
Sec. 405. Comptroller General of the United States study on
effectiveness of Federal programs of education and outreach on
employer obligations under USERRA.
Section 405 would require a Comptroller General study on
the effectiveness of outreach and education initiatives.
Background. Under existing policies and procedures, the
Federal government conducts a variety of initiatives designed
to outreach to and educate employers, veterans, and
servicemembers about the protections and obligations provided
under USERRA.
Committee Bill. Section 405 of the Committee bill would
require the Comptroller General to conduct a study on the
effectiveness of the variety of outreach and education
initiatives conducted. This section also sets forth specific
assessments and evaluations that would be required to be
addressed in the report, which would be required to be
submitted not later than June 30, 2010.
Sec. 406. Technical amendments.
Committee Bill. Section 406 of the Committee bill would
make three technical and conforming changes to various
provisions of law in order to correct cross references to
various USERRA provisions contained in chapter 43 of title 38
and clarify existing language in the USERRA.
TITLE V--BURIAL AND MEMORIAL MATTERS
Sec. 501. Supplemental benefits for veterans for funeral and burial
expenses.
Section 501, which is derived from S.728 as introduced,
would authorize supplemental benefits for veterans for funeral
and burial expenses.
Background. Our country has long been concerned that
veterans have a proper burial. In 1862, President Lincoln
signed legislation that authorized the establishment of
national cemeteries to ensure a proper burial for soldiers who
died in the service of the country. Congress expanded burial
benefits with the War Risk Insurance Act Amendments of 1917 so
as to avoid a potter's field burial for war veterans. That Act
provided a cash payment, of no more than $100, to pay for
funeral and burial expenses for deaths occurring prior to
separation from military service.
In 1923, the burial allowance was extended to veterans who
died without sufficient assets to pay for burial. The asset
limitation requirement was removed in 1936. In addition,
eligibility for cash payments was extended to veterans who
served during a war or died in the line of duty. In 1946,
Public Law 79-529 increased the burial allowance from $100 to
$150 for war veterans. The increase was justified by the
increase in cost of a funeral and the many costly associated
expenses. In 1958, Public Law 85-674 increased the burial
allowance from $150 to $250. This increase was justified by
increases in the cost of living. In 1973, Congress, in Public
Law 93-43, the National Cemeteries Act, set the amount of
service-connected and non-service-connected burial expenses at
$800 (covering 72 percent of an average adult funeral) and $250
(covering 22 percent of the total cost), respectively. Congress
intended to make
veterans' burial benefits in line with the then-existent system
of Federal civilian employees' burial benefits. The increase
also showed a clear recognition by the Federal government of
its responsibility to veterans who suffered a service-connected
death. In 1978, the burial allowance for a service-connected
death was raised to $1,100 (80 percent of the total cost). The
non-service-connected death allowance rose from $250 to $300,
where it has remained since that time.
Public Law 97-35, the Omnibus Budget Reconciliation Act of
1981, restricted burial benefits to veterans who were in
receipt of or entitled to receive compensation or pension at
the time of death for non-service-connected deaths. The basis
for the restriction was to impose some limitation on who was
entitled to non-service-connected veterans benefits as the
death rates among World War II veterans began to climb. By
restricting the burial benefit, Congress was focusing the
benefits so only the neediest of veterans were entitled to
burial aid. A straight ``needs test'' was rejected because of
the difficulty it would present to VA to administer a program
that used such tax terms as ``net estate'' and ``adjusted gross
income.'' Congress thought it was hard enough for the Internal
Revenue Service to decipher such terms and believed it to be
beyond the capacity of VA. Congress subsequently adopted an
``eligible to receive pension or other compensation from VA''
test. Congress thought this would be easier for VA to
administer with its then-existing pension and compensation
program.
In 2001, in Public Law 107-103, the Veterans' Education and
Benefits Expansion Act of 2001, the service-connected burial
benefit was raised from $1,500 to $2,000 for burial and funeral
expenses for a service-connected death. Legislation at that
time was spurred by the issuance of a VA report in December
2000, which showed the effect of inflation on the burial
benefit. In 1973, the average cost of an adult funeral was
$1,116. In 1999, the average cost for an adult funeral had
increased to $5,157. Funeral costs were rising faster than the
cost of inflation.
According to the National Funeral Directors Association,
the average cost of a funeral, as of December 31, 2006, was
$7,323. Section 501 is intended to increase the burial benefit
to fight the erosion of this important benefit.
Committee Bill. Section 501 would authorize supplemental
benefits for both service-connected and non-service-connected
allowances. Disbursement of these supplemental benefits would
be subject to the availability of funds specifically provided
for that purpose in advance in an appropriations act. VA would
be prohibited from making the supplemental payments if all
funds specifically provided for this purpose in an
appropriations act have already been expended. The supplemental
benefit for those dying from service-connected disabilities
would be $2,100 above the current $2,000 benefit, bringing the
total authorized benefit to $4,100. The non-service-connected-
death supplemental benefit would be $900 in addition to the
current $300, for a total of $1,200 in authorized burial
benefits. Finally, section 501 would also provide for an annual
increase in the authorized supplemental allowance in both
categories to preserve the purchasing power of the benefit.
Sec. 502. Supplemental plot allowances.
Section 502, which is derived from S.728 as introduced,
would authorize supplemental plot allowances.
Background. A growing problem caught the attention of the
Committee in 1972 and helped lead to the establishment of
maximum plot allowances. According to testimony given by Dead
Giveaway, a group of law students, at a 1972 Committee hearing,
cemeteries advertised ``free'' or a ``one time only perpetual
care charge'' to veterans in an attempt to sell veterans plot
space on a ``pre-need basis.'' According to Dead Giveaway's
testimony, the practice of cemetery owners was less of a
patriotic gesture than a business venture. The cemetery
operators charged veterans up to $1,400 for a burial plot when
the national average cost for a plot at that time was $122. In
1972, the Pre-Arrangement Internment Association of America
(PIAA) adopted a resolution stating that, if Congress provided
a plot allowance, then PIAA members would accept the sum
provided by Congress as payment in full for America's veterans.
Public Law 93-43, the same law that formally established
the National Cemetery System in VA, authorized payment of not
more than $250 as a plot or interment allowance in connection
with the burial of deceased veterans who die while properly
admitted to a hospital, nursing home, or domiciliary
administered or paid for by VA. In 1978, Public Law 95-476, the
Veterans' Housing Benefits Improvement Act, increased this
allowance to $300.
Public Law 93-43 also authorized payment of not more than
$150 in connection with the burial of deceased veterans who
choose to be interred at a cemetery not under the jurisdiction
of the United States government. Public Law 107-103 increased
this allowance to $300 in 2001. Thus, as of 2001, plot
allowances authorized in section 2303 of title 38 were
uniformly set at $300.
While the increase in the plot allowance to $300 in 2001
was significant, it has not been adjusted since, although this
amount represents a fraction of what it was worth when the
government began paying the plot allowance in 1973. The 1973
limits were developed as a means of protecting veterans from
being overcharged for interment costs.
Public Law 97-35 limited, effective October 1, 1981,
veterans' burial and funeral benefits under sections 2302 and
2303 of title 38 to burials of deceased veterans who were
entitled to receive VA compensation or pension. Previously, the
plot allowance had been available to any honorably discharged
wartime veteran.
Under current law, VA will pay a $300 plot allowance when a
veteran is buried in a cemetery not under U.S. government
jurisdiction if: the veteran was discharged from active duty
because of a disability incurred or aggravated in the line of
duty; the veteran was receiving compensation or pension, or
would have been if he/she was not receiving military retired
pay; or the veteran died in a VA facility. The plot allowance
may be paid to the state for the cost of a plot or interment in
a state-owned cemetery reserved solely for veteran burials if
the veteran was buried without charge. The plot allowance
cannot be paid to a deceased veteran's employer or a state
agency.
Committee Bill. Section 502 of the Committee bill would
create a program to authorize supplemental benefits to
individuals who are already eligible to receive these benefits.
Disbursement of these supplemental benefits would be subject to
the availability of funds specifically provided for that
purpose in advance in an appropriations act. VA would be
prohibited from making the supplemental payments if all funds
specifically provided for this purpose in an appropriations act
have already been expended.
Section 502 would maintain the current $300 plot allowance
and authorize a new supplemental plot allowance of $445.
Section 502 would also provide for an annual increase in the
authorized supplemental plot allowance to preserve the
purchasing power of the benefit.
TITLE VI--OTHER MATTERS
Sec. 601. National Academies review of best treatments for Gulf War
Illness.
Section 601 of the Committee bill would require VA to
contract with the Institute of Medicine (hereinafter, ``IOM'')
of the National Academies to conduct a comprehensive review of
the best treatments for Gulf War Illness.
Background. The term ``Gulf War Illness'' means a medically
unexplained chronic multisymptom illness, such as chronic
fatigue syndrome, fibromyalgia, and irritable bowel syndrome,
that is defined by a cluster of signs or symptoms relating to
service in the Persian Gulf War in the Southwest Asian theater
of operations or the Post-9/11 Global Operations theaters.
After receiving research reports for more than 15 years on
Gulf War Illness, the Committee seeks to ensure that veterans
are provided the best forms of treatment for this condition.
Committee Bill. Section 601 would require VA to contract
with IOM to gather a group of medical professionals, who are
experienced in treating individuals diagnosed with Gulf War
Illness, in order to conduct a comprehensive review of the best
treatments for this illness. The individuals these medical
professionals must have experience treating must have served
during the Persian Gulf War in the Southwest Asia theater of
operations, or in Afghanistan, Iraq, or any other theater in
which the Global War on Terrorism Expeditionary Medal is
awarded for service.
The final report on the review required by this section
must be submitted to VA and the House and Senate Committees on
Veterans' Affairs by December 31, 2011, and include
recommendations for legislative or administrative actions as
IOM considers appropriate in light of the results of that
review.
Sec. 602. Extension of National Academy of Sciences reviews and
evaluations regarding illness and service in Persian Gulf War.
Section 602 of the Committee bill would extend the National
Academy of Sciences' reviews and evaluations regarding
associations between illnesses and exposures, and health
effects, as a result of Persian Gulf War service.
Background. Public Law 105-277, the Omnibus Consolidated
and Emergency Supplemental Appropriations Act, 1999, required
VA to enter into an agreement with the National Academy of
Sciences to review and evaluate the available scientific
evidence regarding associations between illnesses and exposure
to toxic agents, environmental or wartime hazards, or
preventive medicines or vaccines associated with Persian Gulf
War service. Congress extended these reviews and evaluations in
Public Law 107-103, the Veterans Education and Benefits
Expansion Act of 2001. This requirement will expire on October
1, 2010.
Public Law 105-368, the Veterans Programs Enhancement Act
of 1998, required the National Academy of Sciences to examine
the scientific and medical literature on the potential health
effects of chemical and biological agents related to the 1991
Gulf War. The requirement for this examination ends this year.
The Committee believes that these reports are valuable to
its understanding of the associations between illness and
exposure, and health outcomes, of Persian Gulf War veterans as
a result of the Persian Gulf War.
Committee Bill. Section 602(a) would extend until October
1, 2015, the mandate for the National Academy of Sciences to
review and evaluate scientific evidence regarding associations
between illnesses and exposure. Section 602(b) would extend
until October 1, 2018, the requirement for the National Academy
of Sciences to report on the health effects of exposure.
Sec. 603. Extension of Authority for Regional Office in Republic of the
Philippines.
Section 603 of the Committee bill would extend until
December31, 2011, VA's authority to operate a Regional Office
in the Republic of the Philippines.
Background. Section 315(b) of title 38 authorizes VA to
maintain a regional office in the Republic of the Philippines
until December 31, 2009. Congress has periodically extended
this authority, most recently in Public Law 108-183, the
Veterans Benefits Act of 2003.
Were VA to close the Manila regional office, veterans'
assistance activities would still be needed in the Philippines.
A Federal Benefits Unit would have to be attached to the
Department of State, and under such an arrangement, VA's
control of costs and quality of service would be limited.
Because a Federal Benefits Unit would assume responsibility
only for disseminating information and assistance, but not
processing benefits, there could be no assurance that the
extensive fraud-prevention activities currently performed by
the Manila regional office would continue. VA has determined
that it would be more costly, and less effective, to administer
veterans' assistance activities in the Philippines through a
Federal Benefits Unit attached to the Department of State than
to maintain a VA regional office.
Committee Bill. Section 603 would authorize VA to maintain
a regional office in the Republic of the Philippines until
December 31, 2011.
Sec. 604. Aggregate amount of educational assistance available to
individuals who receive both survivors' and dependents'
educational assistance and other veterans and related
educational assistance.
Section 604 of the Committee bill, which is derived from
S.847, would amend section 3695 of title 38 to modify the
maximum
number of months of educational assistance available to certain
individuals.
Background. Under chapter 35 of title 38, certain survivors
and dependents of individuals who die or are disabled while on
active duty are eligible for educational assistance benefits.
Section 3511(a)(1) provides that each eligible person is
entitled to the equivalent of 45 months of full-time benefits.
Under chapter 33 of title 38, the new program of
educational assistance for individuals who served on active
duty after September 11, 2001, the Post-9/11 Veterans
Educational Assistance Act of 2008, establishes a program of
educational assistance in which individuals may earn up to a
maximum of 36 months of full-time benefits.
Section 3695 of title 38 further provides that an
individual who is eligible for assistance under two or more
programs may not receive in excess of the equivalent of 48
months of full-time benefits. This means that an eligible
dependent who is entitled to receive benefits under the chapter
35 program and who uses all 45 months of those benefits to
obtain a college education, and who then subsequently decides
to enter the military, would only be able to earn the
equivalent of three months of benefits under the new Post-
9/11 Veterans Educational Assistance Act of 2008.
Committee Bill. Section 604 of the Committee bill would
amend section 3695 of title 38 to provide that an individual
entitled to benefits under chapter 35 will not be subject to
the 48-month cap. However, the maximum aggregate months of
benefits an individual may receive under chapter 33 (or any
other education program administered by VA) and chapter 35
would be capped at 81. In part, this would allow individuals
who use their dependents' educational assistance benefits to
also establish in their own right entitlement to the full range
of benefits under the new Post-9/11 Veterans Educational
Assistance Act of 2008.
Committee Bill Cost Estimate
In compliance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate, the Committee, based on
information supplied by the CBO, estimates that enactment of
the Committee bill would, relative to current law, increase
discretionary spending by $150 million in 2010 and by $772
million over the 2010-2014 period, assuming appropriation of
the necessary amounts. The Committee bill would decrease net
direct spending by $2 million in 2010, and by $28 million over
the 2010-2019 period. S.728, as amended, would impose
intergovernmental and private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) because it would require
governmental and private-sector employers to comply with new
federal protections under the Uniformed Services Employment and
Reemployment Rights Act (USERRA). CBO estimates that the costs
of the mandates would fall below the annual thresholds
established in UMRA.
The cost estimate provided by CBO, setting forth a detailed
breakdown of costs, follows:
Congressional Budget Office,
Washington, DC, August 25, 2009.
Hon. Daniel K. Akaka,
Chairman,
Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S.728, the Veterans'
Benefits Enhancement Act of 2009.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dwayne M.
Wright.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure.
S.728--Veterans' Benefits Enhancement Act of 2009
Summary: S.728 would affect several veterans programs,
including disability compensation, pension, burial, life
insurance, and readjustment benefits. CBO estimates that
implementing this legislation would cost $772 million over the
2010-2014 period, assuming appropriation of the necessary
amounts. The bill also contains provisions that would both
increase and decrease direct spending for veterans benefits.
CBO estimates that enacting S.728 would decrease net direct
spending by $28 million over the 2010-2019 period. Enacting the
bill would have no effect on revenues.
S.728 would impose intergovernmental and private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
because it would require governmental and private-sector
employers to comply with new federal protections under the
Uniformed Services Employment and Reemployment Rights Act
(USERRA). CBO estimates that the costs of the mandates would
fall below the annual thresholds established in UMRA ($69
million for intergovernmental mandates and $139 million for
private-sector mandates in 2009, adjusted annually for
inflation).
Pursuant to section 311 of S. Con. Res. 70, CBO estimates
that S.728 would not cause a net increase in deficits in excess
of $5 billion in any of the four 10-year periods beginning
after 2019.
Estimated cost to the Federal government: The estimated
budgetary impact of S.728 is summarized in Table 1. The costs
of this legislation fall within budget function 700 (veterans
benefits and services).
Basis of estimate: For the purposes of this estimate, CBO
assumes that S.728 will be enacted near the start of fiscal
year 2010.
Table 1.--Estimated Budgetary Impact of S.728
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------------------
2010 2011 2012 2013 2014 2010-2014
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level................. 150 155 153 155 159 772
Estimated Outlays............................. 150 155 153 155 159 772
CHANGES IN DIRECT SPENDING
Estimated Budget Authority.................... -2 47 -100 -141 -146 -340
Estimated Outlays............................. -2 47 -100 -141 -146 -340
----------------------------------------------------------------------------------------------------------------
Notes: In addition to the direct spending effects shown here, enacting S.728 would have additional effects on
direct spending after 2014 (see Table 3). CBO estimates that net direct spending over the 2010-2019 period
would decrease by $28 million.
Details may not sum to totals because of rounding.
Spending Subject to Appropriation
S.728 contains provisions that would increase discretionary
spending for several benefits provided by the Department of
Veterans Affairs (VA). CBO estimates that implementing those
provisions would cost $772 million over the 2010-2014 period,
assuming appropriation of the necessary amounts (see Table 2).
Supplemental Funeral and Burial Expenses. Under current
law, VA pays funeral expenses of up to $300 for certain
deceased veterans. VA also pays up to $2,000 for burial
expenses to the survivors of veterans who die as a result of a
service-connected disability. Section 501 authorize
supplemental payments--subject to availability of funds
provided for that purpose--that would increase the maximum
payments for funeral and burial expenses to $1,200 and $4,100,
respectively, and would increase these amounts annually by a
cost-of-living adjustment.
Based on information from VA regarding veteran mortality,
CBO expects about 86,000 grants to be made for funeral expenses
in 2010 increasing to about 92,200 by 2014. For burial
expenses, CBO expects about 16,000 grants to be made in 2010
increasing to about 18,000 in 2014. We estimate that
implementing this section would cost $582 million over the
2010-2014 period, assuming appropriation of the necessary
amounts.
Table 2.--Components of Discretionary Spending Under S.728
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------------------
2010 2011 2012 2013 2014 2010-2014
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Supplemental Funeral and Burial Expenses
Estimated Authorization Level............. 111 114 116 119 122 582
Estimated Outlays......................... 111 114 116 119 122 582
Supplemental Plot Allowances
Estimated Authorization Level............. 31 32 33 34 35 165
Estimated Outlays......................... 31 32 33 34 35 165
Regional Office in the Philippines
Estimated Authorization Level............. 5 6 2 0 0 13
Estimated Outlays......................... 5 6 2 0 0 13
Review of Illnesses Related to Service in the
Persian Gulf War
Estimated Authorization Level............. 2 2 2 2 2 10
Estimated Outlays......................... 2 2 2 2 2 10
Reports
Estimated Authorization Level............. 1 1 * 0 0 2
Estimated Outlays......................... 1 1 * 0 0 2
----------------------------------------------------------------------------------------------------------------
Total Changes
Estimated Authorization Level......... 150 155 153 155 159 772
Estimated Outlays..................... 150 155 153 155 159 772
----------------------------------------------------------------------------------------------------------------
Note: * = less than $500,000.
Supplemental Plot Allowance. Under current law, VA pays a
$300 plot allowance for veterans who died in a VA facility or
who are to be buried in a state or private cemetery. Section
502 would increase the plot allowance to $745 and adjust the
payment annually by a cost-of-living index. Based on
information from VA on veterans mortality rates, CBO expects
about 71,000 grants to be made for plot allowances in 2010,
increasing to about 76,000 by 2014. We estimate that
implementing section 502 would increase the cost of this
program by $165 million over the 2010-2014 period, assuming
appropriation of the necessary amounts.
Regional Office in the Philippines. Section 603 would
extend--through December 31, 2011--VA's authority to operate a
regional office in the Republic of the Philippines. Under
current law, that authority expires on December 31, 2009.
Currently, the cost to operate that office is about $6 million
per year. After accounting for inflation, CBO estimates that
enacting section 603 would cost $13 million over the 2010-2012
period, assuming appropriation of the necessary amounts.
Review of Illnesses Related to Service in the Persian Gulf
War. Section 602 would extend the deadlines for completing two
studies by the National Academy of Sciences (NAS) regarding
illness associated with service in the Persian Gulf War. The
NAS review of toxic drugs and illnesses associated with the
Persian Gulf War would be extended by five years, from October
1, 2010, to October 1, 2015. The NAS review regarding health
problems associated with service in the Persian Gulf would be
extended from September 30, 2009, to October 1, 2018. Based on
information from NAS, CBO estimates that extending the
deadlines for completing those studies would cost $10 million
over the 2010-2014 period, assuming appropriation of the
necessary amounts.
Reports. S.728 would require both VA and the Government
Accountability Office (GAO) to prepare and submit reports to
the Congress. Section 601 would require VA to enter into a
contract with the Institutes of Medicine to conduct a review of
the best treatments for Gulf War illness and to submit a report
by December 31, 2011. Section 405 would require GAO to prepare
a report by June 30, 2010, on the effectiveness of programs
intended to educate employers on their obligations under the
Uniformed Services Employment and Reemployment Rights Act. CBO
estimates that completing the required reports would cost $2
million over the 2010-2012 period, assuming availability of the
necessary amounts.
Direct Spending
S.728 contains a number of provisions that would both
increase and decrease direct spending. CBO estimates that
enacting those provisions would decrease net direct spending by
$340 million over the 2010-2014 period and $28 million over the
2010-2019 period (see Table 3).
Pensions for Veterans in Medicaid Nursing Homes. Section
204 would extend from September 30, 2011, to September 30,
2014, the expiration date of a provision of current law that
sets a $90 per month limit on pensions paid to any veteran
without a spouse or child, or to any survivor of a veteran, who
is receiving Medicaid coverage in a Medicaid-approved nursing
home. The law also allows the beneficiary to retain the pension
instead of having to use it to defray nursing home costs. Using
data provided by VA, CBO estimates that in 2010 about 15,000
veterans and 19,000 survivors would be affected by this
provision and that the average savings to VA would total about
$18,600 per veteran and $11,600 per survivor in that year.
Extrapolating from this estimate to account for mortality and
new nursing home patients, CBO estimates the provision would
save VA $1.5 billion over the 2012-2014 period. Higher Medicaid
payments to nursing homes would offset some of those savings.
We estimate that those costs would total about $920 million
over the 2012-2014 period, resulting in a net savings of $545
million over the period.
Enhanced Automobile Assistance. Seriously disabled veterans
who have lost the use of one or both hands or feet or who have
suffered a severe vision impairment as the result of a service-
connected injury or disease are eligible to receive a grant of
$11,000 to purchase an automobile. Those veterans are also
entitled to receive the adaptive equipment necessary for them
to safely operate their vehicles, and to have that equipment
repaired or replaced as necessary.
Section 303 would increase the amount of the automobile
grant from $11,000 to $22,500 in 2011. As the average retail
cost of new automobiles increases in future years, the benefit
would be adjusted to cover 80 percent of that cost. CBO
estimates that doubling the benefit would cause the number of
veterans receiving automobile grants to increase by 10 percent
to approximately 1,600 veterans annually. CBO estimates that
section 303 would increase the cost of automobile grants by
$170 million over the 2010-2019 period.
The additional grantees also would be provided with the
adaptive equipment necessary for them to safely operate the
vehicles. Based on the level of current grant payments, CBO
estimates that section 303 would increase the cost of adaptive
equipment grants by
$19 million over the 2010-2019 period. In total, CBO estimates
that section 303 would increase direct spending for automobile
and adaptive equipment grants by $189 million over the 2010-
2019
period.
Remove Cap on Independent Living. Section 301 would remove
the cap on the number of veterans allowed to participate in the
Independent Living program. Under current law, participation is
capped at 2,600 veterans each year. The Independent Living
program provides services to maximize independence in daily
living for veterans who are too severely disabled to pursue
employment. Based on information from VA, CBO estimates that
this section would raise participation in the program by about
200 veterans in 2010 and by over 2,000 veterans annually by
2019 at a cost of approximately $13,000 per participating
veteran in 2010. Accounting for inflation, CBO estimates that
enacting section 301 would increase direct spending by $181
million over the 2010-2019 period.
Table 3.--Components of Direct Spending Under S.728
--------------------------------------------------------------------------------------------------------------------------------------------------------
Outlays in millions of dollars, by fiscal year--
-------------------------------------------------------------------------------------------
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2010-2014 2010-2019
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDINGa
Pensions for Veterans in Medicaid Nursing Homes............. 0 0 -153 -196 -196 0 0 0 0 0 -545 -545
Enhanced Automobile Assistance.............................. 0 17 19 21 21 21 22 22 23 23 78 189
Remove Cap on Independent Living............................ 2 4 8 12 16 21 24 28 31 35 42 181
Enhanced VMLI............................................... 0 3 5 5 6 6 6 7 7 7 19 52
Expansion of Retroactive Benefits for T-SGLI................ 0 19 14 10 2 2 0 0 0 0 45 47
Special Monthly Pension..................................... -4 -4 -4 -4 -4 -4 -4 -4 -4 -4 -20 -42
Enhanced Disability Compensation for Veterans with TBI...... 0 5 5 5 4 4 4 4 4 4 19 39
Exemption of Survivors and Dependents from 48-month 0 2 2 2 2 2 2 3 3 3 8 21
Limitation on Educational Benefits.........................
Automobiles and Adaptive Equipment for Individuals with 0 * 3 2 1 1 * * 1 1 6 9
Severe Burns...............................................
Supplemental Service-Disabled Insurance..................... * * * 1 1 1 1 1 1 1 2 7
Payments to Survivors of Former POWs........................ * 1 1 1 1 1 1 1 * * 4 6
Commencement of Period of Payment for Veterans with * * * * * * * * * * 1 3
Catastrophic Disabilities..................................
Cost-of-Living Adjustment for Surviving Spouses............. 0 0 0 * * * * * * * * 3
Consideration of Dominant Hand as Qualifying Loss for T-SGLI * * * * * * * * * * * 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Changes........................................... -2 47 -100 -141 -146 55 56 62 66 70 -340 -28
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: VMLI = Veterans Mortgage Life Insurance; T-SGLI = Traumatic Servicemembers Group Life Insurance; TBI = Traumatic Brain Injury; POWs = Prisoners of
Wars; * = less than $500,000.
aDetails may not sum to totals because of rounding.
Enhanced Veterans' Mortgage Life Insurance (VMLI). VMLI is
insurance coverage intended to pay off or make payments on a
veteran's home mortgage in the event of the veteran's death.
VMLI is restricted to those veterans who receive grants for
specially adapted housing and it ceases once a veteran reaches
age 70. Under current law, the maximum amount of VMLI is
$90,000. Section 105 would increase that amount to $15,000 as
of October 2, 2010, and to $200,000 on January 1, 2012.
Based on VA's actuarial projections of current and future
policy holders, premium payments, and death claims, CBO expects
about 2,200 policyholders to take advantage of the increased
coverage in 2011, decreasing to about 1,900 by 2019. Based on
the current cost of the program, CBO estimates that enacting
section 105 would increase direct spending by $52 million over
the 2010-2019 period.
Expansion of Retroactive Benefits for Traumatic
Servicemembers Group Life Insurance (T-SGLI). VA began offering
T-SGLI in December 2005. This program provides a payment to
eligible servicemembers who suffer a traumatic injury
including, but not limited to, the loss of a hand or foot. When
the program was established, it provided retroactive coverage
only to veterans who suffered such injuries as a result of
their service in Operation Enduring Freedom or Operation Iraqi
Freedom (OEF/OIF). Section 103 would extend that retroactive
benefit to all veterans who suffered a qualifying traumatic
injury during the period of October 7, 2001, to November 30,
2005.
CBO assumes that retroactive claims for non-OEF/OIF
traumatic injuries will be similar to non-OEF/OIF claims made
since the beginning of the program. Between December 2005 and
September 2006 (the most recent period for which data can be
obtained), 390 veterans made nonretroactive T-SGLI claims for
traumatic injuries. Of that number, about 22 percent were for
non-war-zone injuries. Based on claims made in the first year
of the program, CBO expects that about 2,500 war-related claims
will be made for the period of October 7, 2001, to November 30,
2005. Under section 103, we estimate that an additional 700
non-war related claims would be made. According to VA, the
average size of a non-war-zone claim for T-SGLI was $68,700.
Therefore, CBO estimates that enacting section 103 would
increase direct spending by $47 million over the 2010-2019
period.
Special Monthly Pension (SMP). VA provides basic pension
benefits for war veterans with low incomes who are totally
disabled and whose disabilities are unrelated to their service.
A larger benefit is available to such veterans who have
multiple disabilities. The SMP is payable at one level for
veterans considered ``housebound'' and at a higher level, for
those unable to care for themselves (known as the ``aid and
attendance'' level).
As of 2001, war veterans over age 65 with low incomes are
eligible to receive the basic pension benefit without a
determination of total disability. Until a recent court
holding, however, they had to meet the same requirements as
younger veterans to receive SMPs.\1\ To qualify to receive the
SMP at the housebound level, veterans over age 65 were required
to have two disabilities; one disability rated at 100 percent
and one rated at 60 percent or greater. The Court of Appeals
for Veterans Claims (CAVC) found that otherwise eligible
veterans over age 65 did not need the initial disability
rating of 100 percent, significantly expanding the number of
veterans who are eligible to receive the housebound SMP.
Pursuant to that holding, VA has recently begun to pay that
higher amount to veterans over 65 with a single disability
rated at 60 percent or greater.
---------------------------------------------------------------------------
\1\Robert A. Hartness v. R. James Nicholson, VA 20 Vet. App. 216
(2006).
---------------------------------------------------------------------------
Section 202 would change the eligibility requirements for
SMPs to those in force before the court ruling, reducing the
number of veterans eligible for SMPs and thereby reducing the
cost of the pension program. Based on data from VA, CBO
estimates that, of the veterans over age 65 (about 15,700) who
are receiving the basic pension without a requirement of
disability, about 1,000 are receiving an SMP due to the CAVC
decision.
In addition, CBO estimates that under current law about 300
new pension recipients will qualify for the SMPs because of the
court ruling each year. Thus, CBO estimates that a total of
1,300 additional veterans will receive SMPs in 2010, and, using
normal mortality rates for that population and adding in each
year's cohort of new pensioners, that by 2019, about 1,400
pensioners will receive SMPs because of the court ruling.
The maximum annual pension rate for a veteran with no
dependents in 2009 is $11,830. The similar rate for housebound
SMPs is $14,457. After adjusting for cost-of-living increases,
by 2019 the difference between the maximum annual pension rate
and the housebound SMP rate would be about $3,000. Using those
increases in benefit levels and the populations specified
above, CBO estimates that under current law the effect of this
court ruling will be to increase direct spending on veterans
pensions by $42 million over the 2010-2019 period. Enacting
section 202 would undo that increase, resulting in savings of
that amount.
Enhanced Disability Compensation for Veterans with
Traumatic Brain Injuries (TBI). Section 205 would increase the
amount of aid and attendance (A&A) that certain veterans are
eligible to receive. Eligible veterans would be those who
suffer from the residual effects of service-connected TBI and
who, without the increased A&A payment, would require
hospitalization, nursing home care, or some other form of
institutional care. Section 205 would take effect on August 31,
2010.
Based on data from VA, CBO estimates that in 2010, 150
veterans would qualify for an increased monthly payment under
section 205. Given the age of the population and the severity
of their disabilities, CBO expects that population to decrease
to about 40 in 2019. Similarly, CBO assumes that an additional
10 veterans per year with residual effects of TBI will become
eligible for a higher rate of A&A under section 205. Assuming a
similar mortality rate, CBO expects that by 2019 about 60
veterans would be eligible for this enhanced benefit.
Under section 205, in 2010, eligible veterans would receive
a benefit increase of $2,923 per month ($35,076 annually).
After adjusting for estimated cost-of-living increases, that
amount would be $3,241 ($38,888 annually) in 2019. Based on our
estimates of the affected population and the amount of the
benefit increase, CBO expects that enacting section 205 would
increase direct spending by $39 million over the 2010-2019
period.
Exemption of Survivors and Dependents from 48-month
Limitation on Educational Benefits. Spouses and children of
certain deceased or totally disabled veterans are eligible for
up to 45 months of veterans' educational benefits. If the
survivors and dependents are eligible for additional
educational benefits due to their own military service or
through the transfer of benefits, they are limited to a total
of 48 months of benefits. Beginning October 1, 2010, section
604 would allow such survivors and dependents to use a maximum
of 81 months of benefits. Based on information from the
Department of Defense (DOD), CBO estimates that approximately
100 survivors each year would use the additional benefits. We
estimate that section 604 would increase direct spending by $21
million over the 2010-2019 period.
Automobiles and Adaptive Equipment for Individuals with
Severe Burns. Beginning in October 2010 section 302 would
expand eligibility for automobile and adaptive equipment grants
for disabled veterans to include totally disabled veterans with
severe burn injuries. Based on information from the services,
CBO estimates that nearly 150 current veterans would qualify
for automobile and adaptive equipment grants immediately under
this expansion, and that, on average, an additional 15 veterans
would become eligible annually.
Through 2019, CBO estimates that a total of 270 additional
veterans would receive grants under this section. Those
veterans would be eligible for the automobile grant at the
$22,500 level, as increased under section 303. They also would
be eligible to receive the necessary adaptive equipment to
operate their vehicles safely and to have that equipment
replaced at intervals. Between 2010 and 2019, CBO estimates
that section 302 would increase the cost for automobile grants
by $6 million and the cost for adaptive equipment grants by $3
million. In total, CBO estimates that section 302 would
increase direct spending by $9 million over the 2010-2019
period.
Supplemental Service-Disabled Insurance (S-DVI). Section
101 would increase the amount of supplemental S-DVI coverage
available from $20,000 to $30,000.
S-DVI is a life insurance program for veterans with
service-related disabilities. They must apply for the program
within two years of notification that a service connection has
been established for a disability. Supplemental S-DVI is
available to current S-DVI policyholders who qualify for a
waiver of premiums because of a total disability that began
after the insured's application for insurance, while the
insured was paying premiums for S-DVI, and before the insured's
65th birthday.
Based on VA's actuarial projections of current and future
policyholders, premium payments, and death claims, CBO expects
about 2,000 policyholders would take advantage of the increased
coverage in 2010, increasing to about 15,100 by 2019. Using
mortality rates appropriate to this population, CBO estimates
that enacting section 101 would increase direct spending by $7
million over the 2010-2019 period.
Payments to Survivors of Former Prisoners-of-War (POWs).
Under current law, survivors of veterans who die as a result of
a service-connected disability are eligible to receive
dependency and indemnity compensation (DIC). Survivors of
certain veterans who die from a nonservice-connected condition
also can qualify to receive DIC, including former POWs who were
rated totally disabled for at least one year prior to their
death and who died after September 30, 1999.
Section 208 would extend eligibility for DIC to survivors
of such POWs who died before September 30, 1999.
Based on data provided by VA, CBO estimates that about 285
survivors would be newly eligible for DIC under section 208.
Many of the affected veterans died many years ago and we expect
that many of their survivors will have lost touch with
veterans' organizations that could inform them about the new
benefit. We also expect that some survivors will have
remarried, making them ineligible for DIC. Given these factors,
CBO assumes that only about one-third, (about 95) of the
eligible survivors would apply for DIC under the bill. CBO also
assumes that these new DIC cases would phase in over a five-
year period as eligible survivors learn about their eligibility
and apply for benefits from VA.
The average DIC payment in fiscal year 2008 was $13,676.
Such payments are adjusted annually for increases in the cost
of living. CBO estimates that enacting section 208 would
increase direct spending by $6 million over the 2010-2019
period.
Commencement of Period of Payment for Veterans with
Catastrophic Disabilities. Section 206 would enable veterans
who are retired or separated from active-military service due
to catastrophic disabilities (i.e., they are unable to carry
out the activities of daily living or require supervision to
avoid physical harm to self or others) to begin receiving
disability compensation payments from VA as of their date of
discharge. Under current law, such payments begin on the first
day of the month immediately following the month for which a
claim was filed.
Based on information from the DOD on retirees, CBO expects
about 200 veterans each year would be eligible for one
additional payment for half a month. In 2008, the average
monthly payment for a veteran rated at 100 percent disabled was
about $2,900. These payments are adjusted annually for cost-of-
living increases, so the average benefit payment for such a
veteran in 2010 will be about $3,390. Assuming that on average,
each of the 200 veterans would receive half an additional
payment, CBO assumes direct spending would increase by $3
million over the 2010-2019 period.
Cost-of-Living Adjustment (COLA) for Surviving Spouses.
Surviving spouses who are eligible for DIC may receive an extra
$250 a month for up to two years if they have one or more
children under the age of 18. Section 201 would increase the
$250 benefit by the same annual COLA applied to the regular DIC
benefit for about 2,000 spouses per year. CBO estimates that
this provision would not increase the monthly benefit for 2010
because we do not estimate that there will be a COLA for 2010.
By 2019, the monthly benefit payment is projected to be $277,
relative to current law and CBO's baseline. CBO estimates that
enacting section 201 would increase direct spending for
veterans compensation by $3 million over the 2010-2019 period.
Consideration of Dominant Hand as Qualifying Loss for T-
SGLI. Section 104 would allow VA to consider the loss of a
dominant hand in determinations of severity of traumatic loss
when making payments to servicemembers under the T-SGLI program
and would make the payments retroactive to the beginning of
that program. From the start of the T-SGLI program on December
1, 2005, through February 2008, there were about 90 claims for
the loss of one hand, representing claims made retroactive to
the start of Operation Iraqi Freedom in 2003. CBO assumes that
half of those cases were for the dominant hand--45 cases or 9
per year--and would have qualified under section 104. Assuming
a similar rate going forward of nine claims per year, with a
payment of $25,000 per claim, CBO estimates that enacting
section 104 would cost $2 million over the 2010-2019 period.
Intergovernmental and private-sector impact: The USERRA
requires governmental and private-sector employers to grant
employment and reemployment rights to members of the uniformed
services. S.728 would expand benefits under the bill to include
wage and salary protections; such an expansion constitutes a
mandate as defined in UMRA. Based on discussions with agency
officials, CBO estimates that most employers currently comply
the new standards and thus the cost of complying with the
mandates would fall below the annual thresholds established in
UMRA for both intergovernmental and private-sector mandates
($69 million and $139 million in 2009, respectively, adjusted
annually for inflation).
Estimate prepared by: Federal Costs: Compensation, Pension,
and Burial Insurance--Dwayne M. Wright; Readjustment Benefits--
Camille Woodland; Impact on State, Local, and Tribal
Governments: Lisa Ramirez Branum; Impact on the Private Sector:
Elizabeth Bass.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee on Veterans'
Affairs has made an evaluation of the regulatory impact that
would be incurred in carrying out the Committee bill. The
Committee finds that the Committee bill would not entail any
regulation of individuals or businesses or result in any impact
on the personal privacy of any individuals and that the
paperwork resulting from enactment would be minimal.
Tabulation of Votes Cast in Committee
In compliance with paragraph 7 of rule XXVI of the Standing
Rules of the Senate, the following is a tabulation of votes
cast in person or by proxy by members of the Committee on
Veterans' Affairs at its May 21, 2009, meeting. The Committee,
by voice vote, ordered S.728 reported favorably to the Senate,
subject to amendment.
----------------------------------------------------------------------------------------------------------------
Yeas Senator Nays
----------------------------------------------------------------------------------------------------------------
X (by proxy) Mr. Rockefeller
X Mrs. Murray
X (by proxy) Mr. Sanders
X Mr. Brown
X Mr. Webb
X Mr. Tester
X Mr. Begich
X Mr. Burris
X (by proxy) Mr. Specter
X Mr. Burr
X Mr. Isakson
X (by proxy) Mr. Wicker
X Mr. Johanns
Mr. Graham
X Mr. Akaka, Chairman
----------------------------------------------------------------------------------------------------------------
14 TALLY 0
----------------------------------------------------------------------------------------------------------------
Agency Report
On April 29, 2009, Bradley G. Mayes, Director, Compensation
and Pension Service, Veterans Benefits Administration,
Department of Veterans Affairs, appeared before the Committee
at a hearing on pending benefits legislation and submitted
testimony on, S.263, S.347, S.514, S.728, S.820, S.842, S.919,
S.1015, and S.1016, among other bills. Excerpts from this
statement are reprinted below:
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: I am pleased to
be here today to provide the Department of Veterans Affairs'
(VA) views on pending benefits legislation. I will not be able
to address a few of the bills on today's agenda because VA
received them in insufficient time to coordinate the
Administration's position and develop cost estimates, but we
will provide that information in writing for the record. Those
bills are S.315, section 203 of S.728, S.847, the draft
``Clarification of Characteristics of Combat Service Act of
2009,'' and a draft bill to modify the commencement of the
period of payment of original awards of compensation for
veterans who are retired or separated from the uniformed
services for disability.
S.263 ``SERVICEMEMBERS ACCESS TO JUSTICE ACT OF 2009''
S.263, the ``Servicemembers Access to Justice Act of
2009,'' would make several revisions to the Uniformed Services
Employment and Reemployment Rights Act of 1994, as amended.
Because that Act is administered by the Department of Labor, VA
defers to the Department of Labor concerning the
Administration's position on S.263.
Because this bill required extensive coordination among
several VA components, we did not have sufficient time before
this hearing to finalize a position. However, we will provide
our position to the Committee in writing for the record.
S.347
The Servicemembers' Group Life Insurance program includes
protection for covered servicemembers from certain qualifying
losses directly resulting from traumatic injury in service
(known as Traumatic Servicemembers' Group Life Insurance or
``TSGLI''). Current law requires that the qualifying losses
prescribed by VA by regulation include ``[l]oss of a hand * * *
at or above the wrist.'' Section 1(a) of S.347 would authorize
VA, in specifying the amount of the payment to be made under
the TSGLI program for each qualifying loss, to distinguish
between the severity of a qualifying loss of a dominant hand
and a qualifying loss of a non-dominant hand. Section 1(b)
would require VA to issue regulations providing mechanisms for
payments for such losses incurred before the date of enactment
of this bill.
VA does not support enactment of this bill because it is
unnecessary. VA already has the authority to adjust the
schedule of payments under the TSGLI program as needed.
Furthermore, VA has previously considered, as part of its
``Year-One Review'' of the TSGLI program, whether the payment
for a qualifying loss of a dominant hand should be higher than
the payment for a qualifying loss of a non-dominant hand and
concluded that it should not, for the reasons discussed below.
The TSGLI program is modeled after the accidental death and
dismemberment programs in the commercial sector. In the
commercial sector, there is no precedent for paying a higher
benefit for a ``dominant'' hand. Furthermore, medical
professionals we consulted on the issue of dominance of one
hand or arm in the course of the Year-One Review commented that
some individuals use the ``non-dominant'' arm as the primary
arm for a few activities, i.e., there is some degree of
variability with respect to which arm is dominant for different
activities. They also pointed out that some individuals are
ambidextrous. These factors would complicate the adjudication
of such claims.
The purpose of the TSGLI program is to provide short-term
financial assistance to servicemembers and their families
because the families often suffer financial hardship to be with
the injured members during their treatment and recovery
periods. The amount of a payment depends on the nature of the
injury and the expected time needed for recovery. There is no
evidence to date that loss of a dominant hand requires a longer
recovery and rehabilitation period than loss of a non-dominant
hand does.
We are also concerned about the impact of this proposal on
our ability to maintain a peacetime premium of $1.00 per month,
as Congress intended. Although the relatively low incidence of
amputation of the dominant hand alone would not likely affect
the premium, it would open the door to requests for disparate
treatment of other injuries, such as loss of a dominant foot or
leg, the dominant eye, burns on the dominant side of the body,
etc. The establishment of higher payments for other dominant-
side losses could result in the need to charge a higher premium
for coverage.
The law provides that covered members are covered against
inability to carry out the activities of daily living resulting
from traumatic brain injury and defines the term ``inability to
carry out the activities of daily living'' as inability to
independently perform 2 or more of 6 specified functions, such
as bathing, dressing, and eating. We are also concerned that
enactment of S.347 could result in requests for disparate
treatment if it were alleged that traumatic brain injuries had
a greater impact on the dominant side of the body than the non-
dominant side.
Finally, VA's compensation program, not TSGLI, is designed
to compensate for the long-term effects of injuries incurred in
service. The compensation program does pay a greater benefit
for loss of a dominant hand.
VA estimates that enactment of S.347 would result in costs
of $1.1 million over five years and $2.3 million over ten
years.
* * * * * * *
S.514 ``VETERANS REHABILITATION AND TRAINING IMPROVEMENTS
ACT OF 2009''
S.514, the ``Veterans Rehabilitation and Training
Improvements Act of 2009,'' would provide for an increase in
the amount of subsistence allowance payable by VA to veterans
participating in vocational rehabilitation programs under
chapter 31 of title 38, United States Code, allow reimbursement
of certain costs to those veterans, and remove the limitation
on the number of veterans who may be provided programs of
independent living.
Specifically, section 2 of S.514 would increase the rates
of subsistence allowance provided veterans under section
3108(b) of title 38, United States Code. The amount of monthly
subsistence allowance payable would be equal to the national
average of the amount of basic allowance for housing payable
under section 403 of title 37, United States Code, for a member
of the uniformed services in pay grade E-5. The revision would
increase the amount of subsistence allowance provided to
veterans participating in training and employment services
under chapter 31 to be roughly equivalent to the housing
allowance veterans will receive under the chapter 33 Post-9/11
GI Bill.
Section 3 of the bill would authorize reimbursement of
costs incurred by a veteran as a direct consequence of
participation in a rehabilitation program under chapter 31.
Such cost would include child-care expenses and clothing for
employment interviews, as well as other costs VA would
prescribe in regulations. Reimbursement of these costs could
serve as an incentive for veterans to complete their
rehabilitation programs.
Section 4 of the bill would remove section 3120(e) from
chapter 31, thereby removing the limitation on the number of
veterans who may enter independent living programs each fiscal
year.
We support, in principle, efforts to facilitate successful
completion of vocational rehabilitation programs under chapter
31, and we recognize that increasing the subsistence allowance
and reimbursements provided to veterans participating in
training and employment services will encourage more veterans
to continue their rehabilitation programs. Increased rates of
subsistence allowance would allow veterans to pursue
rehabilitation on a full-time basis, leading to entry into
employment in a shorter period of time. However, we are unable
to support sections 2 and 3 of S.514 at this time.
Recent changes to VA education benefits, including the new
Post-9/11 GI Bill, may affect chapter 31 participation and
completion rates. In addition, as recommended by the Dole-
Shalala Commission on Wounded Warriors, VA is currently
completing a review of its compensation program and proposed
transition payments, which may have implications for the
vocational rehabilitation program. Complete review of
comprehensive benefits, including possible transition benefits
and current subsistence allowance, is necessary before VA can
fully evaluate the subsistence allowance and reimbursement
increases proposed in S.514. The Department plans to evaluate
its total benefit package and recommend necessary improvements.
For these reasons, and due to the bill's large increase in
direct costs without an identified offset, VA cannot support
this bill. VA estimates that the costs for sections 2 and 3 of
S.514 if enacted would be $361.4 million during the first year,
$2.2 billion over five years, and $4.4 billion over ten years.
Subject to the availability of offsets for additional costs
associated with the expansion, VA does not object to the
removal of the limitation on the number of veterans who may
enter programs of independent living so that all veterans who
need independent living services now and in the future may
receive them. In 2007, in connection with a similar provision,
VA estimated that costs would be $2.9 million in the first year
and $104 million over ten years. We will provide for the record
an updated cost estimate for section 4 of S.514.
* * * * * * *
S.728 ``VETERANS' INSURANCE AND BENEFITS ENHANCEMENT
ACT OF 2009''
TITLE I--INSURANCE MATTERS
Section 101 of S.728, the ``Veterans' Insurance and
Benefits Enhancement Act of 2009,'' would create a new life
insurance program that would provide up to $50,000 of coverage
to veterans who are less than 65 years old and have a service-
connected disability. A veteran would be able to elect an
amount less than $50,000 that is evenly divisible by $10,000,
but the amount of an insured's coverage would decrease by 80
percent at age 70. To obtain coverage, an eligible veteran
would have to apply for the insurance not later than 2 years
after being notified by VA that he or she has a service-
connected disability or 10 years after separation from the
Armed Forces, whichever date is earlier. Premiums would be
based on the 2001 Commissioners Standard Ordinary Basic Table
of Mortality and interest at the rate of 4\1/2\ percent per
year, and they would not increase while the insurance is in
force. Premiums would be waived for certain veterans who have a
totally disabling service-connected disability or who are 70
years of age or older.
The insurance would be granted on a nonparticipating basis.
All premiums would be credited to a revolving fund in the
United States Treasury, from which any payments would be
directly made. Appropriations to the fund would be authorized.
Administrative costs for the program would be paid from
premiums. Payments for claims in excess of the amounts credited
to the fund would be paid from appropriations. There would be a
one-year open season beginning on April 1, 2010, during which a
veteran currently insured under Service-Disabled Veterans'
Insurance (SDVI) who is under age 65 could exchange his or her
SDVI for the new insurance. However, an insured's combined
amount of coverage under SDVI, Supplemental SDVI, and the new
program could not exceed $50,000.
Currently, SDVI provides up to $10,000 in coverage, as
either a permanent or term insurance plan, and premiums are
based on an insured's age until the insured reaches age 70,
when the premium rates are capped. SDVI insureds who become
eligible for a waiver of premiums due to total disability can
obtain Supplemental SDVI of up to $20,000, for a total
available amount of SDVI coverage of $30,000. Current SDVI
premium rates per $1,000 of coverage are higher than quotes for
healthy individuals from commercial life insurance companies.
Subject to Congress' enactment of legislation offsetting
the increased costs that would be associated with the enactment
of this section, VA supports section 101 because it would meet
service-disabled veterans' needs by providing more adequate
amounts of life
insurance than currently available under the SDVI program at
more reasonable rates that would be level for the life of the
insured.
However, VA does not support paying for administrative
costs from premiums because the Administration believes that
the cost of entitlements should be separate and distinct from
the cost of administering those entitlements. Furthermore, we
do not believe that supplementing a discretionary appropriation
with mandatory receipts is an appropriate budgeting practice.
VA estimates that enactment of section 101 would result in
costs of $83.0 million over 5 years and $326 million over 10
years.
Section 102 would increase the maximum amount of
Supplemental SDVI from $20,000 to $30,000.
VA supports section 102, provided Congress identifies an
offsetting source of funding. By increasing to $30,000 the
amount of available supplemental SDVI, this provision would
address a major concern of veterans, as reported in the study
``Program Evaluation of Benefits for Survivors of Veterans with
Service-Connected Disabilities.'' It would increase the
financial security of disabled veterans by affording them the
opportunity to purchase additional life insurance coverage
otherwise not available to them.
VA estimates that enactment would result in costs of $2.1
million over 5 years and $7.3 million over 10 years.
Section 103 would remove the geographic requirement for
eligibility for retroactive TSGLI benefits. It would extend
eligibility for retroactive benefits for traumatic injury
protection coverage under TSGLI to all members of the uniformed
services who sustained a qualifying loss from a traumatic
injury between October 7, 2001, and November 30, 2005,
regardless of geographic location.
Section 1032 of Public Law No. 109-13 authorized the
payment of TSGLI to any servicemember insured under
Servicemembers' Group Life Insurance (SGLI) who sustains a
traumatic injury that results in one of certain losses. Under
section 1032(c) of Public Law 109-13, TSGLI also was authorized
for members of the uniformed services who experienced a
traumatic injury between October 7, 2001, and December 1, 2005,
provided the qualifying loss was a direct result of injuries
incurred in Operation Enduring Freedom (OEF) or Operation Iraqi
Freedom (OIF). Section 501 (b)(1) of the Veterans' Housing
Opportunity and Benefits Improvement Act of 2006, Public Law
109-233, narrowed eligibility for retroactive TSGLI to apply
only to servicemembers who suffered a qualifying loss as a
direct result of a traumatic injury incurred in the theater of
operations for OEF or OIF during the period beginning on
October 7, 2001, and ending at the close of November 30, 2005.
Section 103 would eliminate the requirements that a qualifying
loss directly result from a traumatic injury incurred in the
theater of operations for OEF or OIF. The amendment would be
effective on January 1, 2010.
VA defers to the Department of Defense (DOD) on the merits
of this section, because DOD would bear the costs associated
with its enactment. VA estimates that enactment of section 103,
which would provide retroactive eligibility for the period from
October 7, 2001, through November 30, 2005, would result in a
cost of $47.7 million for the entire period.
Veterans' Mortgage Life Insurance (VMLI) is available to
eligible individuals age 69 or younger with severe service-
connected disabilities who receive a specially adapted housing
grant. Currently, the maximum amount of VMLI provided is the
lesser of $90,000 or the amount of the loan outstanding on the
housing unit. Section 104 would increase the $90,000 limitation
to $150,000 and then $200,000 after January 1, 2012.
Subject to Congress' enactment of legislation offsetting
the increased costs that would be associated with the enactment
of this section, VA supports section 104 because the percentage
of total mortgage balances covered by the current amount of
VMLI available has decreased over the past several years. The
maximum VMLI amount was last increased from $40,000 to $90,000
in 1992, but the percentage of total mortgage balances covered
by VMLI has declined since then from 91 percent to 64 percent
because of the increase in housing costs during that period.
Section 104 would bring the program to a level of coverage more
in line with today's mortgages.
VA estimates that enactment of section 104 would result in
benefit costs of $22.0 million over 5 years and $54.9 million
over 10 years.
Before last year, SGLI coverage of a covered
servicemember's insurable dependent ended either 120 days after
the member elected to end coverage or the earliest of three
dates: (1) 120 days after the member died; (2) 120 days after
the date the member's coverage ended; or (3) 120 days after the
dependent ceased to be an insurable dependent. Section 403(b)
of Public Law 110-389, at VA's request, amended the second of
the three listed dates to be simply the date the member's
coverage ended. The purpose was to provide that an insurable
dependent's coverage would end when the member's coverage
ended, generally 120 days after separation or release from
active service, rather than 120 days after the member's
coverage ended, or 240 days after the member's separation or
release from active service. That amendment, however,
inadvertently allowed certain insurable dependents' coverage to
continue long after the members' separation or release from
service--insurable dependents of persons on active duty or
Ready Reservists who are totally disabled on the date of
separation or release from service or assignment. Such insureds
on active duty are potentially eligible for continued coverage
for up to 2 years after the date of separation or release from
service and such Ready Reservists are potentially eligible for
an additional one year of coverage after separation or release
from an assignment. Under the recent amendment, the insurable
dependents of insureds on active duty are also potentially
eligible for continued coverage for up to 2 years after the
date of separation or release from service or in the case of an
insurable dependent of a Ready Reservist up to 1 year after the
date of separation or release from an assignment.
Section 105 of the bill would correct the inadvertent
omission of those insurable dependents from the scope of the
recent amendment. Section 105 would amend the second of the 3
dates listed above to be ``120 days after the date of
separation or release from the uniformed services.'' Under that
provision, no insurable dependent, not even those of members
who remain covered for up to 1 or 2 years after service or
assignment, could remain covered under SGLI for more than 120
days after the member's separation or release from service or
assignment.
VA supports this provision. It would equitably provide that
all insurable spouses of servicemembers, whether those members
are disabled or not, would have the same time period in which
to convert their SGLI coverage to a privately-obtained policy,
consistent with the other conversion time periods specified in
section 1 968(a)(5) of title 38 of the United States Code.
However, section 105 would specify that a dependent's coverage
would terminate within the specified period after the member is
separated or released ``from the uniformed services.'' This
phrase would not include Ready Reservists who are separated or
released from an ``assignment'' rather than from the
``uniformed services.''
No costs are associated with this provision.
TITLE II--COMPENSATION AND PENSION MATTERS
Section 201 of S.728 would require VA to increase the
monthly payment of temporary dependency and indemnity
compensation (DIC) payable for a limited period under 38 U.S.C.
Sec. 1311(f) to a surviving spouse with one or more dependent
children under the age of 18 years, whenever benefit payments
under title II of the Social Security Act are increased as a
result of an increase in the cost of living. These DIC payments
would be increased by the same percentage as Social Security
benefits are increased, effective the same date as the Social
Security benefit increase is effective.
VA supports enactment of this provision, the benefit costs
of which would be insignificant.
Section 202 would clarify that veterans entitled to pension
based on advanced age alone rather than on permanent and total
disability do not qualify for special monthly pension under
subsections (d), (e), or (f)(2)-(4) of section 1521, United
States Code. Wartime veterans age 65 or older would continue to
be eligible for rates of pension prescribed by subsections (b),
(c), (f)(1) and (5), and (g) of section 1521. It would also
clarify that pension based on age alone is subject to three
limitations also applicable to pension based on permanent and
total disability: (1) certain children's income is attributable
to a veteran for purposes of determining the veteran's annual
income; (2) a veteran is considered to be living with a spouse
who resides elsewhere unless they are estranged; and (3) a
veteran who is entitled to pension based on his or her own
wartime service and based on someone else's service is entitled
to receive only the greater benefit. These amendments would
apply to pension claims filed on or after the date of
enactment.
VA supports enactment of section 202 because it would
accomplish the same purpose for which VA proposed legislation
to the last Congress. In 2001, Congress made wartime veterans
age 65 years or older eligible for pension without regard to
the permanent-and-total-disability requirement of the statute
authorizing pension to veterans who are permanently and totally
disabled. In 2006, the Court of Appeals for Veterans Claims
held that veterans age 65 or older are also eligible for the
higher rate of pension authorized for veterans who are
permanently housebound, without regard to the permanent-and-
total-disability requirement. Although the court's holding is
arguably a plausible interpretation of the literal terms of the
statutes, we believe it is inconsistent with Congress' intent
because it results in inconsistent and illogical treatment of
veterans' claims and subverts the primary purpose for
authorizing the higher rate of pension--to provide additional
pension to veterans with additional expenses due to their high
degree of disability above and beyond permanent and total
disability. Under the court's interpretation, elderly veterans
who are not permanently and totally disabled could receive a
higher pension rate than elderly veterans who are permanently
and totally disabled. Believing that Congress did not intend
such an inequitable result, we proposed legislation to overturn
the court's interpretation, and we support enactment of section
202.
We estimate cost savings of $3.2 million the first year and
$175.5 million over 10 years.
Section 203(a) would increase monthly rates of DIC for
disabled surviving spouses. Section 203(b) would increase the
maximum and minimum monthly rates of DIC payable to parents and
provide for an increased monthly payment for parents who, by
reason of disability, are permanently housebound but do not
qualify for parents in need of aid and attendance. Section
203(c) would codify increases already made in the annual income
limits applicable to parents' DIC. Section 203(d) would replace
the obsolete term ``six months' death gratuity'' in 38 U.S.C.
Sec. 1315(f)(1)(A) because the death gratuity paid by DOD under
10 U.S.C. Sec. Sec. 1475-1 480 is a fixed amount, rather than
the equivalent of six months of a servicemember's pay. Section
203(e) would subject the new rate of DIC for a housebound
parent and the minimum monthly amounts of parents' DIC to
annual increases indexed to cost-of-living increases in Social
Security benefits. The amendments made by section 203 would
take effect on October 1, 2009, and would apply to DIC payable
for months beginning on or after that date. However, there
would be no cost-of-living increase in the minimum monthly DIC
rates during fiscal year 2010.
VA is committed to administering DIC payments that meet
program goals. The 2001 ``Program Evaluation of Benefits for
Survivors of Veterans with Service-Connected Disabilities''--
the same study that provides the basis for our support of the
proposed increases to life insurance--found that DIC
successfully meets the needs of beneficiaries. While our
support for cost-of-living increases as proposed under S.407
demonstrates our commitment to providing adequate and necessary
increases over time, we believe that the increases to DIC
proposed under section 203 are not necessary to achieve the
goals of the program.
In addition, the purpose of increasing the minimum monthly
payment for parents' DIC from $5 to $100 and indexing that
figure for inflation is not clear. Because paying parents an
arbitrary minimum monthly amount of DIC that is higher than the
payment computed under the need-based formula established in
VA's implementing regulations at 38 C.F.R. Sec. 3.25 is a
departure from the need-based principles underlying parents'
DIC, any increase in the minimum rate would constitute a
further departure from need-based principles, and indexing the
minimum payment for inflation would amplify this departure.
VA did not have sufficient time to prepare benefit cost
estimates for this provision. No additional administrative
costs are anticipated. With the Committee's permission, we will
provide a cost estimate for the record.
Section 204(a) would increase from $90 to $100 the maximum
monthly pension amounts for spouse-less and childless veterans
who are being furnished VA domiciliary or nursing home care or
are covered by a Medicaid plan for services furnished by a
nursing facility. These limits would be subject to annual cost-
of-living increases indexed to such increases to Social
Security benefits. Section 204(b) would subject children in
receipt of death pension to the limits currently applicable to
institutionalized veterans and surviving spouses. Under section
204(c), these amendments would be effective October 1, 2009,
but no cost-of-living adjustment would be made during fiscal
year 2010.
VA does not object to these increases in maximum pension
payments to affected individuals so long as Congress enacts
offsetting savings. Application of the limits to children in
receipt of death pension would be reasonable. And under the
annual cost-of-living adjustment, these beneficiaries would
receive benefit increases commensurate with those provided for
other VA benefits.
We estimate costs of $5.3 million over one year and $10.7
million over 2 years.
TITLE III--BURIAL AND MEMORIAL AFFAIRS MATTERS
Sections 301 and 302 would require VA to make supplemental
payments in addition to currently required statutory payments
for funeral and burial-related expenses, but if and only if
funds are specifically appropriated in advance for that
purpose. Specifically, those sections would require a
supplemental payment of $900 for non-service-connected deaths,
$2,100 for service-connected deaths, and $445 for the plot or
interment allowance. Each supplemental payment would be subject
to the availability of funds specifically provided for the
particular type of allowance in advance by an appropriations
act. These sections would require an annual adjustment to the
supplemental payment amounts in relation to the Consumer Price
Index, applicable to deaths occurring in subsequent fiscal
years. They would require VA to periodically estimate the
funding needed to provide supplemental payments for all
eligible recipients for the remainder of the fiscal year in
which such an estimate is made and the appropriations needed to
provide all eligible recipients supplemental payments in the
next fiscal year. VA would have to submit these estimates to
the Committees on Appropriations and Veterans' Affairs of the
Senate and House of Representatives four times a year. Finally,
these sections would authorize appropriations for these
purposes. These changes would be effective October 1, 2009, and
apply to deaths occurring on or after that date.
Veterans' advocates have argued for higher payments because
the current allowances generally do not cover present-day
burial and funeral costs or plot expenses. Advocates have also
pushed for annual cost-of-living increases for funeral, burial,
and plot benefits. However, VA cannot support the bill as
drafted. The supplemental benefits would only be available up
to the point at which discretionary funding is exhausted, which
could lead to inequities in the level of benefits available to
individuals. VA has not supported similar legislation in the
past because funding a single benefit from multiple sources
(e.g., from the mandatory Compensations, Pensions, and Burial
account and a new discretionary account) can create numerous
complications in administration and represents an unsound
budgeting practice. Finally, the frequent reporting
requirements to Congress would be administratively burdensome
and would distract VA from providing Veterans with timely
claims adjudication and payment.
We estimate that enactment of section 301 of this bill
would result in costs of $106.3 million during the first year,
$569.2 million over 5 years, and $1.3 billion over 10 years. We
estimate that enactment of section 302 of this bill would
result in costs of $30.4 million during the first year, $162.5
million over 5 years, and $367.7 million over 10 years. No
administrative costs are associated with this bill.
TITLE IV--OTHER MATTERS
Section 401(a) would add to the list of disabilities that
qualify a compensation-receiving veteran or an active duty
servicemember for assistance in obtaining an automobile or
other conveyance or adaptive equipment an additional
disability--a severe burn injury, as determined pursuant to VA
regulations. Section 401(b) would make various stylistic
changes to section 3901 of title 38, United States Code.
Section 402(a) would require VA to make a supplemental
payment in addition to the currently required statutory payment
for the purchase of an automobile or other conveyance, but only
if funds are specifically appropriated in advance for that
purpose. Specifically, it would require the supplemental
payment to equal the difference between the amount of payment
that would be made if the maximum amount were $22,484 and the
current $11,000 amount authorized by section 3902(a).
Section 402(a) would also require VA to annually increase a
specified adjusted amount ($22,484) to 80 percent of the
average retail cost of new automobiles for the preceding
calendar year. It would require VA to periodically estimate the
funding needed to provide supplemental payments for all
eligible recipients for the remainder of the fiscal year in
which such an estimate is made and the appropriations needed to
provide all eligible recipients supplemental payments in the
next fiscal year and to submit these estimates to the
Committees on Appropriations and Veterans' Affairs of the
Senate and House of Representatives four times a year.
Finally, section 402(c) would authorize appropriations for
these purposes, and, under section 402(d), these changes would
be effective October 1, 2009, and apply to payments made under
section 3902 on or after that date.
We plan to review the scope of our existing authority to
determine if there are circumstances under which severe burn
victims are not adequately covered. In any event, VA cannot
support the bill as drafted. The supplemental benefits would be
available only up to the point at which discretionary funding
is exhausted, which could lead to inequities in the level of
benefits available to individuals. VA has not supported similar
legislation in the past because funding a single benefit from
multiple sources can create numerous complications in
administration and represents an unsound budgeting practice.
Finally, the frequent reporting requirements to Congress would
be administratively burdensome and would distract VA from
providing Veterans with timely claims adjudication and payment.
For an estimate of the costs associated with the increase
section 402 would provide, please see our comments regarding
S.820.
S.820 ``VETERANS MOBILITY ENHANCEMENT ACT OF 2009''
S.820, the ``Veterans Mobility Enhancement Act of 2009,''
would increase from $11,000 to $22,500 the maximum amount of
assistance VA is authorized to provide an eligible person to
obtain an automobile or other conveyance. It would also require
VA to increase that amount, effective October 1 of each year
(beginning in 2010), to an amount equal to 80 percent of the
average retail cost of new automobiles for the preceding
calendar year. It would require VA to establish the method for
determining that average retail cost and authorize VA to use
data developed in the private sector if VA determines that the
data are appropriate.
We understand the importance of providing sufficient
resources for vehicles or adaptive equipment to servicemembers
and veterans who rely on them, but we cannot support this bill
at this time. In order to best support the goals of this
program, we will need time to review the appropriate amount to
provide for this benefit payment.
We estimate benefit costs of $16.2 million in the first
year and $159.9 million over ten years.
S.842
Section 1 of this bill concerning mortgages and mortgage
foreclosures relates to the Servicemembers Civil Relief Act, a
law primarily affecting active duty service personnel.
Accordingly, VA defers to the views of DOD with regard to that
section.
Section 2 of this bill would authorize VA to purchase a VA-
guaranteed home loan from the mortgage holder, if the loan is
modified by a Bankruptcy Judge under the authority of 11 U.S.C.
Sec. 1322(b). Specifically, it would permit VA to pay the
mortgage holder the unpaid balance of the loan, plus accrued
interest, as of the date a bankruptcy petition is filed. In
exchange, the mortgage holder would be required to assign,
transfer, and deliver to the Secretary all rights, interest,
claims, evidence, and records with respect to the loan.
VA is aware of legislation that, if enacted, would
eliminate the apparent incongruity between section 2 of this
bill and the current Bankruptcy Code. Section 103 of H.R. 1106,
as passed by the House of Representatives on March 5, would
eliminate the prohibition against modifying mortgages on
principal residences. Additionally, the section 2 provision
appears duplicative of the authority that would be provided to
VA in section 121 of H.R. 1106. VA cannot support any
additional repurchasing authority until the budgetary impacts
of such authority on existing and future cohorts of loans can
be reviewed. Because VA cannot determine the effects of section
2 as a stand-alone provision, VA cannot currently estimate the
costs or savings associated with the provision.
Section 103 of H.R. 1106, as passed by the House of
Representatives on March 5, would eliminate the prohibition
against modifying mortgages on principal residences.
Additionally, the section 2 provision appears duplicative of
the authority that would be provided to VA in section 121 of
H.R. 1106. VA cannot support any additional repurchasing
authority until the budgetary impacts of such authority on
existing and future cohorts of loans can be reviewed. Because
VA cannot determine the effects of section 2 as a stand-alone
provision, VA cannot currently estimate the costs or savings
associated with the provision.
S.847
We did not have sufficient time before this hearing to
develop a position on this bill, but will provide our position
to the Committee in writing for the record.
[S.919]
We did not have sufficient time before this hearing to
develop a position on this bill, but will provide our position
to the Committee in writing for the record.
[S.1016]
We did not have sufficient time before this hearing to
develop a position on this bill, but will provide our position
to the Committee in writing for the record.
Mr. Chairman, this concludes my statement. I would be
pleased to answer any questions you or the other members of the
Committee may have.
------
The Secretary of Veterans Affairs,
Washington, DC, May 14, 2009.
Hon. Daniel K. Akaka,
Chairman,
Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: I am writing to provide you with the
views of the Department of Veterans Affairs (VA) on the
following bills: S. 315, S. 847, S. 919, and a draft bill to
modify the commencement of the payment of original awards of
compensation for veterans who are retired or separated from the
uniformed services for disability. These bills were included on
the Senate Veterans' Affairs Committee agenda for the April 29,
2009, hearing, but VA was unable to provide its views in time
for that hearing. We are also providing cost estimates for
S. 514 and section 203 of S. 728, as promised during the
hearing.
* * * * * * *
S. 847
Currently, section 3695(a) of title 38, United States Code,
limits the aggregate entitlement for any person who receives
educational assistance under two or more of the programs listed
in that section to 48 months. This limitation is applicable,
most notably, to the Montgomery GI Bill Active Duty (MGIB-AD)
program (chapter 30), the Vietnam Era Assistance Program
(chapter 32), the Survivors' and Dependents' Educational
Assistance (DEA) program (chapter 35), the new Post-9/11 GI
Bill (chapter 33), the Montgomery GI Bill Selected Reserve
program (chapter 1606 of title 10), and the Reserve Educational
Assistance Program (chapter 1607 of title 10). Section 1(a) of
S. 847 would remove the DEA program from this list of
educational assistance programs with a 48-month-aggregate-
benefit limitation effective on the date of the enactment of
the Act. This amendment would allow an individual who earns
entitlement based on his or her own service in the Armed Forces
not to have such entitlement reduced because they received
benefits under the DEA program.
Section 1(b) of S. 847 states that such law would not
revive any entitlement to DEA or other assistance under the
provisions of law listed under section 3695(a) that was
terminated by that section prior to enactment of the Act.
Section 1(c) of S. 847 would revive, however, any entitlement
to assistance under the provisions of law listed under section
3695(a) that was reduced because the individual used his or her
DEA benefits if, the day before enactment of the Act, the
individual had not used a total of 48 months entitlement.
(We note that section 1(c) of S. 847 could be read to mean
that those individuals who used 48 months of entitlement
(including DEA benefits) before date of enactment and who are
still within their delimiting period could also have their
entitlement recalculated without consideration of their use of
DEA benefits.)
The President's Budget includes numerous programs to
support our Veterans and their families. However, we are unable
to support this measure at this time. VA has not yet begun to
administer the new Post-9/11 GI Bill benefit, a generous new
benefit for Veterans that includes authority for some
servicemembers to transfer eligibility to their dependents. We
need more time to study how this new program impacts usage of
all VA education benefits before supporting any changes to the
benefit package. In addition, VA cannot support this measure
because no funding for such a proposal is included in the
Administration's fiscal year 2010 budget.
VA does not have the specific data necessary to cost this
proposal. While VA can determine the number of participants who
used prior VA training and the amount of entitlement used in
previous programs, we cannot extract the specific DEA
population. Further, VA has no way of determining how many
servicemembers elected not to participate in the MGIB-AD
program because of their prior use of DEA benefits or how many
individuals potentially eligible for the Post-9/11 GI Bill are
or were eligible for chapter 35 benefits.
S. 919 ``CLARIFICATION OF CHARACTERISTICS OF COMBAT SERVICE
ACT OF 2009''
S. 919, the ``Clarification of Characteristics of Combat
Service Act of 2009,'' would amend 38 U.S.C. Sec. 1154(a) to
revise the requirements for VA regulations pertaining to
service connection of disabilities. Currently, section 1154(a)
mandates VA regulations requiring that, when adjudicating a
claim for service connection, due consideration be given to the
places, types and circumstances of a Veteran's service as shown
by the Veteran's service record, official history of each
organization in which the veteran served, the Veteran's medical
records, and all pertinent medical and lay evidence. In
addition to these regulations, S. 919 would require regulations
requiring that, in the case of a Veteran who served in a
particular combat zone, VA must ``accept credible lay or other
evidence as sufficient proof that the veteran encountered an
event that the Secretary specifies in such regulations as
associated with service in particular locations where the
veteran served or in particular circumstances under which the
veteran served in such combat zone.'' Under S. 919, the term
``combat zone'' would be defined in accordance with section 112
of the Internal Revenue Code of 1986 or a predecessor provision
of law.
VA opposes enactment of S. 919 for the following reasons.
S. 919 would require VA to implement a complex scheme under
which VA would be required to specify in regulations ``events''
that are ``associated with service in particular locations'' or
``in particular circumstances under which the veteran served
in'' combat zones designated under 26 U.S.C. Sec. 112. The
breadth of such a task would be mammoth. Although S. 919 refers
to ``service in particular locations'' and in ``combat zones,''
hostilities can occur anywhere around the globe, overseas as
well as on American soil, and thus, to be inclusive, the
regulations required by S. 919 would have to cover the entire
world. In addition, the language of the proposed amendment is
too vague, offering no guidance on what would constitute an
``event'' that is ``associated with service in particular
locations where the veteran served or in particular
circumstances under which the veteran served in * * *
combat.'' Further, VA does not have the expertise to define
events associated with service in particular locations or
particular circumstances of combat.
We also oppose defining the term ``combat zone'' in
accordance with 26 U.S.C. Sec. 112. Section 112(c)(2) of title
26, United States Code, defines ``combat zone'' as any area
that the President by Executive Order designates as an area in
which U.S. Armed Forces are engaging or have engaged In combat.
There are currently three combat zones designated by Executive
Order (26 U.S.C. Sec. 112 note), including the airspace above
each: (1) Persian Gulf, Red Sea, Gulf of Oman, certain portions
of the Arabian Sea, Gulf of Aden, and total land areas of Iraq,
Kuwait, Saudi Arabia, Oman, Bahrain, Qatar, and United Arab
Emirates, beginning January 17, 1991;
(2) Federal Republic of Yugoslavia (Serbia/Montenegro),
Albania, Adriatic Sea, and Ionian Sea north of the 39th
parallel, beginning March 24, 1999; and (3) Afghanistan,
beginning September 19, 2001. Two other Executive Orders (26
U.S.C. Sec. 112 note) previously designated the following areas
as combat zones: (1) Vietnam and adjacent waters within certain
limits, for certain periods of service; and (2) Korea and
adjacent waters, for service during certain
periods.
VA opposes defining ``combat zone'' in accordance with 26
U.S.C. Sec. 112 because of the breadth of the title 26
definition and implementing regulations and because it would
exclude certain Veterans who served during other periods of
hostilities. Combat activities have not been terminated by the
President in three of the currently designated combat zones.
For example, members who served in Bahrain after fighting
ceased in the first Persian Gulf War and before fighting began
in Operation Enduring Freedom (OEF) on October 6, 2001, or
Operation Iraqi Freedom (OIF) on March 20, 2003, are covered
under one of these Executive Orders. If VA regulations
promulgated pursuant to S. 919 provided a reduced burden of
proof to all veterans covered by these Executive Orders,
Veterans who served in Bahrain during a period of relative calm
would have the same reduced burden of proof as Veterans who
served in Bahrain during the first Persian Gulf War or OIF.
Further, these Executive Orders do not cover service in World
War II and certain smaller engagements, such as Grenada.
Furthermore, 26 CFR Sec. 1.112-1(e), which implements 26
U.S.C. Sec. 112, provides that a member who performs military
service in an area outside the area designated as a combat zone
under 26 U.S.C. Sec. 112(c)(2) is deemed to have service in
that combat zone ``while the member's service is in direct
support of military operations in that zone'' and the member is
qualified for special pay under 37 U.S.C. Sec. 310. For
example, the Department of Defense (DOD) has certified service
in Kyrgyzstan and Uzbekistan beginning on October 1, 2001, and
in Yemen beginning on April 10, 2002, as service in direct
support of OEF and service in Israel between January 1, 2003,
and July 2003 and service in Jordan, beginning March 19, 2003,
as service in direct support of OIF.
There is no termination date for service in certain areas
designated by DOD as service in direct support of operations in
a combat zone. If VA regulations provided a reduced burden of
proof to all veterans covered by 26 CFR Sec. 1.112-1(e),
veterans who served, for example, in Jordan in 2008 and 2009
would have the same reduced burden of proof under the proposed
rule as veterans who served in Jordan immediately after
hostilities began in OIF.
We also believe that S. 919 is unnecessary. Section 1154(b)
of title 38, United States Code, already provides a relaxed
evidentiary standard for service connection of disabilities
that result from a veteran's engagement in combat with the
enemy. The purpose of 38 U.S.C. Sec. 1154(b) is to recognize
the hardships and dangers involved with military combat and to
acknowledge that official documentation is unlikely during the
heat of combat. As a result, Veterans who engaged in combat
with the enemy and file claims for service-connected disability
benefits related to that combat are not subject to the same
evidentiary requirements as non-combat veterans but rather are
afforded a relaxed evidentiary standard to ensure they are not
disadvantaged by the circumstances of their combat service in
proving their benefit claims. Many of the Veterans who served
in the combat zones designated by Executive Orders likely
qualify for the reduced evidentiary standard in section
1154(b). On the other hand, there is no such need for a lowered
evidentiary standard for veterans who did not engage in combat
with the enemy but did serve in a combat zone designated by
Executive Order because evidence necessary to establish service
connection is likely to be more easily obtained through routine
military record keeping. We believe that this approach is fair
and equitable.
VA cannot provide specific benefit costs associated with
enactment of S. 919 due to its lack of clarity. There are no
data available to assess the numbers of claims that would be
granted based on application of regulations promulgated under
this provision.
A DRAFT BILL TO MODIFY THE COMMENCEMENT OF THE PERIOD OF PAYMENT OF
ORIGINAL AWARDS OF COMPENSATION FOR VETERANS WHO ARE RETIRED OR
SEPARATED FROM THE UNIFORMED SERVICES FOR DISABILITY
This unnumbered draft bill would require VA to pay
compensation awarded based on an original claim to veterans who
retired or separated from service for a disability as of the
effective date of the award of compensation. Current law
prohibits the payment of benefits based on an award or an
increased award of compensation for any period before the first
day of the calendar month following the month in which the
award or increased award became effective. The draft bill would
also provide that, in the case of Veterans retired or separated
from active service due to disability who must provide a waiver
of retired pay in order to receive VA benefits, the effective
date of the waiver would be the effective date of the award of
compensation if the waiver is filed not later than 30 days
after retirement or separation from military service.
Currently, under 38 U.S.C. Sec. 5111(b)(2), if a person in
receipt of retired or retirement pay would also be eligible to
receive VA compensation upon the filing of a waiver, such
waiver does not become effective until the first day of the
month following the month in which such waiver is filed. The
draft bill would apply to awards of compensation based on
original claims that become effective on or after the date of
enactment.
VA does not support the draft bill because it would provide
up to one additional month of VA compensation for only one
group of Veterans, i.e., Veterans who retire or separate from
service due to disability. Also, we are unaware of a need to
expedite payment of VA compensation to this single group of
disabled Veterans. Veterans who retire or separate from service
because of disability currently begin receiving disability
retirement pay shortly after discharge from service and then
receive VA compensation after the military retired pay centers
have processed waivers provided by the Veterans and military
retirement pay has been reduced by an amount equal to the VA
compensation to which the veterans are entitled. We note as
well that many of the Veterans who would be entitled to
additional VA compensation under this bill may also be entitled
to combat-related special compensation under 10 U.S.C.
Sec. 1413a and to concurrent receipt of military retired pay
under 10 U.S.C. Sec. 1414.
VA estimates the cost associated with this draft bill, if
enacted, would be $4.5 million for the first year and $49.2
million over 10 years. Also, there would be substantial
administrative cost to reprogram the VETSNET system to provide
these payments.
S. 514 ``VETERANS REHABILITATION AND TRAINING IMPROVEMENTS
ACT OF 2009''
Section 4 of S. 514, the ``Veterans Rehabilitation and
Training Improvements Act of 2009,'' would remove the
limitation on the number of veterans who may be provided
programs of independent living. VA estimates that there would
be no costs associated with this section if enacted. The
current cap of 2,600 participants has not been reached in the
past two fiscal years, and the number of participants has
actually decreased from 2,115 cases in 2007 to 1,728 cases in
2008. This trend indicates that the program is not growing at
this time and removing the limit of 2,600 participants would
not result in additional participants or cost. Therefore, VA
believes this legislation to be unnecessary.
SECTION 203 OF S. 728
Section 203 would increase monthly rates of dependency and
indemnity compensation (DIC) for disabled surviving spouses,
increase the maximum and minimum monthly rates of DIC payable
to parents, provide increased monthly payments for parents who,
by reason of disability, are permanently housebound but do not
qualify for aid and attendance, and codify increases already
made in the annual income limits applicable to parents' DIC.
The new rate of DIC for a housebound parent and the minimum
monthly amounts of parents' DIC would be subject to annual
increases indexed to cost-of-living increases in Social
Security benefits. The amendments made by section 203 would
become effective on October 1, 2009, and would apply to DIC
payable for months beginning on or after that date. However,
there would be no cost-of-living increase in the minimum
monthly DIC rates during fiscal year 2010. VA does not support
section 203 because these proposed increases to DIC are not
necessary to achieve the goals of the program.
VA estimates the cost associated with this amendment, if
enacted, to be $4.6 million in the first year and nearly $49.6
over 10 years.
The Office of Management and Budget has advised that there
is no objection to the submission of this report from the
standpoint of the Administration's program.
Sincerely,
Eric K. Shinseki.
* * * * * * *
Changes in Existing Law
In compliance with paragraph 12 of Rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the Committee bill, as reported, are shown as follows (existing
law proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 3--THE PRESIDENT
* * * * * * *
CHAPTER 5--EXTENSION OF CERTAIN RIGHTS AND PROTECTIONS TO PRESIDENTIAL
OFFICES
* * * * * * *
Subchapter II--Extension of Rights and Protections
Part A. Employment Discrimination, Family and Medical Leave, Fair Labor
Standards, Employee Polygraph Protection, Worker Adjustment and
Retraining, Employment and Reemployment of Veterans, and Intimidation
* * * * * * *
SEC. 416. RIGHTS AND PROTECTIONS RELATING TO VETERANS' EMPLOYMENT AND
REEMPLOYMENT
(a) * * *
(b) Remedy. The remedy for a violation of subsection (a)
shall be such damages as would be appropriate if awarded [under
paragraphs (1) and (2)(A) of section 4323(c) of title 38] under
section 4323(d) of title 38.
* * * * * * *
------
TITLE 10--ARMED FORCES
SUBTITLE A--GENERAL MILITARY LAW
* * * * * * *
PART IV--SERVICE, SUPPLY, AND PROCUREMENT
* * * * * * *
CHAPTER 137--PROCUREMENT GENERALLY
SEC.
2302. DEFINITIONS
* * * * * * *
2335. NOTICE TO CONTRACTORS OF POTENTIAL OBLIGATIONS RELATING TO
EMPLOYMENT AND REEMPLOYMENT OF MEMBERS OF THE ARMED
FORCES.
* * * * * * *
SEC. 2335. NOTICE TO CONTRACTORS OF POTENTIAL OBLIGATIONS RELATING TO
EMPLOYMENT AND REEMPLOYMENT OF MEMBERS OF THE ARMED
FORCES
Each contract for the procurement of property or services
that is entered into by the head of an executive agency shall
include a notice to the contractor that the contractor may have
obligations under chapter 43 of title 38.
* * * * * * *
------
TITLE 38--VETERANS' BENEFITS
PART I--GENERAL PROVISIONS
* * * * * * *
CHAPTER 3--DEPARTMENT OF VETERANS AFFAIRS
* * * * * * *
SEC. 315. REGIONAL OFFICES
(a) * * *
(b) The Secretary may maintain a regional office in the
Republic of the Philippines until [December 31, 2009] December
31, 2011.
* * * * * * *
PART II--GENERAL BENEFITS
CHAPTER 11--COMPENSATION FOR SERVICE-CONNECTED DISABILITY OR DEATH
* * * * * * *
Subchapter II--Wartime Disability Compensation
* * * * * * *
SEC. 1114. RATES OF WARTIME DISABILITY COMPENSATION
* * * * * * *
(m) if the veteran, as the result of service-
connected disability, has suffered the anatomical loss
or loss of use of both hands, or of both legs [at a
level, or with complications,] with factors preventing
natural knee action with prostheses in place, or of one
arm and one leg [at levels, or with complications,]
with factors preventing natural elbow and knee action
with prostheses in place, or has suffered blindness in
both eyes having only light perception, or has suffered
blindness in both eyes, rendering such veteran so
significantly disabled as to be in need of regular aid
and attendance, the monthly compensation shall be
$3,671;
(n) if the veteran, as the result of service-
connected disability, has suffered the anatomical loss
or loss of use of both arms [at levels, or with
complications,] with factors preventing natural elbow
action with prostheses in place, has suffered the
anatomical loss of both legs [so near the hip as to]
with factors that prevent the use of prosthetic
appliances, or has suffered the anatomical loss of one
arm and one leg [so near the shoulder and hip as to]
with factors that prevent the use of prosthetic
appliances, or has suffered the anatomical loss of both
eyes, or has suffered blindness without light
perception in both eyes, the monthly compensation shall
be $4,176;
(o) if the veteran, as the result of service-
connected disability, has suffered disability under
conditions which would entitle such veteran to two or
more of the rates provided in one or more subsections
(l) through (n) of this section, no condition being
considered twice in the determination, or if the
veteran has suffered bilateral deafness (and the
hearing impairment in either one or both ears is
service connected) rated at 60 percent or more
disabling and the veteran has also suffered service-
connected total blindness with 20/200 visual acuity or
less, or if the veteran has suffered service-connected
total deafness in one ear or bilateral deafness (and
the hearing impairment in either one or both ears is
service connected) rated at 40 percent or more
disabling and the veteran has also suffered service-
connected blindness having only light perception or
less, or if the veteran has suffered the anatomical
loss of both arms [so near the shoulder as to] with
factors that prevent the use of prosthetic appliances,
the monthly compensation shall be $4,667;
(p) in the event the veteran's service-connected
disabilities exceed the requirements for any of the
rates prescribed in this section, the Secretary may
allow the next higher rate or an intermediate rate, but
in no event in excess of $4,667. In the event the
veteran has suffered service-connected blindness with
5/200 visual acuity or less and (1) has also suffered
bilateral deafness (and the hearing impairment in
either one or both ears is service connected) rated at
no less than 30 percent disabling, the Secretary shall
allow the next higher rate, or (2) has also suffered
service-connected total deafness in one ear or service-
connected anatomical loss or loss of use of one hand or
one foot, the Secretary shall allow the next
intermediate rate, but in no event in excess of $4,667.
In the event the veteran has suffered service-connected
blindness, having only light perception or less, and
has also suffered bilateral deafness (and the hearing
impairment in either one or both ears is service
connected) rated at 10 or 20 percent disabling, the
Secretary shall allow the next intermediate rate, but
in no event in excess of $4,667. In the event the
veteran has suffered the anatomical loss or loss of
use, or a combination of anatomical loss and loss of
use, of three extremities, the Secretary shall allow
the next higher rate or intermediate rate, but in no
event in excess of $4,667. Any intermediate rate under
this subsection shall be established at the arithmetic
mean, rounded down to the nearest dollar, between the
two rates concerned[;] .
* * * * * * *
(t) Subject to section 5503(c) of this title, if any
veteran, as the result of service-connected disability,
is in need of regular aid and attendance for the
residuals of traumatic brain injury, is not eligible
for compensation under subsection (r)(2), and in the
absence of such regular aid and attendance would
require hospitalization, nursing home care, or other
residential institutional care, the veteran shall be
paid, in addition to any other compensation under this
section, a monthly aid and attendance allowance equal
to the rate described in subsection (r)(2), which for
purposes of section 1134 of this title shall be
considered as additional compensation payable for
disability. An allowance authorized under this
subsection shall be paid in lieu of any allowance
authorized by subsection (r)(1).
* * * * * * *
Subchapter VI--General Compensation Provisions
* * * * * * *
SEC. 1154. CONSIDERATION TO BE ACCORDED TIME, PLACE, AND CIRCUMSTANCES
OF SERVICE
[(a) The Secretary shall include in the regulations
pertaining to service-connection of disabilities (1) additional
provisions in effect requiring that in 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 as shown by such
veteran's service record, the official history of each
organization in which such veteran served, such veteran's
medical records, and all pertinent medical and lay evidence,
and (2) the provisions required by section 5 of the Veterans'
Dioxin and Radiation Exposure Compensation Standards Act
(Public Law 98-542; 98 Stat. 2727).]
(a) The Secretary shall include in the regulations
pertaining to service-connection of disabilities the following:
(1) Provisions requiring that, in 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 as shown by--
(A) such veteran's service record;
(B) the official history of each organization
in which such veteran served;
(C) such veteran's medical records; and
(D) all pertinent medical and lay evidence.
(2) Provisions generally recognizing circumstances in
which lay evidence consistent with the place,
conditions, dangers, or hardships associated with
particular military service does not require
confirmatory official documentary evidence in order to
establish the occurrence of an event or exposure during
active military, naval, or air service.
(3) The provisions required by section 5 of the
Veterans' Dioxin and Radiation Exposure Compensation
Standards Act (Public Law 98-542; 98 Stat. 2727).
* * * * * * *
CHAPTER 13--DEPENDENCY AND INDEMNITY COMPENSATION FOR SERVICE-CONNECTED
DEATHS
* * * * * * *
Subchapter II--Dependency and Indemnity Compensation
* * * * * * *
SEC. 1311. DEPENDENCY AND INDEMNITY COMPENSATION TO A SURVIVING SPOUSE
* * * * * * *
(f)(1) Subject to paragraphs (2) and (3), if there is a
surviving spouse with one or more children below the age of 18,
the dependency and indemnity compensation paid monthly to the
surviving spouse shall be increased by $250 (as increased from
time to time under paragraph (4)), regardless of the number of
such children.
* * * * * * *
(4) Whenever there is an increase in benefit amounts
payable under title II of the Social Security Act (42 U.S.C.
401 et seq.) as a result of a determination made under section
215(i) of such Act (42 U.S.C. 415(i)), the Secretary shall,
effective on the date of such increase in benefit amounts,
increase the amount payable under paragraph (1), as such amount
was in effect immediately prior to the date of such increase in
benefit amounts, by the same percentage as the percentage by
which such benefit amounts are increased. Any increase in a
dollar amount under this paragraph shall be rounded down to the
next lower whole dollar amount.
(5) [(4)] Dependency and indemnity compensation under this
subsection is in addition to any other dependency and indemnity
compensation payable under this chapter.
* * * * * * *
SEC. 1318. BENEFITS FOR SURVIVORS OF CERTAIN VETERANS RATED TOTALLY
DISABLED AT TIME OF DEATH
(a) * * *
(b) * * *
* * * * * * *
(3) the veteran was a former prisoner of war [who
died after September 30, 1999,] and the disability was
continuously rated totally disabling for a period of
not less than one year immediately preceding death.
* * * * * * *
CHAPTER 15--PENSION FOR NON-SERVICE-CONNECTED DISABILITY OR DEATH OR
FOR SERVICE
* * * * * * *
Subchapter II--Veterans' Pensions
SERVICE PENSION
* * * * * * *
SEC. 1513. VETERANS 65 YEARS OF AGE AND OLDER
(a) The Secretary shall pay to each veteran of a period of
war who is 65 years of age or older and who meets the service
requirements of section 1521 of this title (as prescribed in
subsection (j) of that section) pension at the rates prescribed
[by section 1521 of this title and under the conditions (other
than the permanent and total disability requirement) applicable
to pension paid under that section.] by subsection (b), (c),
(f)(1), (f)(5), or (g) of that section, as the case may be and
as increased from time to time under section 5312 of this
title.
(b) The conditions in subsections (h) and (i) of section
1521 of this title shall apply to determinations of income and
maximum payments of pension for purposes of this section.
(c) [(b)] If a veteran is eligible for pension under both
this section and section 1521 of this title, pension shall be
paid to the veteran only under section 1521 of this title.
* * * * * * *
CHAPTER 19--INSURANCE
Subchapter I--National Service Life Insurance
* * * * * * *
SEC. 1922A. SUPPLEMENTAL SERVICE DISABLED VETERANS' INSURANCE FOR
TOTALLY DISABLED VETERANS
(a) Any person insured under section 1922(a) of this title
who qualifies for a waiver of premiums under section 1912 of
this title is eligible, as provided in this section, for
supplemental insurance in an amount not to exceed [$20,000]
$30,000.
* * * * * * *
Subchapter III--Servicemembers' Group Life Insurance
* * * * * * *
SEC. 1968. DURATION AND TERMINATION OF COVERAGE; CONVERSION
(a) * * *
* * * * * * *
(5) With respect to an insurable dependent of the
member, insurance under this subchapter shall cease--
(A) * * *
(B) on the earliest of--
(i) 120 days after the date of the
member's death;
[(ii) the date of termination of the
insurance on the member's life under
this subchapter; or]
(ii)(I) in the case of a member of
the Ready Reserve of a uniformed
service who meets the qualifications
set forth in subparagraph (B) or (C) of
section 1965(5) of this title, 120 days
after separation or release from such
assignment; or
(II) in the case of any other member
of the uniformed services, 120 days
after the date of the member's
separation or release from the
uniformed services; or
(iii) 120 days after the termination
of the dependent's status as an
insurable dependent of the member.
* * * * * * *
SEC. 1980A. TRAUMATIC INJURY PROTECTION
(a) * * *
* * * * * * *
(d)(1) Payments under [Payments under] this section for
qualifying losses shall be made in accordance with a schedule
prescribed by the Secretary, by regulation, specifying the
amount of payment to be made for each type of qualifying loss,
to be based on the severity of the qualifying loss. The minimum
payment that may be prescribed for a qualifying loss is
$25,000, and the maximum payment that may be prescribed for a
qualifying loss is $100,000.
(2) As the Secretary considers appropriate, the schedule
required by paragraph (1) may distinguish in specifying
payments for qualifying losses between the severity of a
qualifying loss of a dominant hand and a qualifying loss of a
nondominant hand.
* * * * * * *
CHAPTER 21--SPECIALLY ADAPTED HOUSING FOR DISABLED VETERANS
* * * * * * *
SEC. 2106. VETERANS' MORTGAGE LIFE INSURANCE
(a) * * *
(b) The amount of insurance provided an individual under
this section may not exceed the lesser of [$90,000] $150,000,
or $200,000 after January 1, 2012, or the amount of the loan
outstanding on the housing unit. The amount of such insurance
shall be reduced according to the amortization schedule of the
loan and may not at any time exceed the amount of the
outstanding loan with interest. If there is no outstanding loan
on the housing unit, insurance is not payable under this
section. If an eligible individual elects not to be insured
under this section, the individual may thereafter be insured
under this section, but only upon submission of an application,
payment of required premiums, and compliance with such health
requirements and other terms and conditions as may be
prescribed by the Secretary.
* * * * * * *
CHAPTER 23--BURIAL BENEFITS
SEC.
2301. FLAGS.
2302. FUNERAL EXPENSES.
2302A. FUNERAL EXPENSES: SUPPLEMENTAL BENEFITS.
2303. DEATH IN DEPARTMENT FACILITY; PLOT ALLOWANCE.
2303A. SUPPLEMENTAL PLOT ALLOWANCE.
2304. CLAIMS FOR REIMBURSEMENT.
2305. PERSONS ELIGIBLE UNDER PRIOR LAW.
2306. HEADSTONES, MARKERS, AND BURIAL RECEPTACLES.
2307. DEATH FROM SERVICE-CONNECTED DISABILITY.
2307A. DEATH FROM SERVICE-CONNECTED DISABILITY: SUPPLEMENTAL BENEFITS
FOR BURIAL AND FUNERAL EXPENSES.
2308. TRANSPORTATION OF DECEASED VETERAN TO A NATIONAL CEMETERY
* * * * * * *
SEC. 2302. FUNERAL EXPENSES
* * * * * * *
SEC. 2302A. FUNERAL EXPENSES: SUPPLEMENTAL BENEFITS
(a) In General.--(1) Subject to the availability of funds
specifically provided for purposes of this subsection in
advance in an appropriations Act, whenever the Secretary makes
a payment for the burial and funeral of a veteran under section
2302(a) of this title, the Secretary is also authorized and
directed to pay the recipient of such payment a supplemental
payment under this section for the cost of such burial and
funeral.
(2) No supplemental payment shall be made under this
subsection if the Secretary has expended all funds that were
specifically provided for purposes of this subsection in an
appropriations Act.
(b) Amount.--The amount of the supplemental payment
required by subsection (a) for any death is $900 (as adjusted
from time to time under subsection (c)).
(c) Adjustment.--With respect to deaths that occur in any
fiscal year after fiscal year 2010, the supplemental payment
described in subsection (b) shall be equal to the sum of--
(1) the supplemental payment in effect under
subsection (b) for the preceding fiscal year
(determined after application of this subsection), plus
(2) the sum of the amount described in section
2302(a) of this title and the amount under paragraph
(1), multiplied by the percentage by which--
(A) the Consumer Price Index (all items,
United States city average) for the 12-month
period ending on the June 30 preceding the
beginning of the fiscal year for which the
increase is made, exceeds
(B) such Consumer Price Index for the 12-
month period preceding the 12-month period
described in subparagraph (A).
(d) Estimates.--(1) From time to time, the Secretary shall
make an estimate of--
(A) the amount of funding that would be necessary to
provide supplemental payments under this section to all
eligible recipients for the remainder of the fiscal
year in which such an estimate is made; and
(B) the amount that Congress would need to
appropriate to provide all eligible recipients with
supplemental payments under this section in the next
fiscal year.
(2) On the dates described in paragraph (3), the Secretary
shall submit to the appropriate committees of Congress the
estimates described in paragraph (1).
(3) The dates described in this paragraph are the
following:
(A) April 1 of each year.
(B) July 1 of each year.
(C) September 1 of each year.
(D) The date that is 60 days before the date
estimated by the Secretary on which amounts
appropriated for the purposes of this section for a
fiscal year will be exhausted.
(e) Appropriate Committees of Congress Defined.--In this
section, the term ``appropriate committees of Congress''
means--
(1) the Committee on Appropriations and the Committee
on Veterans' Affairs of the Senate; and
(2) the Committee on Appropriations and the Committee
on Veterans' Affairs of the House of Representatives.
SEC. 2303. DEATH IN DEPARTMENT FACILITY; PLOT ALLOWANCE
* * * * * * *
SEC. 2303A. SUPPLEMENTAL PLOT ALLOWANCE
(a) In General.--(1) Subject to the availability of funds
specifically provided for purposes of this subsection in
advance in an appropriations Act, whenever the Secretary makes
a payment for the burial and funeral of a veteran under section
2303(a)(1)(A) of this title, or for the burial of a veteran
under paragraph (1) or (2) of section 2303(b) of this title,
the Secretary is also authorized and directed to pay the
recipient of such payment a supplemental payment under this
section for the cost of such burial and funeral or burial, as
applicable.
(2) No supplemental plot allowance payment shall be made
under this subsection if the Secretary has expended all funds
that were specifically provided for purposes of this subsection
in an appropriations Act.
(b) Amount.--The amount of the supplemental payment
required by subsection (a) for any death is $445 (as adjusted
from time to time under subsection (c)).
(c) Adjustment.--With respect to deaths that occur in any
fiscal year after fiscal year 2010, the supplemental payment
described in subsection (b) shall be equal to the sum of--
(1) the supplemental payment in effect under
subsection (b) for the preceding fiscal year
(determined after application of this subsection), plus
(2) the sum of the amount described in section
2303(a)(1)(A) of this title and the amount under
paragraph (1), multiplied by the percentage by which--
(A) the Consumer Price Index (all items,
United States city average) for the 12-month
period ending on the June 30 preceding the
beginning of the fiscal year for which the
increase is made, exceeds
(B) such Consumer Price Index for the 12-
month period preceding the 12-month period
described in subparagraph (A).
(d) Estimates.--(1) From time to time, the Secretary shall
make an estimate of--
(A) the amount of funding that would be necessary to
provide supplemental plot allowance payments under this
section to all eligible recipients for the remainder of
the fiscal year in which such an estimate is made; and
(B) the amount that Congress would need to
appropriate to provide all eligible recipients with
supplemental plot allowance payments under this section
in the next fiscal year.
(2) On the dates described in paragraph (3), the Secretary
shall submit to the appropriate committees of Congress the
estimates described in paragraph (1).
(3) The dates described in this paragraph are the
following:
(A) April 1 of each year.
(B) July 1 of each year.
(C) September 1 of each year.
(D) The date that is 60 days before the date
estimated by the Secretary on which amounts
appropriated for the purposes of this section for a
fiscal year will be exhausted.
(e) Appropriate Committees of Congress Defined.--In this
section, the term ``appropriate committees of Congress''
means--
(1) the Committee on Appropriations and the Committee
on Veterans' Affairs of the Senate; and
(2) the Committee on Appropriations and the Committee
on Veterans' Affairs of the House of Representatives.
* * * * * * *
SEC. 2307. DEATH FROM SERVICE-CONNECTED DISABILITY
* * * * * * *
SEC. 2307A. DEATH FROM SERVICE-CONNECTED DISABILITY: SUPPLEMENTAL
BENEFITS FOR BURIAL AND FUNERAL EXPENSES
(a) In General.--(1) Subject to the availability of funds
specifically provided for purposes of this subsection in
advance in an appropriations Act, whenever the Secretary makes
a payment for the burial and funeral of a veteran under section
2307(1) of this title, the Secretary is also authorized and
directed to pay the recipient of such payment a supplemental
payment under this section for the cost of such burial and
funeral.
(2) No supplemental payment shall be made under this
subsection if the Secretary has expended all funds that were
specifically provided for purposes of this subsection in an
appropriations Act.
(b) Amount.--The amount of the supplemental payment
required by subsection (a) for any death is $2,100 (as adjusted
from time to time under subsection (c)).
(c) Adjustment.--With respect to deaths that occur in any
fiscal year after fiscal year 2010, the supplemental payment
described in subsection (b) shall be equal to the sum of--
(1) the supplemental payment in effect under
subsection (b) for the preceding fiscal year
(determined after application of this subsection), plus
(2) the sum of the amount described in section
2307(1) of this title and the amount under paragraph
(1), multiplied by the percentage by which--
(A) the Consumer Price Index (all items,
United States city average) for the 12-month
period ending on the June 30 preceding the
beginning of the fiscal year for which the
increase is made, exceeds
(B) such Consumer Price Index for the 12-
month period preceding the 12-month period
described in subparagraph (A).
(d) Estimates.--(1) From time to time, the Secretary shall
make an estimate of--
(A) the amount of funding that would be necessary to
provide supplemental payments under this section to all
eligible recipients for the remainder of the fiscal
year in which such an estimate is made; and
(B) the amount that Congress would need to
appropriate to provide all eligible recipients with
supplemental payments under this section in the next
fiscal year.
(2) On the dates described in paragraph (3), the Secretary
shall submit to the appropriate committees of Congress the
estimates described in paragraph (1).
(3) The dates described in this paragraph are the
following:
(A) April 1 of each year.
(B) July 1 of each year.
(C) September 1 of each year.
(D) The date that is 60 days before the date
estimated by the Secretary on which amounts
appropriated for the purposes of this section for a
fiscal year will be exhausted.
(e) Appropriate Committees of Congress Defined.--In this
section, the term ``appropriate committees of Congress''
means--
(1) the Committee on Appropriations and the Committee
on Veterans' Affairs of the Senate; and
(2) the Committee on Appropriations and the Committee
on Veterans' Affairs of the House of Representatives.
* * * * * * *
PART III--READJUSTMENT AND RELATED BENEFITS
* * * * * * *
CHAPTER 31--TRAINING AND REHABILITATION FOR VETERANS WITH SERVICE-
CONNECTED DISABILITIES
* * * * * * *
SEC. 3120. PROGRAM OF INDEPENDENT LIVING SERVICES AND ASSISTANCE
(a) The Secretary may, under contracts with entities
[described in subsection (f)] described in subsection (e) of
this section, or through facilities of the Veterans Health
Administration, which possess a demonstrated capability to
conduct programs of independent living services for severely
handicapped persons, provide, under regulations which the
Secretary shall prescribe, programs of independent living
services and assistance under this chapter, in various
geographic regions of the United States, to veterans described
in subsection (b) of this section.
* * * * * * *
[(e) Programs of independent living services and assistance
shall be initiated for no more than 2600 veterans in each
fiscal year, and the first priority in the provision of such
programs shall be afforded to veterans for whom the reasonable
feasibility of achieving a vocational goal is precluded solely
as a result of a service-connected disability.]
(e) [(f)] Entities described in this subsection are (1)
public or nonprofit agencies or organizations, and (2) for-
profit entities in cases in which the Secretary determines that
services comparable in effectiveness to services available from
such an entity are not available, or cannot be obtained cost-
effectively from, public or nonprofit agencies or through
facilities of the Veterans Health Administration.
* * * * * * *
CHAPTER 36--ADMINISTRATION OF EDUCATIONAL BENEFITS
* * * * * * *
Subchapter II--Miscellaneous Provisions
* * * * * * *
SEC. 3695. LIMITATION ON PERIOD OF ASSISTANCE UNDER TWO OR MORE
PROGRAMS
(a) The aggregate period for which any person may receive
assistance under two or more of the provisions of law listed
below may not exceed 48 months (or the part-time equivalent
thereof):
* * * * * * *
(4) Chapters 30, 32, 33, 34, [35,] and 36 of this
title, and the former chapter 33.
* * * * * * *
(b) * * *
(c) The aggregate period for which any person may receive
assistance under chapter 35 of this title, on the one hand, and
any of the provisions of law referred to in subsection (a), on
the other hand, may not exceed 81 months (or the part-time
equivalent thereof).
* * * * * * *
CHAPTER 37--HOUSING AND SMALL BUSINESS LOANS
* * * * * * *
Subchapter III--Administrative Provisions
* * * * * * *
SEC. 3732. PROCEDURE ON DEFAULT
(a)(1) * * *
(2) (A) Before suit [Before suit] or foreclosure the holder
of the obligation shall notify the Secretary of the default,
and within thirty days thereafter the Secretary may, at the
Secretary's option, pay the holder of the obligation the unpaid
balance of the obligation plus accrued interest and receive an
assignment of the loan and security. Nothing in this section
shall preclude any forebearance for the benefit of the veteran
as may be agreed upon by the parties to the loan and approved
by the Secretary.
(B) In the event that a housing loan guaranteed under this
chapter is modified under the authority provided under section
1322(b) of title 11, the Secretary may pay the holder of the
obligation the unpaid balance of the obligation due as of the
date of the filing of the petition under title 11 plus accrued
interest, but only upon the assignment, transfer, and delivery
to the Secretary (in a form and manner satisfactory to the
Secretary) of all rights, interest, claims, evidence, and
records with respect to the housing loan.
* * * * * * *
CHAPTER 39--AUTOMOBILES AND ADAPTIVE EQUIPMENT FOR CERTAIN DISABLED
VETERANS AND MEMBERS OF THE ARMED FORCES
* * * * * * *
SEC. 3901. DEFINITIONS
For purposes of this [chapter--] chapter:
(1) The term ``eligible person'' [means--] means the
following:
(A) Any veteran [any veteran] entitled to
compensation under chapter 11 of this title for
any of the disabilities described [in subclause
(i), (ii), or (iii) below] in clause (i), (ii),
(iii), or (iv) of this subparagraph, if the
disability is the result of an injury incurred
or disease contracted in or aggravated by
active military, naval, or air service:
(i) The loss or permanent loss of use
of one or both feet[;] .
(ii) The loss or permanent loss of
use of one or both hands[;] .
(iii) The permanent impairment of
vision of both eyes of the following
status: central visual acuity of 20/200
or less in the better eye, with
corrective glasses, or central visual
acuity of more than 20/200 if there is
a field defect in which the peripheral
field has contracted to such an extent
that the widest diameter of visual
field subtends an angular distance no
greater than twenty degrees in the
better eye[; or] .
(iv) A severe burn injury (as
determined pursuant to regulations
prescribed by the Secretary).
(B) Any member [any member] of the Armed
Forces serving on active duty who is suffering
from any disability described in [subclause
(i), (ii), or (iii) of clause (A) of this
paragraph] clause (i), (ii), (iii), or (iv) of
subparagraph (A) if such disability is the
result of an injury incurred or disease
contracted in or aggravated by active military,
naval, or air service.
* * * * * * *
SEC. 3902. ASSISTANCE FOR PROVIDING AUTOMOBILE AND ADAPTIVE EQUIPMENT
(a) The Secretary, under regulations which the Secretary
shall prescribe, shall provide or assist in providing an
automobile or other conveyance to each eligible person by
paying the total purchase price of the automobile or other
conveyance (including all State, local, and other taxes) or
[$11,000] $22,500 (as adjusted from time to time under
subsection (e)), whichever is the lesser, to the seller from
whom the eligible person is purchasing under a sales agreement
between the seller and the eligible person.
* * * * * * *
(e)(1) Effective on October 1 of each year (beginning in
2011), the Secretary shall increase the dollar amount in effect
under subsection (a) to an amount equal to 80 percent of the
average retail cost of new automobiles for the preceding
calendar year.
(2) The Secretary shall establish the method for
determining the average retail cost of new automobiles for
purposes of this subsection. The Secretary may use data
developed in the private sector if the Secretary determines the
data is appropriate for purposes of this subsection.
* * * * * * *
CHAPTER 43--EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE
UNIFORMED SERVICES
Subchapter I--General
* * * * * * *
SEC. 4303. DEFINITIONS
For the purposes of this chapter--
(1) * * *
(2) The term ``benefit'', ``benefit of employment'',
or ``rights and benefits'' means any advantage, profit,
privilege, gain, status, account, or interest ([other
than] including wages or salary for work performed)
that accrues by reason of an employment contract or
agreement or an employer policy, plan, or practice and
includes rights and benefits under a pension plan, a
health plan, an employee stock ownership plan,
insurance coverage and awards, bonuses, severance pay,
supplemental unemployment benefits, vacations, and the
opportunity to select work hours or location of
employment.
* * * * * * *
(4)(A) * * *
* * * * * * *
(D)(i) Whether the term ``successor in interest''
applies with respect to an entity described in
subparagraph (A) for purposes of clause (iv) of such
subparagraph shall be determined on a case-by-case
basis using a multi-factor test that considers the
following factors:
(I) Substantial continuity of business
operations.
(II) Use of the same or similar facilities.
(III) Continuity of work force.
(IV) Similarity of jobs and working
conditions.
(V) Similarity of supervisory personnel.
(VI) Similarity of machinery, equipment, and
production methods.
(VII) Similarity of products or services.
(ii) The entity's lack of notice or awareness of a
potential or pending claim under this chapter at the
time of a merger, acquisition, or other form of
succession shall not be considered when applying the
multi-factor test under clause (i).
* * * * * * *
Subchapter III--Procedures for Assistance, Enforcement, and
Investigation
* * * * * * *
SEC. 4323. ENFORCEMENT OF RIGHTS WITH RESPECT TO A STATE OR PRIVATE
EMPLOYER
(a) * * *
(b) Jurisdiction.--(1) In the case of an action against a
State (as an employer) or a private employer commenced by the
United States, the district courts of the United States shall
have jurisdiction over the action.
[(2) In the case of an action against a State (as an
employer) by a person, the action may be brought in a State
court of competent jurisdiction in accordance with the laws of
the State.]
(2) In the case of an action against a State (as an
employer) by a person, the action may be brought in the
appropriate district court of the United States or State court
of competent jurisdiction.
* * * * * * *
(h) * * *
* * * * * * *
(i) Waiver of State Sovereign Immunity.--(1) A State's
receipt or use of Federal financial assistance for any program
or activity of a State shall constitute a waiver of sovereign
immunity, under the 11th amendment to the Constitution or
otherwise, to a suit brought by--
(A) a person who is or was an employee in that
program or activity for the rights or benefits
authorized the person by this chapter;
(B) a person applying to be such an employee in that
program or activity for the rights or benefits
authorized the person by this chapter; or
(C) a person seeking reemployment as an employee in
that program or activity for the rights or benefits
authorized the person by this chapter.
(2) In this subsection, the term ``program or activity''
has the meaning given that term in section 309 of the Age
Discrimination Act of 1975 (42 U.S.C. 6107).
(j) [(i)] Definition.--In this section, the term ``private
employer'' includes a political subdivision of a State.
* * * * * * *
SEC. 4324. ENFORCEMENT OF RIGHTS WITH RESPECT TO FEDERAL EXECUTIVE
AGENCIES
* * * * * * *
(b) * * *
(4) has received a notification of a decision from
the Special Counsel under subsection (a)(2)(B)
declining to initiate an action and represent the
person before the Merit Systems Protection Board.
* * * * * * *
PART IV--GENERAL ADMINISTRATIVE PROVISIONS
* * * * * * *
CHAPTER 51--CLAIMS, EFFECTIVE DATES, AND PAYMENTS
* * * * * * *
Subchapter II--Effective Dates
* * * * * * *
SEC. 5111. COMMENCEMENT OF PERIOD OF PAYMENT
(a) (1) Notwithstanding section 5110 of this title or any
other provision of law and except as provided [in subsection
(c) of this section] in paragraph (2) of this subsection and
subsection (c), payment of monetary benefits based on an award
or an increased award of compensation, dependency and indemnity
compensation, or pension may not be made to an individual for
any period before the first day of the calendar month following
the month in which the award or increased award became
effective as provided under section 5110 of this title or such
other provision of law.
(2)(A) In the case of a veteran who is retired or separated
from the active military, naval, or air service for a
catastrophic disability or disabilities, payment of monetary
benefits based on an award of compensation based on an original
claim shall be made as of the date on which such award becomes
effective as provided under section 5110 of this title or
another applicable provision of law.
(B) In this paragraph, the term ``catastrophic
disability'', with respect to a veteran, means a permanent,
severely disabling injury, disorder, or disease that
compromises the ability of the veteran to carry out the
activities of daily living to such a degree that the veteran
requires personal or mechanical assistance to leave home or
bed, or requires constant supervision to avoid physical harm to
self or others.
* * * * * * *
CHAPTER 53--SPECIAL PROVISIONS RELATING TO BENEFITS
* * * * * * *
SEC. 5305. WAIVER OF RETIRED PAY
Except as provided in [section 1414] sections 1212(d)(2)
and 1414 of title 10, any person who is receiving pay pursuant
to any provision of law providing retired or retirement pay to
persons in the Armed Forces, or as a commissioned officer of
the National Oceanic and Atmospheric Administration or of the
Public Health Service, and who would be eligible to receive
pension or compensation under the laws administered by the
Secretary if such person were not receiving such retired or
retirement pay, shall be entitled to receive such pension or
compensation upon the filing by such person with the department
by which such retired or retirement pay is paid of a waiver of
so much of such person's retired or retirement pay as is equal
in amount to such pension or compensation. To prevent
duplication of payments, the department with which any such
waiver is filed shall notify the Secretary of the receipt of
such waiver, the amount waived, and the effective date of the
reduction in retired or retirement pay.
* * * * * * *
CHAPTER 55--MINORS, INCOMPETENTS, AND OTHER WARDS
* * * * * * *
SEC. 5503. HOSPITALIZED VETERANS AND ESTATES OF INCOMPETENT
INSTITUTIONALIZED VETERANS
* * * * * * *
(c) Where any veteran in receipt of an aid and attendance
allowance described [in section 1114(r)] in subsection (r) or
(t) of section 1114 of this title is hospitalized at Government
expense, such allowance shall be discontinued from the first
day of the second calendar month which begins after the date of
the veteran's admission for such hospitalization for so long as
such hospitalization continues. Any discontinuance required by
administrative regulation, during hospitalization of a veteran
by the Department, of increased pension based on need of
regular aid and attendance or additional compensation based on
need of regular aid and attendance as described in subsection
(l) or (m) of section 1114 of this title, shall not be
effective earlier than the first day of the second calendar
month which begins after the date of the [veterans'] veteran's
admission for hospitalization. In case a veteran affected by
this subsection leaves a hospital against medical advice and is
thereafter admitted to hospitalization within six months from
the date of such departure, such allowance, increased pension,
or additional compensation, as the case may be, shall be
discontinued from the date of such readmission for so long as
such hospitalization continues.
(d)(1) * * *
* * * * * * *
(5) (A) The provisions of this subsection shall apply with
respect to a surviving spouse having no child in the same
manner as they apply to a veteran having neither spouse nor
child.
(B) The provisions of this subsection shall apply with
respect to a child entitled to pension under section 1542 of
this title in the same manner as they apply to a veteran having
neither spouse nor child.
(6) * * *
(7) This subsection expires on [September 30, 2011]
September 30, 2014.
* * * * * * *
------
CONGRESSIONAL ACCOUNTABILITY ACT OF 1995
(2 U.S.C. 1316(b))
TITLE 2--THE CONGRESS
* * * * * * *
CHAPTER 24--CONGRESSIONAL ACCOUNTABILITY
* * * * * * *
SUBCHAPTER II--Extension of Rights and Protections
PART A--Employment Discrimination, Family and Medical Leave, Fair Labor
Standards, Employee Polygraph Protection, Worker Adjustment and
Retraining, Employment and Reemployment of Veterans, and Intimidation
* * * * * * *
SEC. 1316. RIGHTS AND PROTECTIONS RELATING TO VETERANS' EMPLOYMENT AND
REEMPLOYMENT
(a) * * *
(b) Remedy.--The remedy for a violation of subsection (a)
shall be such remedy as would be appropriate if awarded [under
paragraphs (1), (2)(A), and (3) of section 4323(c) of title 38,
United States Code] under section 4323(d) of title 38, United
States Code.
* * * * * * *
------
VETERANS' HOUSING OPPORTUNITY AND BENEFITS IMPROVEMENT ACT OF 2006
(Public Law 109--233; 120 Stat. 414; 38 U.S.C. 1980A note)
* * * * * * *
TITLE V--TECHNICAL AMENDMENTS
SEC. 501. TECHNICAL AND CLARIFYING AMENDMENTS TO NEW TRAUMATIC INJURY
PROTECTION COVERAGE UNDER SERVICEMEMBERS' GROUP
LIFE INSURANCE
* * * * * * *
(b) Applicability to Qualifying Losses Incurred [in
Operation Enduring Freedom and Operation Iraqi Freedom] Before
Effective Date of New Program.--
(1) Eligibility.--A member of the uniformed services
who during the period beginning on October 7, 2001, and
ending at the close of November 30, 2005, sustains a
traumatic injury resulting in a qualifying loss is
eligible for coverage for that loss under section 1980A
of title 38, United States Code[, if, as determined by
the Secretary concerned, that loss was a direct result
of a traumatic injury incurred in the theater of
operations for Operation Enduring Freedom or Operation
Iraqi Freedom].
* * * * * * *
------
FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949
(41 U.S.C. 251 et seq.)
* * * * * * *
TITLE III--PROCUREMENT PROCEDURE
* * * * * * *
SEC. 316. MERIT-BASED AWARD OF GRANTS FOR RESEARCH AND DEVELOPMENT.
* * * * * * *
SEC. 318. NOTICE TO CONTRACTORS OF POTENTIAL OBLIGATIONS RELATING TO
EMPLOYMENT AND REEMPLOYMENT OF MEMBERS OF THE ARMED
FORCES.
Each contract for the procurement of property or services
that is entered into by the head of an executive agency shall
include a notice to the contractor that the contractor may have
obligations under chapter 43 of title 38, United States Code.
------
VETERANS PROGRAMS ENHANCEMENT ACT OF 1998
(Public Law 105-368; 112 Stat. 3321)
TITLE I--PROVISIONS RELATING TO VETERANS OF PERSIAN GULF WAR AND FUTURE
CONFLICTS
SEC. 101. AGREEMENT WITH NATIONAL ACADEMY OF SCIENCES REGARDING
EVALUATION OF HEALTH CONSEQUENCES OF SERVICE IN
SOUTHWEST ASIA DURING THE PERSIAN GULF WAR.
* * * * * * *
(j) Sunset.--This section shall cease to be effective [11
years after the last day of the fiscal year in which the
National Academy of Sciences enters into an agreement with the
Secretary under subsection (b)] on October 1, 2018.
* * * * * * *
------
PERSIAN GULF WAR VETERANS ACT OF 1998
(Public Law 105-277; 112 Stat. 2681-745; 38 U.S.C. 1117 note)
* * * * * * *
SEC. 1603. AGREEMENT WITH NATIONAL ACADEMY OF SCIENCES.
* * * * * * *
(j) Sunset. This section shall cease to be effective on
[October 1, 2010] October 1, 2015.
* * * * * * *
[SEC. 1604. REPEAL OF INCONSISTENT PROVISIONS OF LAW.
[In the event of the enactment, before, on, or after the
date of the enactment of this Act, of section 101 of the
Veterans Programs Enhancement Act of 1998, or any similar
provision of law enacted during the second session of the 105th
Congress requiring an agreement with the National Academy of
Sciences regarding an evaluation of health consequences of
service in Southwest Asia during the Persian Gulf War, such
section 101 (or other provision of law) shall be treated as if
never enacted, and shall have no force or effect.]