[Senate Hearing 109-715]
[From the U.S. Government Publishing Office]
S. Hrg. 109-715
BENEFITS LEGISLATIVE INITIATIVES CURRENTLY PENDING BEFORE THE U.S.
SENATE COMMITTEE ON VETERANS' AFFAIRS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JUNE 8, 2006
__________
Printed for the use of the Committee on Veterans' Affairs
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
______
U.S. GOVERNMENT PRINTING OFFICE
28-755 WASHINGTON : 2007
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
COMMITTEE ON VETERANS' AFFAIRS
Larry E. Craig, Idaho, Chairman
Arlen Specter, Pennsylvania Daniel K. Akaka, Hawaii, Ranking
Kay Bailey Hutchison, Texas Member
Lindsey O. Graham, South Carolina John D. Rockefeller IV, West
Richard M. Burr, North Carolina Virginia
John Ensign, Nevada James M. Jeffords, (I) Vermont
John Thune, South Dakota Patty Murray, Washington
Johnny Isakson, Georgia Barack Obama, Illinois
Ken Salazar, Colorado
Lupe Wissel, Majority Staff Director
Bill Brew, Minority Staff Director
C O N T E N T S
----------
June 8, 2006
SENATORS
Page
Craig, Hon. Larry E., Chairman, U.S. Senator from Idaho.......... 1
Akaka, Hon. Daniel K., Ranking Member, U.S. Senator from Hawaii,
prepared statement............................................. 3
Graham, Hon. Lindsey O., U.S. Senator from South Carolina........ 3
Isakson, Hon. Johnny, U.S. Senator from Georgia.................. 3
Burns, Hon. Conrad R., U.S. Senator from Montana................. 4
Prepared statement........................................... 6
Pryor, Hon. Mark, U.S. Senator from Arkansas..................... 7
Prepared statement........................................... 8
Letter, on behalf of 13 veteran and industry organizations in
support of S. 2416......................................... 9
Article, Easing Driver Shortage Programs' Aim Trucking
Industry
Turning to Sponsorships to Fill Growing Need, Arkansas
Democrat-Gazette........................................... 10
Salazar, Hon. Ken, U.S. Senator from Colorado.................... 11
Prepared statement........................................... 11
Murray, Hon. Patty, U.S. Senator from Washington................. 24
Thune, Hon. John, U.S. Senator from South Dakota................. 50
WITNESSES
Aument, Ronald, Deputy Under Secretary for Benefits, Department
of Veterans Affairs............................................ 12
Prepared statement........................................... 14
Response to written questions submitted by Hon. Larry E.
Craig...................................................... 19
Ivers, Hon. Donald L., Former Chief Judge, U.S. Court of Appeals
for Veterans Claims............................................ 27
Prepared statement........................................... 28
Letters to Chairman Craig by:
Hon. Donald L. Ivers..................................... 29
Frank Q. Nebeker......................................... 29
Kinderman, Quentin, Deputy Director, National Legislative
Service, Veterans of Foreign Wars of the United States......... 30
Prepared statement........................................... 33
Weidman, Richard, Director of Government Relations, Vietnam
Veterans of America............................................ 38
Prepared statement........................................... 41
Stichman, Barton F., Co-Director, National Veterans Legal
Services
Program........................................................ 46
Prepared statement........................................... 48
APPENDIX
Schumer, Hon. Charles E., U.S. Senator from New York, prepared
statement...................................................... 55
DeWine, Hon. Mike, U.S. Senator from Ohio, prepared statement.... 56
Gaytan, Peter S., Veterans Affairs and Rehabilitation Commission,
the American Legion, prepared statement........................ 57
Greineder, David G., Deputy National Legislative Director,
AMVETS, prepared statement..................................... 60
Letter, dated June 8, 2006, to Hon. Larry E. Craig........... 62
Kleine, Douglas M., Executive Director, National Association of
Housing Cooperatives, prepared statement....................... 62
Press release, National Association of Housing Cooperatives.. 63
Lee, Rose Elizabeth, Chair, Legislation Committee, Gold Star
Wives of America, Inc., prepared statement..................... 64
McKay, James C., Senior Counsel, Covington & Burling, Washington,
DC, prepared statement......................................... 65
Paralyzed Veterans of America, prepared statement................ 68
Sweeney, Donald, Legislative Director, National Association of
State Approving Agencies, prepared statement................... 70
Violante, Joseph A., National Legislative Director, Disabled
American Veterans, prepared statement.......................... 70
Robert V. Chisholm, Past President, National Organization of
Veterans' Advocates, letter to Hon. Larry E. Craig............. 74
Clahchischilliage, Sharon, Executive Director, Navajo Nation,
Washington Office, letter to Hon. Daniel K. Akaka.............. 75
BENEFITS LEGISLATIVE INITIATIVES CURRENTLY PENDING BEFORE THE U.S.
SENATE COMMITTEE ON VETERANS' AFFAIRS
----------
THURSDAY, JUNE 8, 2006
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in room
SR-418, Russell Senate Office Building, Hon. Larry E. Craig,
Chairman of the Committee, presiding.
Present: Senators Craig, Graham, Thune, Isakson, Murray,
and Salazar.
OPENING STATEMENT OF HON. LARRY E. CRAIG, CHAIRMAN,
U.S. SENATOR FROM IDAHO
Chairman Craig. Good morning, ladies and gentlemen. The
Committee on Veterans' Affairs will now come to order today.
The Committee will hear testimony on pending legislation
affecting veterans' benefits. The six bills on our agenda
address a wide array of issues, including housing,
compensation, educational benefits, veterans' cemeteries, and
representation.
At the outset, I would like to comment on two of those
bills that I have introduced. The first, S. 2562, which will
provide a cost of living adjustment to the rates of
compensation provided to over 2.8 million veterans and nearly
350,000 survivors. The end of the year adjustment is expected
to be at 2.2 percent, which would result in an estimated payout
of $530 million.
As you know, Congressional budget rules do not require an
offset in spending to pay for these increases, given the
importance of these annual adjustments in protecting against
the erosive effects of inflation.
The next bill I would like to comment on is S. 2694, the
Veterans' Choice of Representation Act. This bill would provide
veterans with the option, let me repeat, with the option of
hiring lawyers to help them navigate VA's administrative
process, a process that has become increasingly long and
complex in recent years. The law prohibiting veterans from
hiring lawyers flows from a Civil War era policy, let me repeat
that, a Civil War era policy intended to protect veterans from
unscrupulous lawyers.
This 150-year-old policy arose at a time, unlike today,
when attending law school was not required to become a lawyer,
and there was no effective professional oversight of lawyers.
Although I know that some will still warn that lawyers are not
to be trusted, I would like to ask them to consider the simple
question posited in a recent editorial--I know, Mark is one.
Thanks, Conrad.
[Laughter.]
Chairman Craig. We will not forgive him for that, either.
But this editorial put it this way, if America's soldiers
are mature and responsible enough to choose to risk their lives
for their country, should they not be considered competent to
hire a lawyer? To me, the obvious answer to that question is
yes, particularly for veterans of today's all-volunteer force.
The paternalistic law is completely outdated.
These highly trained, highly skilled veterans have the
ability, and should have the right, to decide for themselves
whether to hire a lawyer. Having said that, I want to be clear
that, although I believe veterans should have a choice for
representation, they should not be discouraged from using the
valuable free services provided by many of our Veterans Service
Organizations.
In fact, if quality, free services are available from VSOs,
I would expect that most veterans would conclude that it is a
better deal than paying an attorney, but I do not think we
should make the judgment for the veterans by limiting their
options. In recent months it has become abundantly clear that
many veterans and their survivors do want the option of hiring
an attorney.
A host of individuals and organizations have expressed
their support for changing the current policy, including the
Vietnam Veterans of America, the Wounded Warrior Project, the
Paralyzed Veterans of America, the Gold Star Wives of America,
Inc., the National Association of Letter Carriers, the American
GI Forum, judges from the Court of Appeals for Veterans Claims,
law professors and bar associations.
There also is bipartisan and bicameral support in the
Congress for changing this law. In addition to S. 2694, which
is cosponsored by Senators Graham, Hutchison, Jeffords,
Chambliss, and Murkowski, there are now two bills pending in
the House that would provide veterans with a choice of
representation. One was introduced by Congressman Lane Evans
and Congresswoman Shelley Berkley, and the other was just
recently introduced by Congressman Jeff Miller.
Even with the very broad spectrum of support, I know that
some have concerns about trusting veterans with a choice of
representation. In fact, you will hear today about VA's
concerns that, if veterans are given a choice, they may end up
wasting their money. You will hear about VA's concerns that
attorneys could change the nature of their bureaucracy.
We will discuss today these issues. I have serious
questions about whether those concerns are warranted because I
strongly believe in the principle of individual liberty and
personal responsibility. I cannot agree that abridging the
personal rights of all veterans is an acceptable means of
dealing with these concerns. Rather, I believe we should take
steps, as this bill would do, to minimize any potential
problems while ensuring that our Nation's veterans will have
the right to decide for themselves whether to hire lawyers.
This is a right that is not denied to individuals seeking any
other benefits from our Government.
And I could go on, but let me just simply say this, now
enemy combatants have the right to an attorney. And I would
suggest that our veterans should have the same right.
With that, let me turn to our colleagues who have joined us
for opening comments prior to turning to our first panel.
STATEMENT OF HON. LINDSEY O. GRAHAM,
U.S. SENATOR FROM SOUTH CAROLINA
Senator Graham. Mr. Chairman, I would just like to echo
your sentiment. I have joined with you on the bill to allow
veterans to have legal representation if they choose. Being a
lawyer, I understand that it is not the most popular profession
in the world until you need one.
And when you need one, you try to find the best one
available, and I am proud to have provided for what legal
services I have provided in the military. To be honest with
you, Mr. Chairman, in the Social Security Administration, there
is a non-adversarial aspect of it, but legal representation
there does help people. Our veteran community is getting
involved in a new system that is ever changing for the better
and I do not know if I understand it.
There are some people out there who will dedicate their
legal profession to understanding veterans benefits and rights,
and if a veteran would like to be represented, I think they
should be. When it comes to excessive fees, just like the
Social Security Administration, there is a procedure to deal
with that--and those lawyers who take advantage of veterans, I
hope they get disbarred.
If there is a lawyer willing to help a veteran and the
veteran needs the help, I hope we can allow that to happen,
too.
Thank you.
Chairman Craig. Senator Graham, thank you.
Mr. Isakson.
STATEMENT OF HON. JOHNNY ISAKSON,
U.S. SENATOR FROM GEORGIA
Senator Isakson. Mr. Chairman, I would like to echo the
words of Senator Graham and commend you on the legislation, Mr.
Chairman.
Chairman Craig. Thank you.
Let me say, before I turn to our first panel, Senator Akaka
regrets that he is unable to be here today. I believe he is on
the floor with a piece of legislation right now. So, I ask
unanimous consent that his opening statements appear in the
record at this point.
[The prepared statement of Senator Akaka follows:]
Prepared Statement of Hon. Daniel K. Akaka, Ranking Member,
U.S. Senator from Hawaii
Thank you, Chairman Craig. This legislative hearing was originally
scheduled for an earlier date, but was postponed so the Committee could
address the troubling revelation that there was a theft involving the
private data of millions of veterans. That hearing was very important
to our veterans. I look forward to working with the Chairman and others
as we continue to respond to that situation.
Mr. Chairman, we have a full schedule today, so I will take this
time to briefly discuss my legislation on the agenda. S. 2659, the
proposed Native American Veterans Cemetery Act of 2006, would provide
tribal organizations eligibility for Department of Veterans Affairs'
grants to establish veterans cemeteries on trust lands. Currently, VA's
authority to make grants for the establishment of veterans cemeteries
other than by VA itself is limited to grants to states. This precludes
making grants to tribal organizations.
Native American veterans have a long and proud history of military
service on behalf of this Nation. On a per capita basis, Native
Americans have the highest percentage of people serving in the United
States Armed Forces. After completion of their service, many Native
American veterans return to their communities on trust lands. Passage
of this legislation would provide the option of burial in a veterans
cemetery location convenient for their families and loved ones.
Throughout my time in Congress, I have fought for the rights of our
indigenous peoples. Recently, with the passage of the Veterans' Housing
Opportunity and Benefits Improvement Act of 2006, the Native American
Home Loan program was made permanent. I authored the legislation that
created the pilot program that granted Native American veterans living
on tribal lands access to VA home loans. I am thrilled that this
program is now permanent. I view the proposed Native American Veterans
Cemetery Act of 2006 as another step in helping native peoples and urge
my colleagues to support it.
I thank the witnesses from VA and other organizations for coming
today to share their views. Thank you, Mr. Chairman, and I look forward
to hearing the testimony before us today.
Chairman Craig. With that, let us turn to the first panel
this morning. Two of our colleagues are with us, Senator Burns
of Montana and Senator Pryor.
Let me turn to Conrad Burns, first, and then will turn to
Mark. Thank you.
Welcome before the Committee, Senator.
STATEMENT OF HON. CONRAD R. BURNS,
U.S. SENATOR FROM MONTANA
Senator Burns. Chairman Craig and Members of this
Committee, thank you very much for giving me the opportunity
this morning to come before you with a very important issue,
and that is the Veterans Employment and Training Act of 2006.
As you know, I have had the privilege of serving as a
United States Marine in the Far East and that service instilled
in me a great respect for the men and women who serve in our
military. The sacrifices of our men and women in uniform can
never be overstated, but particularly in these turbulent times.
Sadly, many of these individuals are faced with great
hardship when they leave the service. For too many young
servicemen and women, the transition to civilian life proves
extremely difficult, particular for veterans between the ages
of 18 and 24. I do not see how you can be a veteran at 18, but
I am trying to figure that out.
Veterans from the age of 20 to 24, though, is a very, very
sensitive age, an area where they are coming out of the
service. The unemployment rate currently stands at 10.2
percent. This is down slightly, but much higher than the
national average. And if you go down to the 18- to 19-year-
olds, it goes up to around 26 percent, nearly double the
unemployment rate of non-veterans in the same age group. Of
course, that is unacceptable to us.
To help rectify this situation, we introduced S. 2416, the
Veterans Employment and Training Act of 2006. Under the
Montgomery GI Bill, the Veterans' Administration currently
provides accelerated benefits to assist servicemen and women in
transitioning into a civilian job. Through this program, the VA
makes short-term, high cost training programs more attractive
to veterans by paying benefits in lump sums covering up to 60
percent of the cost of some of those educational programs.
However, this program is now only available to men and women
who seek training in high-tech programs.
I think you know that when we looked at our technology
schools and our vocational schools in each of our States we
find out that we should be training for the job market that is
there and readily available. And we have changed our vocational
schools and our technology schools to reflect that.
In order to provide this benefit to more of our men and
women of the Armed Forces, the VET Act will expand eligibility
for accelerated benefits to include industry sectors identified
by the Department of Labor as likely to add large numbers of
new jobs or require new job training skills in the coming
years. These sectors include construction, hospitality, retail,
financial services, energy, homeland security, health care,
and, of course, transportation. That is where we have our
biggest shortfall, in the transportation area.
A number of these sectors face critical shortages of
employees now or in the near future, and want to attract
veterans to their professions. For instance, in my State of
Montana, we are currently facing a shortage of trained
construction workers and, of all things, truck drivers.
Nationally, the truck driving industry needs an additional
20,000 drivers today and expects to face a driver shortage of
110,000 drivers by the year 2014.
The modest change that we are proposing today will help
provide needed workers to these and other industries. To give
you an idea on how this will benefit veterans, take for example
a truck driving training program at one of the schools in
Montana. This program, a standard for most driving programs,
lasts 4 to 5 weeks, and it costs $4,000. Unfortunately, many
veterans are unable to afford this training, even with the
$1,034 in GI Bill benefits that they may currently receive for
this training.
However, under the revised accelerated benefits program
called for in the VET Act, the same veteran would be eligible
for 60 percent, or $2,400 of the cost of the training. That is
the same we give for those going into the high-tech fields.
We have an obligation to make sure that these individuals
are not forgotten when they return from service. One step we
can take now is to ensure that those who serve have access to
every educational opportunity possible. By expanding
eligibility for accelerated GI benefits, we will give many of
these veterans a new opportunity to get training and find work
in some of the fastest growing sectors of our economy. This
will keep our country moving on the right track and open up
more opportunities for our men and women in uniform. We owe it
to those individuals to act quickly to provide them with this
expanded benefit.
And I just want to bring up something else, as far as these
kinds of training programs are concerned. In Billings, Montana,
we have three oil refineries. They looked at their human
resource list, and every one of those refineries was going to
lose half of their workforce in 5 years to retirement. Who do
we replace those folks with who are trained and ready to go in
and start to work in a refinery? That is a very, very sensitive
work. You turn a valve the wrong way and you have got big
problems. Safety is number one around a refinery, because you
are working with volatile materials.
So, we retooled our vocational school in Billings and we
built a model about the size of one of these tables, I guess,
of a refinery. We now offer a 2-year certificate program in the
operations of refineries for people and young men and women who
chose not to take a 4-year curriculum, but instead chose to
attend a school to train for some job in that sector. So, if
they have marginal grades, they get a 2-year certificate
degree, they walk out of there, and they walk in to a $40,000-
45,000 job just like that.
That is what we should be doing, training for the jobs that
we have in front of us. Automobile dealers tell us that they
cannot hire mechanics. I thought any farm kid who liked grease
under his thumb and got a crescent wrench, a set of box tins
and a screwdriver would go to work as a mechanic. Not true,
because now they have to have computer skills. When you pull
your car into a dealer to get it worked on, the first thing
they do is plug it into a computer. And sometimes it is all put
back together by a computer, reprogrammed and things like that.
Our workforce is changing out there for the ordinary,
everyday people who can make a very good living, support their
families, and be a vital part of our community, but they need
those skills to go into that sector. And this, I think--of our
men and women coming out of the service now--will give them an
opportunity to train for those jobs.
I appreciate the time the Committee has given us, and I
appreciate all the work that we have done on this. I also
appreciate your support. Thank you very much, Mr. Chairman.
[The prepared statement of Senator Burns follows:]
Prepared Statement of Hon. Conrad Burns, U.S. Senator from Montana
Chairman Craig, Ranking Member Akaka, Members of the Committee,
thank you for allowing me the opportunity to speak today about
legislation which is very important to me--the Veterans Employment and
Training Act of 2006.
As you know, I had the privilege of serving as a United States
Marine. That service instilled in me a great respect for the men and
women who serve in our military. The sacrifices made by our brave men
and women could never be overstated, particularly in these turbulent
times.
Sadly, many of these individuals are faced with great hardship when
they leave the service. For too many young servicemen and women, the
transition to civilian life proves extremely difficult, particularly
for veterans between the ages of 18 and 24. For Veterans age 20-24,
unemployment currently stands at 10.2 percent; this is down slightly,
but still higher than the unemployment rate for non-veterans in the
same age group. And for Veterans 18-19 it is a disturbing 26.4
percent--nearly double the unemployment rate of non-veterans in the
same age group. This is simply unacceptable!
To help rectify this situation, we introduced S. 2416, the Veterans
Employment and Training (VET) Act of 2006.
Under the Montgomery GI Bill, the Veterans' Administration
currently provides accelerated benefits to assist our servicemen and
women in transitioning to the civilian job market. Through this
program, the VA makes short-term, high-cost training programs more
attractive to veterans by paying benefits in a lump sum and by covering
up to 60 percent of the cost of some educational programs. However,
this program is now only available to men and women who seek training
in high-tech programs.
In order to provide this benefit to more of our brave men and women
in the Armed Forces, the VET Act will expand eligibility for
accelerated benefits to include industry sectors identified by the
Department of Labor as likely to add large numbers of new jobs or
require new job training skills in the coming years. These sectors
include construction, hospitality, retail, financial services, energy,
homeland security, health care, and transportation.
A number of these sectors face critical shortages of employees now
or in the near future and want to attract veterans to their
professions. For instance, in my State of Montana, we are currently
facing a shortage of trained construction workers and truck drivers.
And nationally, the trucking industry needs an additional 20,000
drivers today and expects to face a driver shortage of 110,000 drivers
by 2014. The modest change that we are proposing today will help to
provide needed workers to these and other industries.
To give you an idea how this will benefit veterans, take the
example of a truck driver training program at one of the schools in
Montana. This program, standard for most driver training programs,
lasts 4 to 5 weeks and costs $4,000. Unfortunately, many Veterans are
unable to afford this training, even with the $1,034 in GI Bill
benefits that they may currently receive for this training. However,
under the revised accelerated benefits program called for in the VET
Act, that same veteran would be eligible for 60 percent or $2,400 of
the costs of the training.
We have an obligation to make sure that these individuals are not
forgotten when they return from service. One step we can take now is to
ensure that those who serve have access to every educational
opportunity possible. By expanding eligibility for accelerated GI Bill
benefits, we will give many of these veterans a new opportunity to get
training and find work in some of the fastest growing sectors of our
economy.
This will keep our country moving on the right track and open up
more opportunities for our men and women in uniform.
We owe it to these brave individuals to act quickly to provide them
with this expanded benefit.
Thank you once again for providing me with this opportunity to
speak on this bill.
Chairman Craig. Senator, thank you very much.
Now, let us turn to Senator Mark Pryor of Arkansas. Mark,
welcome again before the Committee.
STATEMENT OF HON. MARK PRYOR,
U.S. SENATOR FROM ARKANSAS
Senator Pryor. Thank you, Mr. Chairman, and thank you for
your leadership on this. And also, I have a written statement,
for the record. Senator Burns did a very good job of laying out
the position, so I will not read the written statement.
Chairman Craig. Your full statement will become a part of
the record.
Senator Pryor. Thank you, Mr. Chairman. It also has a
couple of attachments. One is an attachment where 13
organizations support the legislation. The other is just a
newspaper story from my home State that lays out the problem
out there in the real world. So, I would love for that to be
included, as well.
Basically, what Senator Burns said is exactly right. And
that is that we have two problems here. One is, when you look
at our veterans, for veterans between 20 and 24 years of age,
there is a 15 percent unemployment rate. So, if you are a
veteran between 20 and 24, you have a 15 percent unemployment
rate. That is nearly double, obviously, what the national
average for non-veterans, et cetera, so that is a problem that
we should address.
Second, the Department of Labor has identified 14 different
industries that need workers. These include, again, 14 of them,
but some of them are transportation, construction, hospitality,
financial services, homeland security--these are needs that DOL
has identified exist in our economy. That is a problem.
We can address both problems and come up with a solution in
this one piece of legislation. Senator Burns did a very good
job of laying this out. He is exactly right. If you look at
just one of those sectors, trucking, right now there is a
shortage of about 20,000 drivers nationwide. That is a big
problem for the trucking industry. But when they look out in
the future in 2014, the DOL anticipates a shortage of about
110,000 drivers. Again, truck driving might be a great career
path for many of our veterans.
What we are trying to do is put the tools in place for them
to pursue that. Really this is a win-win situation. We are
helping our veterans, we are helping the U.S. economy, and we
are just doing, really, something that is common sense. This is
something we should try to do.
Mr. Chairman, with that, again, Senator Burns covered this
very, very well. I would appreciate the Committee's
consideration on this legislation.
Thank you.
[The prepared statement of Senator Pryor with attachments
follow:]
Prepared Statement of Hon. Mark Pryor, U.S. Senator from Arkansas
Chairman Craig, Senator Akaka, and Members of the Committee, I
would like to thank you for this opportunity to testify before you
today on legislation that is important to my constituents and young
veterans all across America.
Many of our soldiers, sailors, airmen, and Marines coming back from
Iraq and Afghanistan are having a difficult time finding work, Mr.
Chairman. I find this troubling, and I feel that we have a
responsibility to support our returning veterans who are looking for
work. Currently, unemployment among veterans between the ages of 20 and
24 is over 15 percent--nearly double the unemployment for non-veterans
in the same age group.
Similarly, many of the fastest growing sectors of our economy are
in vast need of an additional skilled labor source. The Department of
Labor has identified 14 industry sectors that are expected to
experience high growth over the next several years, including trucking,
construction, hospitality, and financial services. In fact, the
trucking industry, which is very important to my state, currently has a
driver shortage of 20,000 drivers. That shortage is expected to grow to
110,000 by 2014. I have a recent article from the Arkansas Democrat-
Gazette detailing the shortage the trucking industry is facing in
Arkansas. I would like to include it for the record.
We have industries in need of skilled employees and we have many
young men and women in need of good, high-paying jobs. Our legislation
is intended to help match those with needs through increased training
benefits in the Montgomery GI Bill. The GI Bill, established after
World War II, was a commitment that Congress made to veterans of that
war. We would like to extend that commitment to reflect the job
opportunities of our modern economy.
To accomplish this task, I joined with my colleague, Senator Burns,
in introducing S. 2416, the Veterans Employment and Training Act--the
VET Act. To date, we have a group of seven bipartisan sponsors.
The VET Act would make those sectors identified by the Department
of Labor as high growth eligible for accelerated payments under the GI
Bill by expanding the number of job training programs covered by the
Accelerated Payment Program.
Many of the training programs for employment in the identified
sectors are short but they are often more costly at the beginning. The
current structure of the GI Bill only provides veterans with the option
of a smaller monthly stipend. This arrangement works well for
traditional education institutions, such as two- and four-year
institutions. However, this same arrangement is not conducive to the
nature of our changing economy and the nature of high growth
occupations. A reconfigured and expanded Accelerated Payment Program
has the potential to pay big dividends for our veterans and our
economy. The Arkansas Employment Security Department estimates that
between one-third and one-half of all nonfarm jobs in Arkansas are in
sectors that would benefit from this legislation.
For the benefit of my colleagues, let me briefly review a few
reasons why I think this legislation is a wise policy decision.
First, I believe the VET Act will help veterans returning from Iraq
and the War on Terror. Accelerating GI Bill benefits for training in
high-growth occupations will help place veterans faster in good-paying
jobs.
Second, passing the VET Act will encourage returning veterans to
pursue careers in occupations that will contribute most to the U.S.
economy. All fourteen sectors identified by the Department of Labor are
expected to add large numbers of jobs to our economy over the next
several years. This legislation will assist in matching the available
workforce with our needs to keep our economy growing.
Third, the VET Act will help make short-term, high cost training
programs more affordable to veterans. GI Bill benefits are paid monthly
with a maximum monthly stipend of $1,000. Many of the training programs
for occupations identified by the Department of Labor as high-growth
are short term and high cost in nature. Truck driver training courses
typically last 4 to 6 weeks, but can cost up to $6,000. Without this
legislation, GI Bill benefits will only cover between $1,000 and $1,500
of the cost. Such a low offset discourages veterans from using GI Bill
benefits from these types of training programs. Accelerated benefits
would cover 60 percent of the cost, and benefits would be paid in a
lump sum.
Last, the VET Act will help place veterans in good-paying jobs at a
very low additional cost to the Federal Government. S. 2416 merely
enhances benefits already available--the total cost of the accelerated
benefits program for high-tech occupations is only $5.7 million. This
is a very small percentage of total benefits available to veterans
already. Any additional cost will be small and incremental compared to
the immediate payoff of reducing unemployment among young veterans and
enhancing employment opportunities in high-growth occupations.
To date, ten veterans and industry organizations have endorsed our
legislation, including the American Legion, AMVETS, American Trucking
Associations, Owner-Operator Independent Driver's Association,
Associated General Contractors, and the National Restaurant
Association, among others. I would like to include a letter of support
from some of these groups for the record.
Mr. Chairman, Senator Akaka and Members of the Committee, I believe
this is good legislation that will benefit our veterans and our
economy. I look forward to working with all of you to enact the VET Act
and stand ready to assist you in your mission of helping our veterans
succeed in civilian life.
______
March 28, 2006
Hon. Mark Pryor,
U.S. Senate,
Washington, DC.
Dear Senator Pryor: We, the undersigned organizations, are writing
to ask for your support of S. 2416, the Veterans Employment and
Training Act (VET Act), legislation sponsored by Senators Burns and
Pryor to enhance GI bill benefits.
The VET Act would assist our servicemen and women in transitioning
to the civilian job market by expanding eligibility for accelerated GI
bill benefit payments. This modest change to the GI bill program would
be especially helpful to veterans between the ages of 20 and 24, who
have an unemployment rate of over 15 percent--nearly double the rate of
non-veterans in the same age group.
The legislation would also help keep our economy growing. A number
of industries face critical shortages of employees now or in the near
future and are anxious to attract veterans to their professions. For
example, the skills and experience that men and women have gained
during their years in military service are highly appealing to trucking
companies, many of which are struggling to attract and retain quality
drivers.
Accelerated benefits, which have been available for high-tech
occupations since 2002, make short-term, high-cost training programs
more attractive to veterans by paying benefits in a lump sum per term,
and by covering a greater share (60 percent) of the cost of such
programs. The VET Act would expand eligibility for accelerated benefits
to include 14 industry sectors identified by the Department of Labor as
likely to add large numbers of new jobs or require new job training
skills in the coming years, including construction, hospitality,
financial services, energy, homeland security, health care, and
transportation.
We hope you will join us and Senators Burns and Prior in supporting
the Veterans Employment and Training Act. Our troops returning from the
war on terror deserve our support, and the VET Act will help veterans
advance their careers in the sectors of the economy that need them the
most.
American Association of Community Colleges
American Hotel and Lodging Association
American Trucking Associations
AMVETS
Arkansas Trucking Association
Associated General Contractors
Association of American Railroads
Montana Motor Carriers Association, Inc.
National Private Truck Council
National Ready Mixed Concrete Association
National Restaurant Association
Owner-Operator Independent Drivers Association
Truckload Carriers Association
______
[From the Arkansas Democrat-Gazette, Apr. 9, 2006]
Easing Driver Shortage Programs' Aim Trucking Industry Turning to
Sponsorships to Fill Growing Need
(By Laurie Whalen)
The trucking industry is counting on new driving school sponsorship
programs to alleviate its growing shortage of drivers.
Driver training can take as long as 16 weeks, and tuition can be as
much as $5,000. Many people have neither the free time nor the money to
participate.
That could change for many potential drivers because of initiatives
such as the ``Company Driver Tuition Finance'' program that was
announced March 23, with support from the American Trucking
Associations and the Truckload Carriers Association.
When drivers are sponsored by a trucking firm, they enter into a
financial arrangement in which the carrier and a commercial lender pay
the tuition at a driving school. Drivers typically sign a promissory
note and enter into a repayment agreement, usually with a condition of
a year's driving commitment.
The long-haul trucking industry estimates it needs 20,000 more
drivers. National projections for the next 8 years show the need
worsening to 111,000 drivers if current demographic trends continue and
the overall labor force grows at a slower pace.
A shortage of drivers could limit the availability of goods and
increase their price. Carriers can charge higher rates-per mile from
their shipper customers, who, in turn, can pass along increases to
consumer.
Dale Martin, director of the Arkansas Commercial Driver Training
Institute at Arkansas State University at Newport, predicts the driver
shortage will cause carrier sponsorships to become more common.
``With carrier sponsorship, if a driver fulfills the commitment,
it's a good deal, especially if you're broke,'' Martin said.
Only about 25 percent of the estimated 1,000 annual graduates
secure their own financing at the driver institute's 190-hour, 4-week
program. The rest have tuition paid by the carrier. Arkansas companies
P.A.M. Transportation Services Inc. in Tontitown, Willis Shaw Express
in Elm Springs and USA Truck Inc. in Van Buren are among those that
offer sponsorships.
The American Trucking Associations and the Truckload Carriers
Association also provide what they term as low-interest loans for needy
drivers who qualify for admission to a training school.
The effort is a good step in putting together a national program
for drivers, said Chris Burruss, president of the 800-member Truckload
Carriers Association in Alexandria, Va.
U.S. Sen. Mark Pryor, D-Ark., has pushed to include trucking as an
eligible profession for Veterans Affairs funding, covering as much as
60 percent of the cost to attend a program.
Pryor said in a March 15 statement that the Veterans Employment and
Training Act would benefit soldiers and employers alike. The act would
expand the occupations qualifying for funding and, according to Pryor,
help veterans find high-paying jobs and employers find qualified
employees.
The trucking industry tends to lose drivers to higher-paying jobs
such as those in construction.
Lane Kidd, president of the Arkansas Trucking Association,
characterized the proposed measure as a ``real world'' type of job
growth legislation. The legislation is pending in the House Committee
on Veterans Affairs.
Arkansas student drivers also get financial help through at least
two other Federal aid programs. State administrators of the Workforce
Investment and Trade Adjustment Assistance acts said a small percentage
of their money finances truck-driving programs.
The Freeway Program, a new private loan program of last resort for
qualifying drivers, hopes to capitalize on the shortage and carriers'
needs to replace an aging work force. The program targets potential
drivers who are regarded as a financial risk, but who meet other
criteria such as a clean driving record and drug test.
Perry Turnbull, a financial consultant and one of the Orem, Utah-
based program's founders, said the fledgling loan purchasing company
Educational Methods Inc., which administers the Freeway Program, will
financially benefit carriers and drivers.
The 10-month-old program, set up much like a carrier sponsorship,
assumes the term of the loan after driver training is completed. But
unlike sponsorship, if a driver breaks his promissory note commitment,
Educational Methods Inc. will attempt to collect on the loan.
Turnbull, who lives in Bentonville, said drivers benefit from
fixed-interest rates ranging from 6 percent to 12 percent, which he
said was low compared with other available rates. In March, the
business bought its first loan from a Utah-based carrier.
``You can't borrow any cheaper than from us,'' Turnbull said.
Chairman Craig. We thank you.
Senator Burns. I have something to add, Mr. Chairman.
Chairman Craig. Sure.
Senator Burns. I will tell you it is great to work with
Senator Pryor on this, as his State and all States, I think,
face this situation. So, we look forward in shepherding this
legislation through Congress. I certainly appreciate working
with Senator Pryor and what he brings to the table. He brings a
lot of knowledge and on-the-ground experience. I think that is
what it is going to take to get it done.
I thank the Committee.
Chairman Craig. We thank you both for being here this
morning to provide testimony to this legislation. I think you
clearly have pointed out one of the clear options and
flexibilities we need in the program for this changing
workforce, and we thank you for that.
Any questions of our colleagues?
If not, we thank you much, and we will excuse you.
We have been joined by Senator Salazar.
Do you have any opening comments this morning, Senator,
before we move to our next panel?
STATEMENT OF HON. KEN SALAZAR,
U.S. SENATOR FROM COLORADO
Senator Salazar. I am looking forward to the hearing and I
have a statement for the record that I will submit.
Chairman Craig. Your full statement will be part of the
record now.
[The prepared statement of Senator Salazar follows:]
Prepared Statement of Hon. Ken Salazar, U.S. Senator from Colorado
Thank you, Chairman Craig and Ranking Member Akaka, for holding
today's hearing on legislation regarding veterans' benefits.
As we work to provide our veterans with the services and support
they need, this hearing is a good reminder that veterans' needs do not
stop with access to high-quality, affordable healthcare. I'm looking
forward to examining the proposals before this Committee today as we
look to find ways to improve benefits for veterans in the critical
areas of education, pensions, job training, housing, memorials, and
access to adequate legal representation. For many of our Nation's
veterans--including those now returning from Iraq and Afghanistan--
veterans' benefit programs are the key to rebuilding a normal life once
they come home.
At last year's benefits hearing, this Committee considered a
legislative proposal I introduced--the Veterans Employment and
Transition Services Act--to deal with the need to improve employment
options for servicemembers leaving the military by allowing veterans
groups better access to servicemembers, eliminating the conflict of
interest between reenlistment recruiting and pre-separation counseling,
and encouraging participation in intensive Transition Assistance
Program workshops. I am proud to say that provisions of my bill were
recently included in the comprehensive veterans' benefits legislation
that recently passed the Senate--thanks to the hard work of so many of
my colleagues here--and I am hopeful that today's hearing can serve as
the starting point for further efforts to address important issues
related to VA's benefit programs.
Taking a look at the bigger picture, I would also like to note that
the lack of adequate funding for personnel has significantly reduced
the VBA's ability to provide benefits support and to process claims as
quickly as veterans deserve. As this Committee has heard time and time
again, shortfalls in the VA budget have led to personnel shortages and
huge backlogs in the processing of benefits claims. Until we fix these
funding issues, we cannot fully live up to our promises to provide our
Nation's veterans with the benefits they have earned in a timely
manner.
Again, I thank all of the panelists who are here today, as well as
my colleagues on both sides of the aisle who are working together to
make sure our Nation's veterans can take advantage of the benefits they
have earned. I look forward to joining you in this effort, and I am
glad to be a part of this Committee's push for real results. At a time
when Congress is struggling to convince the American people that it
really is committed to addressing real issues and resolving real
problems, this hearing is both reassuring and absolutely crucial.
Thank you.
Chairman Craig. Let us ask Ronald Aument, Deputy Under
Secretary for Benefits, Department of Veterans Affairs, to come
forward today. He is accompanied by John Thompson, Deputy
General Counsel, Department of Veterans Affairs.
Gentlemen, welcome before the Committee.
STATEMENT OF RONALD AUMENT, DEPUTY UNDER SECRETARY FOR
BENEFITS, DEPARTMENT OF VETERANS AFFAIRS
Mr. Aument. Mr. Chairman and Members of the Committee,
thank you for the opportunity to testify today on a number of
legislative items of great interest to veterans. I am joined at
the witness table by John Thompson, Deputy General Counsel.
With the Committee's permission, I will offer a summary
statement this morning and request that my written testimony be
submitted for the record.
Chairman Craig. Your full testimony will be a part of the
record. Thank you.
Mr. Aument. Thank you, sir. I will proceed by discussing
each of the bills in chronological order.
S. 2121, the Veterans Housing Fairness Act of 2005, would
authorize VA to guarantee loans for stock in certain
developments, structures, or projects of a cooperative housing
corporation. VA cannot support this bill because we do not
believe that VA participation in co-ops would be in the best
interest of the veteran or the Government as guarantor of the
loan.
Co-ops present significant risks to both the veteran and
the VA. The buyer of a co-op does not acquire an interest in
the real estate or obtain title to his or her dwelling unit. A
responsible co-op owner could lose his or her interest in the
co-op if the blanket mortgage for the entire property goes into
foreclosure.
Unlike other VA loans, there would be no lien on real
property or tangible personal property. In addition,
restrictions on sales imposed by some co-ops, which are not
permitted under current VA regulations for conventional or
condominium developments, are viewed as detrimental to the
interest of the veteran.
S. 2416, the Veterans Employment and Training Act of 2006,
would expand the programs of education for which accelerated
payment of educational assistance may be made under the Chapter
30 Montgomery GI Bill program. VA supports S. 2416, subject to
Congress' enactment of legislation offsetting the cost of the
increased benefits.
However, we believe there may be a more efficient way of
achieving this objective. To facilitate the implementation of
this legislation, it would be cleaner and more direct if the
bill simply stated that all high cost, short-term courses were
eligible for accelerated payment. As written, S. 2416 would
exclude those individuals who are enrolled in an associate's or
higher degree program, unless his or her program of education
leads to employment in a high-tech occupation.
We can see no sound public policy basis, from a veterans
perspective, for making this distinction.
S. 2562, the Veterans' Compensation Cost-of-Living
Adjustment Act of 2006, would authorize a cost-of-living
adjustment (COLA) in the rates of disability compensation and
dependency and indemnity compensation, effective December 1,
2006. We believe this COLA is necessary and appropriate to
protect the benefits of affected veterans and their survivors
from the eroding effects of inflation. These worthy
beneficiaries deserve no less.
S. 2659, the Native American Veterans Cemetery Act of 2006,
would authorize the Secretary of Veterans Affairs to make
grants to Native American tribal organizations to assist them
in establishing, expanding, or improving veterans cemeteries on
trust land in the same manner, and under the same conditions,
as grants to States are made under 38 U.S.C. Section 2408. We
strongly support enactment of this bill as a means of
accommodating the burial needs of Native American veterans.
S. 2694, the Veterans' Choice of Representation and
Benefits Enhancement Act of 2006, would eliminate the current
prohibition of charging fees for services of an agent or
attorney provided before the Board of Veterans' Appeals makes
its first final decision on the case. It would also authorize
VA to restrict the amount of fees agents or attorneys may
charge, and subject fee agreements between agents or attorneys
and claimants to review by the Secretary, such review to be
appealable to the Board.
S. 2694 would also authorize VA to regulate the
qualifications and standards of conduct applicable to agents
and attorneys, add three grounds to the list of grounds for
suspension or exclusion of agents or attorneys from further
practice before VA, subject Veteran Service Organization
representatives and individuals recognized for a particular
claim to suspension on the same grounds as applied to agents
and attorneys, and authorize VA to periodically collect
registration fees from agents and attorneys to offset the costs
of these regulatory activities.
Under S. 2694, attorney fees would consume significant
amounts of payments under the programs meant to benefit
veterans and we believe that Congress should not enact this
bill unless it becomes convinced that veterans would gain more
in terms of increased benefits than they would lose to their
attorneys. Available evidence shows that it is unlikely, hence
we cannot support the bill's enactment.
The expense of employing an attorney to obtain veterans
benefits would largely appear to be unwarranted. As recognized
by Congress, VSO representatives are a valued component of the
VA adjudication system, providing assistance and guidance to
claimants through the claims process without charge.
Additionally, existing empirical data does not indicate
that attorneys would provide service superior to that
represented by VSO representatives. These facts alone cause us
to doubt that participation by attorneys would gain claimants
more in increased benefits than it would cost them in fees.
VA assumes primary responsibility through statutory
provisions and administrative procedures for leading the
claimant through the administrative claims process. We are
concerned that enactment of this bill would impede the Nation's
paramount interest in promoting and maintaining an non-
adversarial adjudication process, as exemplified by the
Veterans Claims Assistance Act of 2000.
Introducing an attorney charged with a professional
obligation to represent a client zealously within the bounds of
the law would, in our view, inevitably make the process more
adversarial. The result would almost certainly be to increase
the time all veterans must wait for decisions in their claims.
Finally, we cannot support S. 2694 because it would require
creation of a substantial new bureaucracy to perform the
additional accreditation and oversight responsibilities. VA
would have to create procedures and standards for accrediting
attorneys and for reviewing fee agreements for services
performed at the regional offices, determining whether a fee
charged by an agent or an attorney is excessive or
unreasonable.
The additional time and substantial resources would be
better spent adjudicating the approximately 800,000 benefit
claims that VA receives annually. A better alternative would be
to have attorneys regulated by the States responsible for their
licenses than to create a new Federal office to monitor
attorney conduct.
S. 3363 would provide for accelerated payment for survivors
and benefits assistance for certain programs of education under
Chapter 35 of Title 38. VA will provide its comments and costs
on S. 3363 at a later time.
Chairman Craig. This concludes my statement, Mr. Chairman.
I would be happy to answer any questions that you or other
Members of the Committee may have.
[The prepared statement of Mr. Aument follows:]
Prepared Statement of Ronald Aument, Deputy Under Secretary for
Benefits, Department of Veterans Affairs
Mr. Chairman and Members of the Committee, thank you for the
opportunity to testify today on a number of legislative items of great
interest to veterans. I am joined at the witness table by John H.
Thompson, Deputy General Counsel.
s. 2121
S. 2121, the ``Veterans Housing Fairness Act of 2005,'' would
authorize VA to guarantee loans for stock in certain developments,
structures, or projects of a cooperative housing corporation (co-ops).
VA cannot support this bill because we do not believe that VA
participation in co-ops would be in the best interest of the veteran or
of the Government as guarantor of the loan. Under current law, a
veteran may purchase a conventional home, a condominium unit, or a
manufactured home and a manufactured home lot. In all cases except a
manufactured home, the veteran is purchasing real property. Although
the manufactured home is normally considered personal property, the
veteran also obtains title to the actual home he or she will be
occupying. In contrast, the buyer of a co-op does not acquire an
interest in real estate or obtain title to his or her dwelling unit.
Instead, the purchaser acquires personal property in the form of a
share of the cooperative's stock, coupled with the right to occupy a
particular apartment in the building. A buyer normally obtains a share
loan that finances the purchase of an ownership interest in the co-op.
This loan is evidenced by a promissory note and is secured by a pledge
of the stock, shares, membership certificate, or other contractual
agreement that evidences ownership in the corporation and by an
assignment of the proprietary lease or occupancy agreement. VA would be
guaranteeing this corporate share loan. Unlike other VA loans, there
would be no lien on real property or tangible personal property.
Cooperative housing projects are usually subject to blanket
mortgages. This is a matter of great concern because of the significant
risk to which the buyer, the loan holder, and VA are exposed. The buyer
of a co-op is responsible for the monthly payment on the share loan as
well as the assessments levied by the corporation, which can be
significant. The survival of the project may depend upon each member of
the co-op meeting his or her obligations. Failure to do that could lead
to foreclosure of the blanket mortgage on the entire building. Such
foreclosure would wipe out any interest individual co-op owners, even
owners who are timely in the payment of their share loans, may have in
the project since they have no interest in real property. It would also
leave the holder of the share loan without any security. This is what
principally sets co-ops apart from condominiums.
Many co-ops also retain a right of first refusal or a right by the
co-op board to approve or reject a prospective buyer. Rights of first
refusal are not permitted by VA regulation, 38 CFR Sec. 36.4350, and VA
does not participate in projects that have them. We believe that the
issue of right of first refusal alone would disqualify most projects
from VA eligibility.
We understand that some co-op projects impose other restrictions on
sales, such as imposing a fee when the owner sells his or her unit to
someone other than the corporation, or granting the exclusive right to
sell units to a particular real estate broker, often at a higher
commission. These and similar practices would be viewed as detrimental
to the interests of veterans and, therefore, not permitted under
current VA regulations for conventional or condominium developments.
These practices could also adversely affect the marketability of a
unit. If a veteran-borrower is experiencing financial difficulties and
cannot freely dispose of his or her unit at an advantageous price,
foreclosure with a resultant loss to VA is more likely.
We also understand that conventional lenders, as well as the
secondary mortgage market agencies, generally have additional
underwriting and project requirements for co-ops because of the
additional risks they present. In addition, valuation of these
properties would be very complicated because of the blanket mortgage.
Costs associated with this legislation would likely be
insignificant compared to the overall VA guaranteed loan portfolio.
s. 2416
S. 2416, the ``Veterans Employment and Training Act of 2006,''
would expand the programs of education for which accelerated payment of
educational assistance may be made under the chapter 30 Montgomery GI
Bill (MGIB) program. Specifically, this measure would permit
accelerated payment of the basic educational assistance allowance to
veterans pursuing an approved program of education (in addition to the
programs now authorized such payment) lasting less than 2 years and
leading to employment in a sector of the economy that is projected to
experience substantial job growth, positively affects the growth of
another sector of the economy, or consists of existing or emerging
businesses that are being changed by technology and innovation and
require new skills for workers, as determined by the Department of
Labor (DOL).
Under current law, only an MGIB participant pursuing high cost
courses leading to employment in a high technology occupation in a high
technology industry has the option of receiving an accelerated benefit
payment. This optional lump-sum accelerated benefit payment may cover
up to 60 percent of the cost of such a course, provided the pro-rated
course costs exceed 200 percent of the applicable monthly MGIB rate.
The lump-sum payment is deducted from the veteran's MGIB entitlement
balance in the same manner as if paid on a monthly basis and may not
exceed that balance.
In addition, S. 2416 specifically states that, for purposes of
accelerated payment of educational assistance, the term ``program of
education'' would include such a program pursued at a tribally
controlled college or university (as defined in the Tribally Controlled
College or University Assistance Act of 1978).
VA supports S. 2416, subject to Congress' enactment of legislation
offsetting the cost of the increased benefits. However, as discussed
below, we believe there may be a more efficient way of achieving its
objective.
We note that implementation would be challenging for VA. The DOL
employment projections change every 2 years. In addition, depending on
the definition of ``sector,'' it is possible that almost all programs
would lead to employment in one sector of the economy that would affect
at least one other sector positively. It would be cleaner and more
direct if the bill simply stated that all high-cost short-term courses
were eligible for accelerated payment. Second, S. 2416 would exclude
from the proposed expansion of accelerated payment eligibility those
individuals who are enrolled in an associate's or higher degree
program. Thus, such an individual only could receive an accelerated
payment if his or her program of education leads to employment in a
high technology occupation in a high technology industry (as determined
by VA). We can see no sound public policy basis for making this
distinction.
Concerning the bill's express provision for accelerated payments
under chapter 30 to eligible veterans pursuing a program of education
at a tribally controlled college or university, VA has no objection. We
note, however, that VA currently considers such programs to be
``programs of education'' for MGIB purposes, and we are not aware of
any situations pertaining to servicemembers or veterans attending
tribally controlled colleges or universities that adversely affect
their eligibility for accelerated benefit payments.
VA estimates S. 2416, if enacted, would cost $11.5 million during
fiscal year 2007 and approximately $121.6 million over the period
fiscal years 2007-2016. The estimates for the years following fiscal
year 2007 would need to be reassessed annually due to DOL initiative
changes.
s. 2562
S. 2562, the ``Veterans' Compensation Cost-of-Living Adjustment Act
of 2006,'' would authorize a cost-of-living adjustment (COLA) in the
rates of disability compensation and dependency and indemnity
compensation (DIC). This bill would direct the Secretary of Veterans
Affairs to increase administratively the rates of compensation for
service-disabled veterans and of DIC for the survivors of veterans
whose deaths are service related, effective December 1, 2006.
Consistent with the President's fiscal year 2007 budget request, the
rate of increase would be the same as the COLA that will be provided
under current law to veterans' pension and Social Security recipients,
which is currently estimated to be 2.6 percent. We believe this COLA is
necessary and appropriate to protect the benefits of affected veterans
and their survivors from the eroding effects of inflation. These worthy
beneficiaries deserve no less.
We estimate that enactment of this bill would cost $590.3 million
during fiscal year 2007, $3.7 billion over the 5-year period fiscal
year 2007 through fiscal year 2011, and $8.2 billion over the 10-year
period fiscal year 2007 through fiscal year 2016. However, the cost is
already assumed in the budget baseline, and, therefore, enactment of
this provision would not result in any additional cost.
s. 2659
S. 2659, the ``Native American Veterans Cemetery Act of 2006,''
would authorize the Secretary of Veterans Affairs to make grants to
Native American tribal organizations to assist them in establishing,
expanding, or improving veterans' cemeteries on trust lands in the same
manner and under the same conditions as grants to states are made under
38 U.S.C. 2408. We strongly support enactment of this bill.
The cemetery grants program has proven to be an effective way of
making the option of veterans cemetery burial available in locations
not conveniently served by our national cemeteries. S. 2659 would
create another means of accommodating the burial needs of Native
American veterans who wish to be buried in tribal lands.
s. 2694
S. 2694, the ``Veterans' Choice of Representation Act of 2006,''
would eliminate the current prohibition on the charging of fees for
services of an agent or attorney provided before the Board of Veterans'
Appeals (Board) makes its first final decision in the case. It would
also authorize VA to restrict the amount of fees agents or attorneys
may charge and subject fee agreements between agents or attorneys and
claimants to review by the Secretary, such review to be appealable to
the Board. In addition, it would eliminate fee matters as grounds for
criminal penalties under 38 U.S.C. 5905.
S. 2694 would also authorize VA to regulate the qualifications and
standards of conduct applicable to agents and attorneys, add three
grounds to the list of grounds for suspension or exclusion of agents or
attorneys from further practice before VA, subject VSO representatives
and individuals recognized for a particular claim to suspension on the
same grounds as apply to agents and attorneys, and authorize VA to
periodically collect registration fees from agents and attorneys to
offset the cost of these regulatory activities.
We understand, and in fact agree with, the argument that veterans
are as capable as anyone of deciding whether to employ attorneys on
their behalves. However, that is not the issue. The Government has an
obligation to ensure that veterans derive maximum value from taxpayer-
supported VA programs. This Committee expressed its concern in 1988
when it reported out a bill (S. 11, 100th Cong.) that would have
retained the prior $10 limitation on fees for claims resolved before or
in the first Board decision, that any changes relating to attorneys'
fees ``be made carefully so as not to induce unnecessary retention of
attorneys by VA claimants.'' Under S. 2694, attorney fees would consume
significant amounts of payments under programs meant to benefit
veterans, and Congress should not enact this bill unless it becomes
convinced veterans would gain more in terms of increased benefits than
they would lose to their attorneys. Available evidence shows that is
unlikely, hence we cannot support the bill's enactment.
Throughout the years, Congress has recognized, correctly, that
integration of VSO representatives into the process of developing and
deciding claims is one of the most valuable features of the VA
adjudication system. These representatives are available to guide
through the claims process all claimants who seek their assistance,
without charge. VSO representatives are well-versed in veterans
benefits law as a result of the training they receive and therefore are
well-equipped to successfully assist claimants throughout the
administrative processing of their claims. Further, VSOs must certify
to VA that their representatives are fully qualified to represent
claimants. These facts alone cause us to doubt that participation by
attorneys would gain claimants more in increased benefits than it would
cost them in fees.
Moreover, what empirical data exist do not indicate attorneys would
provide service superior to that rendered by VSO representatives. For
example, in fiscal year 2005, 7.5 percent of appellants before the
Board of Veterans' Appeals were represented by attorneys, and
approximately 80 percent were represented by VSOs. Approximately the
same percentage of claims was granted in matters appealed to the Board
whether a claimant was represented by a VSO representative or was
represented by an attorney. In fiscal year 2005, the Board granted one
or more of the benefits sought in 21.3 percent of the appeals in which
a claimant was represented by an attorney. The Board granted one or
more of the benefits sought in 22.3 percent of the cases in which a
claimant was represented by a VSO.
The expense of employing an attorney to obtain veterans benefits
would appear to be largely unwarranted. For example, many claims are
granted immediately by VA based on a presumption of service connection
or incurrence of an injury or disease during service. VA currently has
presumptions of service connection for several different kinds of
service and many diseases. For example, a Vietnam veteran is entitled
to a presumption of service connection if he or she develops diabetes
mellitus (Type 2). Giving VA an opportunity to decide such a claim
without attorney involvement may well save a veteran money. In
addition, claimants do not appeal to the Board in about 90 percent of
claims decided by VA regional offices, suggesting a high level of
satisfaction with the regional offices' decisions in their cases.
Paying an attorney to assist in presenting these claims would seem to
be a waste of claimants' financial resources.
Also, as this Committee recognized in 1988 when it reported out S.
11, there is ``no compelling justification'' for hiring an attorney
prior to that point. The Supreme Court recognized in Walters v.
National Ass'n of Radiation Survivors that, ``[a]s might be expected in
a system which processes such a large number of claims each year, the
process prescribed by Congress for obtaining disability benefits does
not contemplate the adversary mode of dispute resolution.'' Rather, the
Supreme Court said, ``The process is designed to function throughout
with a high degree of informality and solicitude for the claimant.''
All a claimant need do is file a claim, and VA will notify the
claimant of the information and evidence necessary to substantiate the
claim, assist the claimant in obtaining relevant Government and private
records, provide a medical examination or obtain a medical opinion when
necessary to decide a compensation claim, and make an initial decision
on the claim. If a claim is denied, all a claimant need do to initiate
an appeal to the Board is to write VA expressing dissatisfaction or
disagreement with the decision and a desire to contest the result. The
VA agency that made the original decision on the claim will develop or
review the claim in a final attempt to resolve the disagreement and
issue a statement of the case if the disagreement is not resolved. VA
assumes primary responsibility for leading a claimant through the
administrative claims process, making the expenditure of a claimant's
limited financial resources on an attorney unnecessary. Furthermore, we
are concerned that enactment of this bill would impede the Government's
paramount interest in promoting and maintaining a non-adversarial
adjudicative process, as exemplified by the Veterans Claims Assistance
Act of 2000 requiring VA to notify a claimant of the information and
evidence necessary to substantiate a claim and to assist a claimant in
obtaining such evidence. This statute was designed to facilitate
beneficial interaction between claimants and VA during the initial
adjudication process. S. 2694, by permitting claimants to employ paid
attorneys before issuance of the first final Board decision, would be
incongruent with the beneficent VA system that Congress has nurtured
over the decades.
Also, attorney-represented claimants would lose certain benefits of
the current non-adversarial system. For example, the Court of Appeals
for the Federal Circuit recently held in Andrews v. Nicholson that VA
must sympathetically read all pro se pleadings, including a pro se
motion alleging clear and unmistakable error (CUE) in a VA decision.
However, the court stated in Andrews and in Johnston v. Nicholson that
VA is not obligated to sympathetically read pleadings filed by counsel,
and the failure to raise an issue in a CUE motion filed by counsel
before the Board is fatal to subsequently raising the issue before the
Court of Appeals for Veterans Claims.
S. 2694 would attempt to maintain the non-adversarial nature of the
process by authorizing VA to suspend claim representatives who fail to
conduct themselves ``with due regard for the non-adversarial nature
of'' VA proceedings. However, a requirement for non-adversarial conduct
by an attorney appears inconsistent with an attorney's professional
responsibility to ``represent a client zealously within the bounds of
the law.'' Model Code Of Prof'l Responsibility Canon 7 (1983). ``While
serving as advocate, a lawyer should resolve in favor of his client
doubts as to the bounds of the law'' and may urge any permissible
construction of the law favorable to his client. Model Code Of Prof'l
Responsibility EC7-3 and 7-4 (1983). An attorney who ``appear[s] before
an administrative agency, regardless of the nature of the proceeding it
is conducting, has the continuing duty to advance the cause of his
client within the bounds of the law.'' Model Code Of Prof'l
Responsibility EC7-15. Introducing an attorney charged with such
professional obligations into the non-adversarial claims process from
its initial stages would, in our view, inevitably make the process more
adversarial, which we believe would harm the interests of VA claimants.
Further, if S. 2694 were enacted, VA would likely have to hire
attorneys to work in its Regional Offices to respond to the legal
pleadings filed by attorneys in support of their clients' claims.
However unintentional it would be, we predict the process would
inevitably become more formal and brief driven, to the point claimants
may feel they must hire attorneys to establish entitlement to their
benefits. The result would almost certainly be to increase the time all
veterans must wait for decisions in their claims.
Finally, we cannot support S. 2694 because it would require
creation of a substantial new bureaucracy to perform the additional
accreditation and oversight responsibilities. Currently, an attorney in
good standing with the bar of any state may represent a claimant before
VA if the attorney states in a signed writing on his or her letterhead
that he or she is authorized to represent the claimant. If S. 2694 were
enacted, VA would have to create procedures and standards for
accrediting attorneys and for reviewing fee agreements for services
performed at the ROs to determine whether a fee charged by an agent or
attorney is ``excessive or unreasonable.'' The additional time and
substantial resources that would be required to carry out the
accreditation process and review fee agreements for work performed
before the ROs would, in our view, be better spent adjudicating the
approximately 800,000 benefit claims that VA receives annually.
Moreover, attorneys are licensed by the various states, which are
responsible for regulating their conduct and disciplining them if they
overreach with respect to fees charged. If attorneys are permitted to
practice before the Department and charge fees for their services, it
would be far better to have them regulated by the states responsible
for their licenses than to create a new Federal office to monitor
attorney conduct.
s. 3363
S. 3363 would provide for accelerated payment of survivors' and
dependents' educational assistance for certain programs of education
under chapter 35 of title 38, United States Code.
VA will provide its comments and costs on S. 3363 at a later time.
That concludes my statement, Mr. Chairman. I would be happy now to
entertain any questions you or the other Members of the Committee may
have.
______
Response to Written Questions Submitted by Hon. Larry E. Craig to
Ronald Aument
Question 1. In addition to giving veterans the right to hire
attorneys, S. 2694 would give the Department of Veterans Affairs (VA)
authority to require attorneys to have minimum levels of experience and
specialized training; to require attorneys to follow standards of
conduct specified by VA; to set restrictions on the amount of fees that
attorneys may charge; to suspend any representative from practicing
before VA who fails to comply with any conditions specified by the
Secretary; and to reduce any attorney fee that is excessive or
unreasonable. Would those additional authorities allow VA to prevent
the potential problems you mentioned in your testimony? If not, what
authorities would VA need?
Answer. The additional authorities listed in Question 1, all of
which concern the accreditation and oversight of attorneys, do not
address the concerns expressed in the Department of Veterans Affairs'
(VA) hearing statement. VA has indicated that it opposes S. 2694
because attorney fees would needlessly deplete claimants' benefits or
financial resources, not because attorneys generally lack the requisite
character and competence to represent veterans. Under S. 2694, VA would
be authorized to prevent attorneys from charging unreasonable fees.
However, even in the case of reasonable fees, the claimant's benefits
or financial resources would be diminished by the amount of the fees,
and available data indicates that it is unlikely that claimants would
gain more in terms of increased benefits than they would lose in
payment of fees to attorneys.
Further, VA has indicated that it opposes S. 2694 because
introduction of attorneys into VA adjudication proceedings would
undermine the current non-adversarial nature of the system. The bill
would allow claimants to pay attorneys for their representational
services during proceedings before the Department, but would require
non-adversarial conduct by attorneys in VA proceedings. We explained in
our hearing statement that attorneys are ethically bound to represent
their clients ``zealously within the bounds of the law.'' Model Code Of
Prof'l Responsibility Canon 7 (1983). Introducing an attorney charged
with such professional obligations into the non-adversarial claims
process from its initial stages would, in our view, inevitably make the
process more adversarial, which we believe would harm the interests of
VA claimants. Further, if S. 2694 were enacted, VA would likely have to
hire attorneys to work in its regional offices (ROs) to respond to the
legal pleadings filed by attorneys in support of their clients' claims.
However unintentional it would be, we predict the process would
inevitably become more formal and brief driven, to the point claimants
may feel they must hire attorneys to establish entitlement to their
benefits. The result would almost certainly be to increase the time all
veterans must wait for decisions in their claims. These problems would
not be alleviated by additional regulatory authority.
VA has also indicated that it opposes the provisions of the bill
that would require VA regulation of attorney qualifications. Currently,
an attorney in good standing with the bar of any state may represent a
claimant before VA if the attorney states in a signed writing on his or
her letterhead that he or she is authorized to represent the claimant.
If S. 2694 were enacted, VA would have to create procedures and
standards for accrediting attorneys and for reviewing fee agreements
for services performed at ROs to determine whether a fee charged by an
agent or attorney is ``excessive or unreasonable.'' The additional time
and substantial resources that would be required to carry out the
accreditation process and review fee agreements for work performed
before the ROs would, in our view, be better spent adjudicating the
approximately 800,000 benefit claims that VA receives annually.
Moreover, attorneys are licensed by the various states, which are
responsible for regulating their conduct and disciplining them if they
overreach with respect to fees charged. If attorneys are permitted to
practice before the Department and charge fees for their services, it
would be far better to have them regulated by the states responsible
for their licenses than to create a new Federal office to monitor
attorney conduct. VA opposes imposing this task on VA because it would
necessitate creation of a substantial new bureaucracy to perform the
additional accreditation and oversight responsibilities.
Provision of additional regulatory authority would not address
these concerns. Thus, the only suggestion that VA can offer to avoid
the problems that we believe would be associated with enactment of S.
2694 with regard to regulation of attorneys is to delete the attorney-
regulation provisions in the bill.
Question 2. One provision of S. 2694 would allow VA to suspend
attorneys from practicing before VA if they fail to show ``due regard
for the non-adversarial nature of the system.'' This provision was
intended to give VA redress against an attorney who attempts to use
aggressive litigation techniques to overwhelm or confuse regional
office adjudicators. If the current language does not accomplish that
objective, what language would?
Answer. As explained in our response to Question 1, attorneys are
ethically bound to represent their clients ``zealously within the
bounds of the law.'' Model Code Of Prof'l Responsibility Canon 7
(1983). Introducing an attorney charged with such professional
obligations into the non-adversarial claims process from its initial
stages would, in our view, inevitably make the process more
adversarial, which we believe would harm the interests of VA claimants.
The result would almost certainly be to increase the time all veterans
must wait for decisions in their claims. We do not believe that the
attorney-regulation provisions of the bill will protect the non-
adversarial nature of the VA system and suggest that those provisions
be deleted.
Question 3. As drafted, S. 2694 would give VA a 6-month window to
promulgate any necessary regulations to implement the legislation. If
this bill is enacted substantially in its current form, would 6 months
be sufficient time for VA to promulgate any necessary regulations? If
not, what would you estimate to be an appropriate amount of time?
Answer. If S. 2694 were revised to delete the attorney-regulation
provisions, we believe it would be possible for VA to promulgate
implementing regulations within 6 months.
Question 4. If S. 2694 were to become law, it would allow veterans
to hire attorneys with regard to any claims filed 6 months or more
after enactment. This delayed and staggered effective date was intended
to allow a deliberate and gradual implementation of this policy. Yet,
some have recommended that the prohibition on attorneys be lifted on
the bill's day of enactment for all pending and future claims. If this
bill were to be enacted into law, how would you recommend structuring
the effective date?
Answer. A delayed effective date would be necessary if Congress
enacts S. 2694 as currently drafted, as lengthy rulemaking proceedings
would be needed to implement the legislation. Regulations would need to
be in place to implement the bill's requirements for VA recognition of
attorneys, regulation of fees, and collection of registration fees.
Chairman Craig. Ron, thank you again for being with us. I
must tell you, I find your testimony in relation to S. 2694
interesting. I guess that is one way of saying it.
In this country, I think we are proud to refer to this as
the land of the free. Would you not agree that personal freedom
should at least be one of the factors, if not the most
important factor, in considering whether the current law should
be changed?
Mr. Aument. We certainly have no opposition to this
legislation on any philosophical grounds whatsoever, Mr.
Chairman. Our position is more of an empirical one. As we said
before, the available data suggests today that claimants,
veterans represented by attorneys, do not fare any better than
claimants that are represented by the Veterans Service
Organizations at the initial claim level.
Therefore, we do not see that there is going to be any
benefit to veterans, but certainly there are going to be
expenses.
Chairman Craig. If I correctly understand your testimony,
the Administration's position is that no veteran should have
the option of hiring an attorney because you think the expense
of employing an attorney would appear to be largely
unwarranted.
Mr. Aument. That is correct, sir.
Chairman Craig. How is it possible for you to draw that
conclusion without knowing how complicated a particular
veteran's case may be, without knowing what type and what
amount of benefits the veteran eventually would win, without
knowing the veteran's financial situation, and without knowing
how much the attorney would charge?
Mr. Aument. Sir, we can only look at the data that we have
available today. And today, of course, attorneys can represent
veterans both at a regional and appellate levels, only they are
subject to the existing statutory fee restrictions.
There is a fairly busy attorney practice----
Senator Isakson. Mr. Chairman, what is that fee? I hate to
interrupt.
Chairman Craig. I do not know.
Mr. Aument. It is $10.
Mr. Thompson. No. It is no longer $10. No fee.
Chairman Craig. There is no fee requirement now, is there?
Mr. Thompson. No fee is permitted at the administrative
stage.
Chairman Craig. Thank you.
Mr. Aument. I stand corrected on that, sir. But, again, the
empirical evidence at the Board of Veterans' Appeals level
showed that veterans represented by attorneys fare no better
than veterans represented by Veterans Service Organizations.
Similarly, at the VBA level, we find the same results.
Chairman Craig. Given these variables, wouldn't it be
better to allow each individual veteran to decide, based on the
circumstances of his or her case, whether hiring an attorney
would be appropriate?
Mr. Aument. I will repeat, sir, from a philosophical
ground, we have no opposition whatsoever. Our main concern is
for the benefits of the veterans and the issue of unintended
consequences.
Chairman Craig. Phenomenal parental attitude, is it not?
Mr. Aument. That is----
Chairman Craig. Given your concession that veterans are
indeed capable of deciding whether to hire attorneys, I am
perplexed at your position that we nevertheless should not
allow veterans to make these decisions because they might end
up wasting financial resources.
Is that testimony meant to suggest that veterans are not
capable of making wise decisions in hiring attorneys?
Mr. Aument. Certainly not, sir.
In no way, shape, or form, would I ever want to imply that.
As I said before, from a conceptual level, we have no
opposition to this. One of our main concerns is the issue of
unintended consequences. When you have an entire system that
has been constructed around the philosophy of a non-adversarial
system.
It is already taking us, in our view, too long to process
the claims that we receive today with the growing backlog. We
are very concerned that with the insertion of this new
phenomena into the system, it is going to only worsen.
Chairman Craig. I will conclude this first round of
questioning because I think there is more to be brought out
here. In a non-adversarial environment that was once relatively
simple, we now have a phenomenally complicated process to work
our way through. That complication in itself becomes
adversarial in many instances.
With that, let me turn to our colleagues. I see Senator
Thune has joined us. I will turn to him in a moment.
Let me turn to Senator Graham first. Lindsey.
Senator Graham. Mr. Chairman, I find the Administration's
position on this is breathtakingly bad. You are telling every
veteran in the country you have looked at their needs and you
have decided they do not need a lawyer because, at the end, it
is not worth it for them. Is that right?
Mr. Aument. In part, Senator----
Senator Graham. You put our democratic friends to shame, in
terms of what they would like to do for the country. I mean, I
am sitting here, and this Republican Administration is telling
every veteran in the land we have done an economic analysis of
the legal right you may have, and we have decided you do not
need. Other than that, I have got no problem with your
position.
[Laughter.]
Senator Graham. Now, Social Security, is there an economic
benefit to having legal representation to get your Social
Security benefits?
Mr. Aument. I am not an expert on Social Security, sir.
Senator Graham. I think we should be as equally protective
of the Social Security to the disabled population. I would hope
the Administration would look at the Social Security system and
see whether or not legal representation benefits the people who
are applying and that have been denied claims.
The bottom line is, Mr. Chairman, you are right. The VSO is
out there--God bless you. You are doing a great job. You do it
for free and I appreciate you helping our veterans. Sometimes
these cases get to be complex. They are very complex.
I would just like to reiterate that if there is a willing
client and willing lawyer to have a relationship formed to help
that veteran and the fees will be looked at by the Veterans'
Administration, just like they are at the Social Security
Administration. We are going to regulate who can do this, so
that people do not get taken advantage of.
I think in today's world, 2006, with a bunch of people
coming back from Iraq and Afghanistan with the benefits
changing everyday, if you can understand that you are better
than I am, Ron, I cannot understand it all. The idea that a
lawyer could be helpful should be interjected into this system
and we will regulate how that happens. But I just find it
incredibly misguided to say that the executive branch of our
Government is going to make that decision for every veteran in
the country who may need some help beyond what the VSOs can
provide.
I know it works in Social Security. I can assure you,
having been a lawyer, that there are many cases where the legal
representation of that Social Security beneficiary made all the
difference in the world. And I am totally confident it would
make all the difference in the world to veterans out there who
are lost in a bureaucracy of well-meaning people. But it is a
bureaucracy that is getting more complex by the day because the
benefit packages are getting more complex by the day.
I see some veterans shaking their heads. I hope we can give
you the right, if you choose to exercise it, to get a lawyer to
go in there and fight for you. Thank you, Mr. Chairman.
Chairman Craig. Thank you, Senator.
Senator Isakson.
Senator Isakson. Currently a veteran cannot bring a lawyer
at any phase of an issue before the VA?
Mr. Aument. They cannot pay a lawyer a fee. Until the
veteran has received his first decision of denial at the
appellate level with the Board of Veterans' Appeals.
Senator Isakson. If that is the case, how can you say based
on your experience, that they would not gain any benefit? I
mean, if they are not allowed to, then you do not have any
experience where they have engaged a lawyer to help them.
Mr. Aument. We do, sir. Because there are many veterans
that are represented by attorneys on a pro bono basis, we do
have that empirical data, both at the VBA and the Board of
Veterans' Appeals level.
Senator Isakson. I will yield to Senator Graham for a
second.
Senator Graham. The only time you are allowed legal
representation is once you have been denied your initial claim,
is that correct?
Mr. Aument. On a fee basis.
Senator Graham. Right. Basically, not being able to hire a
lawyer, you have got a de facto bar, because the lawyer cannot
get compensated for their time.
At the appeals level, can you submit new matters?
Mr. Aument. Yes.
Senator Graham. You can?
Mr. Aument. At the appeals level, you say, can new evidence
be introduced?
Senator Graham. Yes.
Mr. Aument. It can be introduced anywhere in the process.
Senator Graham. Is it an adversarial situation at the
appeals level?
Mr. Aument. I would say no, it is not.
Senator Graham. By the time you have been denied, your
initial denial had without representation.
Mr. Aument. Not necessarily.
Senator Graham. You cannot pay a lawyer. Unless every
lawyer in the country wants to do it for free.
Mr. Aument. That does not mean that they are unrepresented.
They may have been represented by a VSO or by a pro bono
attorney.
Senator Graham. I do not mean to take your time, but the
rules right now that you are not going--lawyers have to make a
living like everybody else. If you cannot hire a lawyer at the
initial stage, once you lose the case, it is very hard to
change the outcome.
In effect, what you are doing is you are letting a lawyer
come in at a time when a veteran is at his weakest, not at his
strongest. I think that is equally bad.
Chairman Craig. Senator Isakson.
Senator Isakson. I reclaim my time.
First of all, I am not a lawyer.
Secondly, I am like most Americans--everybody hates lawyers
but loves their lawyers.
Senator Graham. Right.
Senator Isakson. I mean, that is kind of like Congress.
Everybody hates Congress but loves their Congressman. And I
think----
Chairman Craig. At least we hope the latter is true.
[Laughter.]
Senator Isakson [continuing.] That we hope the latter is
true. That is right.
But I think that is, although humorous, also pretty much
fair. In this situation where you have a right, or believe you
have a right or a benefit to say that you do not have a right
to representation until some stage down the process, to me,
just does not seem right.
I have great regard for the VSOs and the services they
provide and I have read some of the testimony in here where
they have expressed some opposition, Mr. Chairman. But in
analyzing it, as one who is not an attorney and does not have a
dog in the fight economically, I would guess you would say,
looking at the benefit, it would seem only right to me that a
veteran have the option to have that.
I do not think you can say evidence proves they would not
gain any benefit if, in fact, that evidence now is tangential
at best. Certainly not with the practice of choice being a
reality.
With that, I will yield back the balance of my time.
Chairman Craig. Thank you, Senator. We have been joined by
Senator Patty Murray.
Senator Murray, do you have any opening statement and/or
questions of this panel?
STATEMENT OF HON. PATTY MURRAY,
U.S. SENATOR FROM WASHINGTON
Senator Murray. I just have a couple of comments. I know we
are going to have a vote here in a minute. Let me just thank
you for having this hearing. I know Senator Akaka was not able
to come.
Chairman Craig. Yes.
Senator Murray. He is on the floor. I just want to mention
his important piece of legislation, the Native American
Veterans Cemetery Act of 2006, and I really appreciate his
leadership on that and I commend him for working on that.
I just want to say that I am really disappointed that the
Committee is not going to bring S. 2147. That is a bill that
will help our veterans get treatment for Multiple Sclerosis.
The bill would eliminate the arbitrary 7-year presumptive
period for veterans diagnosed with MS.
As many of our colleagues know, a lot of our servicemen and
women who served, especially in the Gulf War, are being
diagnosed with MS. It is a very difficult disease to diagnose.
I know this because my father had MS and was a veteran. It is a
disease that you do not necessarily diagnose correctly within
the first 7 years. We have this arbitrary decision today that
if you have not been diagnosed by 7 years, you arbitrarily do
not get benefits. Because of the difficulty of diagnosing this
disease, I would really hope, Mr. Chairman, that we could move
on that piece of legislation. I hope we can work on that in the
future.
And, while I have a moment, I just also want to mention
that, like everyone in this room, I hope we can really focus in
this Committee on some of the things we need to do for our
veterans. Mr. Chairman, you worked with us last year, and I
know you care deeply about this. You have provided the
leadership, but I am, again, really concerned that we are not
going to have the resources that we need for our veterans.
I talked to many of our Iraq veterans who come home and
cannot find a job and are having a hard time transitioning back
to civilian life. Many of them are having to wait a year or
even 18 months to get the benefits that they need or to get the
health care that they are seeking. I think we have a real
challenge out there that we need to address.
I just listened to the exchange about the Chairman's bill
and making sure veterans have access to legal counsel and not
being able to do it because we do not have the resources. All
of this, I think, points to some serious concerns that we have
got to have a realistic assessment on. In fact, in March,
before the Military Construction Veterans Appropriation
Committee, the VA told us that they are seeing 38 percent more
Iraqi War veterans than they budgeted for. And in fiscal year
2006, the VA expected to provide medical care to 110,000, but
that number is now estimated to be closer to 170,000.
I hope that we can really take a good look at these numbers
and assess where we are. I know that we are hearing, even from
the VA Under Secretary for Health Policy Coordination, that
waiting lists render mental health and substance abuse care
virtually impossible across our country.
Mr. Chairman, it just all adds up to my continual concern
that we have asked these men and women to serve overseas, and
yet when they come home they are facing really a difficult time
getting in and getting care, getting their benefits and
transitioning back to the world. I know you know this, but I
hope that we can focus on that.
Finally, let me just mention, now learning that the VA data
theft that occurred May 5th, more than a month ago, now--and
details are still trickling out that 2.2 million
servicemembers, including Guard and Reservists also lost their
ID. That is going to have a financial impact on the VA as they
notify these veterans.
We have got to do this right. We have got to make sure that
they are notified, that they get the help and support they need
to make sure that their ID is not misused, or, if it is, that
they get taken care of quickly.
It is a responsibility we now incur because it was our VA
that lost the IDs, and we know that is going to cost something.
We have got to make sure that we pay that, but we do not want
to take it out of the health care or the access for our current
veterans.
It is a challenge in front of us and I hope that we can
spend some time dealing with that. Thank you, Mr. Chairman.
Chairman Craig. Senator, I appreciate your sensitivity to
these issues. With your help, we are going to continue to be
monitoring all of this very, very closely so that, certainly as
it relates to the latter portion of your statement, that any of
those new costs and additional costs to protect our veterans
and their IDs and their financial wholeness are not going to
come out of health care. Period. End of statement. That just
will not happen. We will not allow that to happen. And it is my
clear understanding that neither will this Administration or
the VA.
If it is going to take additional resources, then that is
going to be our job to get them.
Senator Murray. If I could just ask, Mr. Chairman, do we
have any assessment from the VA on when they will provide us an
estimate on the cost of dealing with this?
Chairman Craig. I am dialoguing with the Secretary, now. I
anticipate that we will have the estimate probably before the
Committee meets again, within a couple of weeks--to see where
they are and what the costs are going to be, and how they are
reaching out and will continue to reach out to veterans that
may have been affected by this. We do not know that, yet. But
certainly that liability and responsibility is there. We will
stay very current on it.
Senator Murray. Thank you very much.
Chairman Craig. Thank you very much.
Ron, in your testimony, you suggest that veterans should
not be permitted to hire attorneys to navigate the VA system.
Several years ago, an Under Secretary for Benefits testified
that the system is the most complex disability claims system in
the Federal Government and opined that the process veterans
must follow is complicated. And in testimony last year, VA's
current Under Secretary for Benefits said that it has become an
increasingly complex system.
Also, in the VA's 2007 budget submission--VA repeatedly
stressed how complex the system had become. Can you clarify
whether you are suggesting the system is not complex?
Mr. Aument. I certainly can, sir. Indeed, I take no issue
with those statements. It is a complicated system, but our
concern is not to make it more complicated than it is.
Chairman Craig. You are suggesting that a veteran's right
to hire an attorney would make it more complicated?
Mr. Aument. I am suggesting, sir, that the current nature
of the process was designed totally to be a non-adversarial
process. We believe that inevitably the introduction of routine
attorney representation at the original claim level is likely
to make it more complicated.
Mr. Thompson. If I could interject here.
Chairman Craig. Please.
Mr. Thompson. Zealous lawyering is, by definition,
contentious. And contentiousness leads to adversarial
relationships and you do not have to take VA's word for that.
Chief Justice Rehnquist in 1988--if you permit me to quote just
four sentences from a 1988 Supreme Court decision authored by
the Chief Justice.
He said that ``even apart from the frustration of
Congress's principal goal of wanting the veteran to get the
entirety of the award, the destruction of the fee limitation
would bid fair to complicate a proceeding which Congress wished
to keep as simple as possible. It is scarcely open to doubt
that if claimants were permitted to retain compensated
attorneys the day might come when it could be said that an
attorney might indeed be necessary to present a claim properly
in a system rendered more adversary and more complex by the
very presence of lawyer representation.
It is only a small step beyond that to the situation in
which the claimant, who has a factually simple and obviously
deserving claim, may nonetheless feel impelled to retain an
attorney, simply because so many other claimants retain
attorneys. This additional complexity will undoubtedly engender
greater administrative costs with the end result being that
less Government money reaches the intended beneficiaries.''
We think it really would lead inexorably to a more
complicated and more adversarial system.
Chairman Craig. We could go on. Your position has been made
very, very clear. And I think you're finding that not only do a
substantial number of people disagree, but this Committee
disagrees with you. And we will see if we can work our way
through this.
I find it interesting that until recently not a single law
school in the country included a course in veterans law in its
curriculum. With the current restrictions on receiving any
compensation at all for helping veterans navigate the VA
system, few attorneys, estimated at less than 200, have made
veterans law a principal area of practice.
Is it not entirely possible that if attorneys are exposed
to this area of law during law school and have the benefit that
the VSO representatives now enjoy of being able to earn a
living helping veterans navigate the VA system, they too could
be included as providing a valuable service to veterans?
Mr. Thompson. We do not believe there is any doubt that
lawyers who become expert in this practice could lend help to a
claimant, but the VSOs are themselves very experienced and are
expert in providing this service. They do it now for free. So,
the question really becomes whether you want benefits
appropriated for veterans to compensate them for their
injuries--you want a portion of those benefits to be diverted
to the pockets of attorneys.
Chairman Craig. We will leave it at that. Gentlemen, thank
you very much for your testimony on this and other pieces of
legislation. We will work with you as it relates to educational
benefits. You made some suggestions and we will see if those
can be worked out, because I think both Senators pointed out
the obvious, the changing educational environment and the need
to keep the GI Bill tuned to that.
Thank you very much.
Now let us call our third panel. We are inviting the
Honorable Donald Ivers, former Chief Judge of the United States
Court of Appeals for Veterans Claims; Quentin Kinderman, Deputy
Director, National Legislative Services, Veterans of Foreign
Wars of the United States; Richard Weidman, Director of
Government Relations, Vietnam Veterans of America; and Bart
Stichman, Co-Director, National Veterans Legal Services
Program.
We will get you all settled in and Judge Ivers, we will
start with you. Thank you for being with us today.
STATEMENT OF HON. DONALD L. IVERS, FORMER CHIEF JUDGE, U.S.
COURT OF APPEALS FOR VETERANS CLAIMS
Judge Ivers. Thank you, Mr. Chairman, Members of the
Committee. I want to thank you for this opportunity to appear
here and testify regarding S. 2694, the Veterans Choice of
Representation Act of 2006.
I also want to thank the Committee staff, especially Amanda
Meredith and Brian Bainbridge for their courtesies in preparing
for this testimony today.
I want to say to the Committee that I am testifying here at
the invitation of the Committee as a former judge, and I am not
representing the Court as it is currently constituted.
Chairman Craig. Thank you for making that clarification for
the record.
Judge Ivers. This Act, which grants veterans the right to
retain counsel at the initial stages of the claims process is
but another step in the continuing, evolving process of
judicial review. That process began in 1988 with the passage of
the Veterans' Judicial Review Act.
In my opinion, the time has come for this next step. The
U.S. Court of Appeals for Veterans Claims, as the Committee
well knows, has long been on record in support of a veteran's
right to retain counsel at the initial stages of the process.
The first Chief Judge of the Court, the Honorable Frank Nebeker
was to testify before this Committee in May, but is now out of
the country. I am here in his stead and ask that his letter of
May 10, 2006, and mine of June 6, be submitted in their
entirety for the record.
Both of those letters are brief, concise and self-
explanatory. In fact, I will conclude my brief testimony with
that reference.
[The prepared statement of Judge Ivers with attached
letters follow:]
Prepared Statement of Donald L. Ivers, Former Chief Judge,
U.S. Court of Appeals for Veterans Claims
Thank you for the invitation to testify before the Committee on
June 8, 2006, and to address S. 2694, the ``Veterans' Choice of
Representation Act of 2006.''
In his May 10, 2006, letter to you, Frank Nebeker, the first Chief
Judge of the U.S. Court of Appeals for Veterans Claims, who was
initially asked to testify, set forth his views regarding S. 2694. I
have read that letter and I am in complete agreement with Judge
Nebeker's views. In order to minimize redundancy, I ask that Judge
Nebeker's letter be made available along with mine at the hearing.
The Committee is probably aware that the Court has long been on
record as supporting the availability of attorney representation at the
initial stages of the claims process. Freedom to seek counsel of one's
choice has long been a hallmark of this Nation's system of justice.
That those who have given much in defense of that system are denied
that freedom in pursuing claims arising out of their service is, at
best, highly contradictory.
As Frank Nebeker points out in his letter, attorney discipline is
powerful and active in every jurisdiction. That should relieve the
Department of much of the burden of regulating the qualification and
actions of those attorneys retained by veterans. Furthermore, attorneys
are expected and required to follow appropriate ethical codes and to
assure the effectiveness and viability of any system in which they
provide representation, either adversarial or paternal.
My personal position on this issue is not one that I take lightly
or without awareness that I have taken a different position in years
past. My position, is, however, tempered by my service on the Court and
the opportunity to observe the process from both within and without, so
to speak. It is, if anything, stronger for that opportunity.
I join with Judge Nebeker in commending this effort to provide
veterans the freedom to enter into a willing attorney-client
relationship at the initial stages of the benefits claims process. I
also join in his observation that a slow integration of attorney
representation would give rise to invidious discrimination against
those already in the system who might wish to retain counsel.
______
Hon. Larry E. Craig,
Chairman, Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: Thank you for the invitation to testify before
the Committee on June 8, 2006, and to address S. 2694, the ``Veterans'
Choice of Representation Act of 2006.''
In his May 10, 2006, letter to you, Frank Nebeker, the first Chief
Judge of the U.S. Court of Appeals for Veterans Claims, who was
initially asked to testify, set forth his views regarding S. 2694. I
have read that letter and I am in complete agreement with Judge
Nebeker's views. In order to minimize redundancy, I ask that Judge
Nebeker's letter be made available along with mine at the hearing.
The Committee is probably aware that the Court has long been on
record as supporting the availability of attorney representation at the
initial stages of the claims process. Freedom to seek counsel of one's
choice has long been a hallmark of this Nation's system of justice.
That those who have given much in defense of that system are denied
that freedom in pursuing claims arising out of their service is, at
best, highly contradictory.
As Frank Nebeker points out in his letter, attorney discipline is
powerful and active in every jurisdiction. That should relieve the
Department of much of the burden of regulating the qualification and
actions of those attorneys retained by veterans. Furthermore, attorneys
are expected and required to follow appropriate ethical codes and to
assure the effectiveness and viability of any system in which they
provide representation, either adversarial or paternal.
My personal position on this issue is not one that I take lightly
or without awareness that I have taken a different position in years
past. My position, is, however, tempered by my service on the Court and
the opportunity to observe the process from both within and without, so
to speak. It is, if anything, stronger for that opportunity.
I join with Judge Nebeker in commending this effort to provide
veterans the freedom to enter into a willing attorney-client
relationship at the initial stages of the benefits claims process. I
also join in his observation that a slow integration of attorney
representation would give rise to invidious discrimination against
those already in the system who might wish to retain counsel.
Sincerely,
Donald L. Ivers.
______
May 10, 2006
Hon. Larry E. Craig,
Chairman, Veterans' Affairs Committee,
Hart Senate Office Building,
Washington, DC.
Dear Mr. Chairman: Thank you for the invitation to express my views
on S. 2694. As you know, I was the first Chief Judge of the Veterans'
Court. It soon became clear to me and my colleagues that the paternal
approach of effectively preventing lawyer representation in the
benefits process was severely outmoded. Thus, I compliment the sponsors
of S. 2694 for recognizing that veterans, like everyone else, should be
at liberty to seek counsel in the free market. Indeed, the fear that
once existed that veterans needed protection from predatory lawyers no
longer exists. Every jurisdiction in this country has very powerful and
active disciplinary entities to police their bars under quite detailed
and strong codes of professional conduct. I can speak from my
experience on the District of Columbia Court of Appeals since 1969.
Today the Court has a very substantial portion of its docket dealing
with lawyer discipline--much of it in reciprocal discipline from all
state courts and many Federal courts. Thus, burdening the Secretary
with lawyer qualification, regulation, and discipline should, in my
view, be kept at a minimum in light of extant bar disciplinary systems.
It may be anticipated that some resistance to this change from a
once well intentioned limitation on the ability to retain counsel will
develop. To the extent such resistance is motivated by a ``turf''
interest in keeping lawyers from invading the province of non-lawyer
veteran service officers, it should be paid no heed. The benefits
process has become so complex and protracted that the need for counsel
is manifest where it was not before. To the extent that that resistance
is motivated by concern for maintaining the non-adversarial nature of
veterans' benefits process, I suggest once a claim has been denied and
the veteran wishes to appeal, the process inescapably becomes
adversarial. The need for filing a ``notice of disagreement,'' by its
terms, connotes the commencement of an adversarial process from the
veteran's perspective. The fact that the duty to assist and the
evidentiary equipoise doctrine remain viable does not alter the reality
of the veteran's situation and his or her perception that it is now
``Veteran v. VA.''
Moreover, the proceedings before the Court of Appeals for Veterans
Claims have been recognized as adversarial from 1989, the inception of
the Court. That fact has not negated the non-adversarial nature of the
process at VA. Indeed, with counsel representing the appellant veteran,
it has always been possible to ensure that the duty to assist and the
evidentiary equipoise doctrine remain the rule. The presence of counsel
for the claimant does not alter the paternal nature of the process, nor
would it from the initial claim level and beyond. In fact, counsel can
assure the viability of that process from the very beginning.
Some might say that with counsel present the claimant is ``ready to
fight,'' but that view misperceives the role of counsel particularly in
a non-adversarial process. Counsel is there to ensure the nature of the
process is preserved as well as to ensure from the beginning that
errors threatening that process do not occur.
I commend the effort to treat veterans as equals of all citizens in
their right to seek a willing attorney and client relationship at the
initial stage of the benefits process. But I have considerable doubt
that slow integration of lawyer representation only in the initial
application stage is necessary and reasonable since those already in
the system would be invidiously discriminated against by being unable
to retain counsel. There will hardly be a landslide of lawyers
appearing at subsequent stages prior to a final BVA decision. At least
there is no evidence to support a favorable reaction to such an in
terrorem argument.
Sincerely,
Frank Q. Nebeker.
Chairman Craig. Judge, thank you.
Judge Ivers. Again, I want to thank you for the opportunity
to testify, and I will be glad to respond to any questions you
might have.
Chairman Craig. Thank you very much. Those two letters will
become a part of the record.
We have had a vote start, but I think we can still get
through some testimony before that, and then I will recess, run
and vote, and return very quickly.
Quentin, we will continue with your testimony.
STATEMENT OF QUENTIN KINDERMAN, DEPUTY DIRECTOR, NATIONAL
LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED
STATES
Mr. Kinderman. Thank you, Mr. Chairman. First, I would like
to thank you for coming over last night to the House Office
Building and for your inspiring words of tribute to your friend
and ours, Lane Evans.
Chairman Craig. Thank you for hosting that. It was very
appropriate.
Mr. Kinderman. Mr. Chairman and Members of the Committee.
VFW appreciates very much the opportunity to present our views
on legislation here, especially the bill that you have
sponsored, and which seems to be the focus of interest.
I would like to go through the bills, but probably end with
that one.
Chairman Craig. OK.
Mr. Kinderman. Because I think that one will consume the
most time.
With regard to S. 2121, the Veterans Housing Fairness Act,
which extends VA loans to cooperative residential units, we
favor that legislation and we expect that, since the rest of
the housing industry has figured out ways to finance co-ops, we
think the VA could probably sort that out, as well. We have
great faith in them.
Regarding S. 2416, The Veterans Employment and Training
Act, which would expand accelerated payment for courses of
instruction in high-tech and other high demand fields, we
support that as we also support S. 3363, by Senator DeWine, who
would provide similar benefits for Chapter 35 survivors and
dependents.
We do have some reservations about, essentially, paying out
large sums of money for short-term courses. We would suggest to
you that you continue to have strong oversight and demand that
the VA, in administering these bills, are very careful about
it. Some of these schools come and go and we want to protect
the veterans interests, as well as their long-term careers.
With regard to the Cemetery Bill for Native Americans, we
also favor that. We also favor its House companion bill.
With regard to the Cost-of-Living Increase Bill, we
appreciate your interest in maintaining the integrity of the
veterans compensation program and the rates. We do not favor
what some veterans organizations have talked about, which would
be indexing it once and for all. We would prefer, I think, to
have the opportunity to discuss it with you in this forum every
year, which has been a strong tradition.
We do have some reservations about the rate structures as
they exist today. And we make reference to that in our
statement and we can provide more information for the record if
you would like to see that. But essentially this chart shows
the rate structure as it exists today. I apologize for the
colors. They are probably a little bit inappropriate, but, sir,
it is rates and not States.
The red ones are the actual rates that the veterans
receive. The blue ones are what they would be if they were, in
fact, proportional to the 100 percent rate. I do not think too
many people realize that the 90 percent rate actually pays 60
percent of the total rate, and so on. Eighty percent is a
little over 50 percent and as you get down to the bottom, they
are about half of what you would have expected.
We think that particularly up in here, in the upper reaches
of the rates, it plays havoc with incentives and the other
aspects of the program. We just want to bring that to your
attention.
Chairman Craig. We will take a look at that.
Mr. Kinderman. I would be glad to provide that for you.
Chairman Craig. Thank you.
Mr. Kinderman. We realize that there is a commission
considering the veterans program, as we speak, and that at the
time the commission submits its report that this will probably
be an issue, but we wanted to kind of give you a heads up as to
what we are thinking on that.
Chairman Craig. OK.
Mr. Kinderman. But we do appreciate the COLA. We would like
to see you round up the numbers instead of down, but that is a
minor point.
Chairman Craig. OK.
Mr. Kinderman. Which brings us of course to the Veterans
Choice of Representation Act. We are bound in the VFW by a
resolution to oppose the practice of attorneys for pay at the
regional office. About half of our testimony goes to that
issue. In essence, I think we can really state five reasons.
Just very briefly.
We do not believe that lawyers are a necessary expense at
the initial claim level. If there is going to be an appeal, the
money that veterans would pay lawyers is probably better spent
in that appeal. Otherwise, we do not see that is necessary.
To paraphrase a famous movie, VA cannot handle lawyers. A
lot of what has been called complexity here, we see a little
differently. We see it as an administrative system that is in
desperate trouble. We see big backlogs. We see 15 percent error
rate. We see somewhat chaotic leadership from time to time and
we see major crises, as we had in the last 2 weeks, which will
have significant effect on that.
A good lawyer will pursue every avenue, alternative
evidence, treatment and exams outside VA, he will claim every
possible condition. Much effort will be expended by the veteran
and the VA, generally, probably for the same result as would
happen were he represented by a veterans organization at no
cost. We think the incentives that an attorney will have, in
terms of maximizing his fee, will be prevailing rather than the
altruistic desire to serve veterans.
With regard to the types of claims, we think lawyers will,
at least initially, pick claims that will be profitable. We do
not think that they are going to get involved in claims that
are questionable or too complex that require enormous amounts
of investment before they reach any kind of resolution.
We also have some very serious reservations about the
provisions of the bill that would require the VA General
Counsel to police non-adversarial behavior and frivolous
claims. Some of the things that have become mainstream claims
in the VA, Agent Orange, Persian Gulf Illness, things like
that, would have, I think, initially been considered frivolous.
They are so far from what one would imagine would happen. But
wartime is a very difficult time and strange things happen.
Regarding non-adversarial behavior, I am not sure you can
even really define that, but I think that might have a chilling
effect if we are going to do this. And our position, of course,
is you should not do this.
If you are going to do this, and you are going to have
attorneys practicing at this level, let them be attorneys. It
will become adversarial. It will become difficult. The VA will
get worse backlogs than they have now. I think the effect of
keeping this threat of not behaving in a non-adversarial manner
over the advocates, both veterans advocates and attorneys,
would be very difficult.
Finally, we do not think that, as important as this might
be to some veterans right now, we do not think this addresses
what are the real issues in VBA, and we think that this would,
for virtually all veterans, the intrusion of this very work
intensive aspect of representation would make things tough for
everybody.
I would like to just take a moment and read something that
was taken from testimony in 1988, before the hearings in this
Committee on judicial review, by my good friend Don Ivers, when
he was General Counsel of VA. And I do not do this to embarrass
him. I do this because I think it is the best description of
how a lawyer should behave and how he should serve his client.
``Under our adversary system, the role of counsel is not to
make sure that the truth is asserted, but to advance his
client's cause by any ethical means within the limits of
professional propriety. Causing delay and sowing confusion are
not only his right, but may be his duty. The appearance of
counsel for the citizen is likely to lead the Government to
provide one, or at least to cause the Government's
representative to act like one.''
In other words, I think it will become much more
adversarial in the regional offices if we have attorneys
practicing in there. That is one man's opinion, but if you
take, possibly, the duty to cause delay and sow confusion in
the regional offices, there is plenty of that already. I cannot
imagine that they could tolerate a whole lot more. I think what
could very well happen is a representative, an attorney, would,
in essence, attempt, not only to get his client the proper
decision, but develop a reputation for wearing down the
process, and thus maybe get a faster path, more receptive path
in the regional offices. I think that is not outside the realm
of possibility.
Mr. Chairman and Members of the Committee, once again on
behalf of the men and women of the Veterans of Foreign Wars, I
thank you for inviting us to present our views here today. I
will be happy to respond to any questions you may have.
[The prepared statement of Mr. Kinderman follows:]
Prepared Statement of Quentin Kinderman, Deputy Director, National
Legislative Service, Veterans of Foreign Wars of the United States
On behalf of the 2.4 million men and women of the Veterans of
Foreign Wars of the U.S. (VFW) and our Auxiliaries, thank you for
including us in today's discussion on the veterans' benefits bills
under consideration.
S. 1990, the ``Veterans Outreach Improvement Act of 2005,''
establishes a $25 million program to provide grants for state veterans'
outreach programs. The grants would be weighted based on the veterans'
population by state. Because it would be funded from the VA, the VFW
cannot support this bill.
The VFW recognizes the need for increased local outreach and
supports the goals of this legislation. However, as structured, this
program would redirect funds used for Veterans Benefits Administration
(VBA) use for VA outreach and claims processing unless Congress
allocates funding from a separate appropriations account, in addition
to current VBA funding. The VBA faces a mounting challenge of the
808,000 plus claims that await processing and a dismal error rate on
the claims they do process. While we are aware that VBA asserts that
their resources are adequate, it appears to us that there is
considerable evidence that this is not the case. Removing VBA resources
to do outreach weighted toward the largest, most populous states, will
exacerbate VBA's claims processing problems. While we do not doubt that
there exists a need to reach out to America's underserved veterans, we
do not see further deterioration in service as a viable tradeoff for
this initiative.
The VFW supports S. 2121, the ``Veterans Housing Fairness Act of
2005,'' which would extend housing loan benefits to purchase
residential cooperative apartment units. Many other government
agencies, including the Federal Housing Administration (FHA) already
have programs in place, which provide loans for cooperative residential
units, and we believe that VA would also be able to address any legal
issues by regulation, as well. This bill would favorably impact
veterans living in densely populated urban areas and create options for
veterans facing expensive housing markets.
S. 2416, the ``Veterans Employment and Training Act of 2006,'' aims
to expand licensure based lump-sum payments to areas of industry that
are experiencing critical shortages of employees or that are deemed
high growth industries, as determined by the Secretary of Labor.
The VFW has long called for the expansion of licensure and
certification programs to expedite the transition period from military
to civilian employment for servicemembers. We have also supported
expanding the GI Bill to make it more flexible and adaptable to the
real needs of today's veterans. Despite this, we have several concerns
about this legislation.
We are wary that the definition of the industries this bill covers
is overly broad; and in some cases, it could lead to careers, which do
not provide adequate skills to sustain long-term goals. The Department
of Labor's definition currently includes such broad industries as
``hospitality'' and ``retail.'' While rewarding careers can be found
within these industries, we believe the definition of which types of
programs are eligible needs careful monitoring, making it easier for
veterans to find truly rewarding careers in high-paying jobs.
Our second concern is oversight. With the expansion of the program,
comes opportunity for ``start-up'' companies and businesses claiming to
provide educational training opportunities for veterans as a way to
make easy profits. While the vast majority of companies are sure to
provide legitimate service, there will likely be opportunity for fraud
and abuse. Congress must see to it that there is vigorous oversight
built into the program to include significant evaluation and
accreditation so that unscrupulous companies cannot take advantage of
veterans.
S. 2562, the ``Veterans' Compensation Cost-of-Living Adjustment Act
of 2006,'' seeks to adjust compensation rates to reflect the rising
cost of living. We appreciate the Committee's commitment to maintaining
the integrity of the buying power of the veterans' compensation program
by providing periodic cost-of-living increases (COLAs). We fully
support this goal. However, we note that this bill once again contains
a provision for rounding down any fraction of a dollar in the COLA
calculation. This works against the spirit of this bill.
Over time rounding down the dollar, when combined with other
adjustments to meet budgetary goals, has caused erosion in fractional
compensation rates, especially for severely disabled veterans. This has
lead to significant problems for America's veterans. We think this is
the underlying cause of some compensation policy problems recognized by
this Committee. Accordingly, we support this action to adjust the
buying power of this program, which is of critical importance to
America's veterans who have sacrificed life and limb for our country;
but we urge you to refrain from this process of rounding down the last
dollar. While we realize that restoring the compensation rates to
linearity with the percentage of disability would require a significant
budgetary commitment, we urge you to at least begin the process by
enacting a ``rounding up'' provision this year. This would serve as a
show of good faith with America's veterans.
S. 2659, the ``Native American Veterans Cemetery Act of 2006,''
would allow tribal organizations to apply for grants to establish and
maintain veterans' cemeteries on tribal lands. We fully support S.
2659. We believe that this is a logical extension of the veterans'
cemetery grant program and will serve the needs of Native American
veterans and their families that are not fully addressed by the
National and State veterans' cemeteries.
S. 2694, the ``Veterans' Choice of Representation Act of 2006,'' is
generally consistent with the proposals that the Veterans of Foreign
Wars has opposed over many years. It would provide for claimants the
opportunity to be represented by for-profit lawyers from the point of
first filing a claim at a VBA regional office, instead of from the
point at which administrative remedies have been exhausted, the
decision of the Board of Veterans' Appeals (BVA). This is a radical
departure from current law.
The current administrative process, despite its shortcomings in
execution, is designed to be a non-adversarial process, with multiple
opportunities for review, and no restrictions on the submission of
evidence. By design, it also offers the opportunity for self-
representation, or representation by Veterans Service Organizations
(VSO) representatives at no cost to the claimant. This is the
administrative process of filing a claim, and many claims are granted
at this level. If not granted, then from the Notice of Disagreement to
the BVA decision, many claims, which were initially denied, are
reversed on reconsideration, or on account of submission of new
evidence. These claimants, if represented by lawyers under the
provisions of this bill, would pay a substantial amount of their
benefits as a fee for services that either would require only nominal
effort, or would have been provided at no cost by a VSO representative.
This would represent a windfall opportunity for lawyers to earn
significant fees with little effort. Moreover, since the fees may also
be dependent on the accumulated retroactive benefit, this bill provides
incentive for lawyers to slow the administrative process as much as
possible, both to wear down resistance to granting the benefit, but
also to maximize the past due amount of benefits payable. Since there
is no provision in this bill requiring lawyers to accept all clients,
they are free to pick those claimants who have claims that are most
likely to prevail in the administrative process. This allows lawyers to
maximize the fees payable, while minimizing their own efforts.
While the VFW supports veteran claimants, and the struggle that
many face to receive the benefits that they deserve as a result of
their increasingly often-heroic service, we believe that the
interjection of lawyers into a system intended to serve most claimants
sympathetically and efficiently is misguided. It would inevitably
result in even less timely service, and provide program administrators
with a justification to ratchet back still further in service and
assistance.
Under current law, claimants have the opportunity for legal
representation in the adversarial court process following a denial at
the BVA. VFW believes that this is the logical point at which the
assistance of a for-profit lawyer is appropriate and necessary. The
current system conserves the claimants' resources should it be
necessary to hire an attorney at the appellate level. We have seen,
even under the current system, claimants left without either resources
or representation, in the midst of their appeal, when both run out on
them.
The VFW still hopes that the VA leadership will address the very
significant deficiencies in claims processing in the regional offices,
but our optimism wanes. VBA's claims backlog now exceeds 808,000
claims, and continues to grow, the very significant errors in about
100,000 claims per year remain unaddressed, duty to assist is often not
honored, and appeals processing is grinding to a standstill in some
offices. Yet, VBA asserts that they are adequately staffed. If this is
the growing ``complexity'' that justifies for-profit representation at
the regional office level, then lawyers will provide relief for
selected claimants, at significant additional cost to them, but at
substantial cost to the entire system, since attorneys will not
tolerate this treatment by the VBA. Unless VBA addresses their own
problems instead of ignoring them, any significant number of attorneys
practicing at the regional office level may bring this system to the
point of collapse. The VBA system is simply not robust enough to absorb
the additional labor-intensive burden that effective for-profit
representation will impose. Introducing attorneys at the initial stages
of claims processing might be the tipping point referenced by the
Administrative Conference of the United States, in testimony before the
passage of the 1988 Veterans' Judicial Review Act, that any system that
permits attorneys, will eventually require them.
The VFW is also concerned that provisions in S. 2694, which would
apply to both attorneys and veterans' service organizations
representatives (VSORs) would negatively affect their ability to assist
veterans. This provision, no doubt crafted to address some of the
objections raised by the VFW and other organizations, would authorize
the VA General Counsel (VAGC) to remove or sanction any veteran
representative who fails to respect the ``non-adversarial nature of any
proceeding . . .'' or presented ``. . . frivolous claims, issues, or
arguments to the Department . . .'' or any other standard that the
Secretary sees fit to establish by regulation. It seems to us that
these restrictions are both too vague and subjective, and are
potentially too vulnerable to abuse by a department seeking to restrict
workload, to be in the best interest of veterans.
We frequently hear the complaint from VBA leadership that veterans
present claims for too many conditions or that veterans should be
restricted from reopening claims when their disabilities become more
severe. Our responsibility is to represent the interests of America's
veterans. We do this in teamwork with the VBA. However, should the best
interest of a veteran diverge from that of the VA, we do our best
within the law to assist the veteran. Furthermore, while we as VSORs
work toward fair and equitable decisions under the established
statutes, policies, and regulations and recognize that the system must
work accurately and efficiently for all to benefit, an attorney can and
should set about winning the maximum benefits for his/her client. This
would necessarily suggest the maximum use of every opportunity to
acquire or submit evidence, testify at a hearing, or dispute VA exams
or other evidence.
While we believe this is not disrespect for the ``. . . non-
adversarial nature of any proceeding . . .'' and it might increase the
cost of representation to the veteran, it will inevitably slow down VBA
processing. Should VA seek to curtail this as ``adversarial'' behavior
when faced by the inevitable growing backlogs, there is no obvious line
at which veteran's right to the claims process could be fairly limited.
One need only look at the history of claims processing before the
Veterans' Claims Assistance Act of 2000 and the many claims denied as
``not well grounded'' to realize that the balance between protecting
veterans' rights and addressing backlogs is a difficult one. We believe
that, in the effort to protect the non-adversarial process, veterans'
rights might be harmed, or taken away. The possibility of sanctions or
removal might tend to intimidate or discourage claims representatives,
or if this bill were to be enacted in full, attorneys. This would not
be in the veteran's best interest.
Regarding ``frivolous'' claims, we believe that prior to
Congressional action, claims from veterans claiming to be harmed by
weed killers used in Vietnam, atomic tests, secret mustard gas
experiments on ``volunteer'' servicemen, and Gulf War illnesses that
defy diagnosis, might all meet some definition of ``frivolous.'' In at
least one example: Agent Orange, veterans who accepted VA's guidance
and did not file were penalized as a result. While we realize that the
Veterans' Court has established a very limited definition of frivolous
claim, we see no legitimate need for this restriction at the initial
claim's level. Certainly, any claim that is truly frivolous would be as
rare as to have negligible an affect on VBA's workload; and the
potential for abuse by restricting legitimate claims would be too great
to make this restriction worthwhile. Certainly, an administration that
tolerates 100,000+ seriously erroneous claims decisions every year
should not be authorized to restrict the claims themselves on the basis
that they might be perceived to be frivolous.
It is for these reasons that we must oppose S. 2694.
Chairman Craig. Quentin, thank you.
I am going to have to recess the Committee for a few
moments while I run and vote, and then we will be back for the
rest of the testimony.
Mr. Kinderman. Thank you, Mr. Chairman.
Chairman Craig. And I will let you and the Judge work out
your differences.
[Laughter.]
Mr. Kinderman. Would you like us to do that while you are
gone, or should we wait?
Chairman Craig. Please.
[Laughter.]
Judge Ivers. I would like to have an opportunity to
respond, Mr. Chairman.
[Recess.]
Chairman Craig. The Committee will reconvene. Thank you,
gentlemen, for your patience, and the audience, for your
patience.
Before I go to Mr. Stichman let me turn to Judge Ivers
again.
Judge Ivers, you have been quoted, I think reasonably, for
the record and in a reasonably short period of time, I should
give you the opportunity to respond to your own words.
Judge Ivers. Thank you, Mr. Chairman. I first want to
disavow total ownership of those words, and point out that they
were quoted from a law review article by Judge Friendly in the
University of Pennsylvania Law Review in 1975. So they are not
totally my words; however, they were part of my testimony. I
think, in fairness, we need to go back and look at what was
being considered at that time.
First of all, I was the General Counsel of the Veterans'
Administration at that time. The Administration's position was
that we did not need lawyers at the initial stages. I do not
disagree with that position at that time in that context. I
still feel that was probably the right position to take.
However, the other thing that was under consideration at
that time was a process whereby once a veteran completed the VA
process, he or she would go directly into the U.S. District
Courts. That was before Congress, in its wisdom, arrived at the
compromise, which became the U.S. Court of Appeals for Veterans
Claims, which I think was the right answer, if there was to be
judicial review. But at the time that testimony was given and
that statement was made and Judge Friendly was quoted, the
object of the exercise was to put veterans cases into the
Federal Court system at the U.S. District Court level. That,
for lack of a better term would have turned them into a
veritable brawl with different results coming from different
U.S. District Courts and the further need to filter the results
up through the Federal Circuits.
So, we were talking about a completely different process.
Chairman Craig. Thank you. I appreciate that.
Mr. Kinderman. Mr. Chairman, very briefly.
I did not hear Judge Ivers say anything about the nature of
lawyers changing from Judge Friendly's characterization of
someone who will do everything within appropriate limits for
their client, which was the sole purpose of my quoting him.
Chairman Craig. Thank you.
Judge Ivers. May I, Mr. Chairman?
Chairman Craig. Very briefly.
[Laughter.]
Judge Ivers. I think that you have to take Judge Friendly's
comments with a grain of salt and also look at this process
that we are engaged in now. The Veterans judicial review is an
ongoing educational and maturing process. Attorneys are bound
by ethical rules. They are bound to follow the rules of the
forum in which they appear. If it is a non-adversarial forum,
then the attorney is obligated to honor that system.
The system can police itself in that respect by seeing that
lawyers toe the line and abide by the non-adversarial nature of
the proceedings below. Again, it does not become adversarial in
the strictest sense until you get into the court. I think there
is some merit to the argument that once you are denied a
benefit, as far as you are concerned as a veteran, it is
adversarial, particularly if you believe very strongly, as most
veterans do, that they are entitled to that benefit and they
are being wrongfully denied.
Chairman Craig. All right, gentlemen.
Mr. Kinderman. Just one more, please.
Chairman Craig. Alright. No more counterpoint. I gave you
five extra minutes in your opening statement.
Mr. Kinderman. Yes, sir.
I am not going to say a word about taking Judge Ivers'
testimony with a grain of salt, but I do have here an article
that I downloaded from the Internet about an attorney who is
doing very well out of Nebraska, which perhaps means that this
legislation is not necessary. He represents many veterans,
apparently, in his county before the VA in Nebraska, from the
very beginning of the claim.
He does not charge an attorney fee, but he has a memorandum
of gift, instead of memorandum of fee. He is apparently very
successful at having veterans, after their claims are decided
successfully at the regional office, tip him 20 percent of the
retroactive benefits.
I spoke to the VA General Counsel. They are going to look
into it. But I might say that it appears in this article, if it
is true, the Nebraska Supreme Court's Counsel for Discipline
investigated the matter and says that there does not appear to
be anything illegal or unethical about the attorney receiving
gifts freely given. So, I would submit that for the record.
Chairman Craig. I understand that. Doctors used to take
chickens and pieces of beef, also, for services rendered to
their clients. I think we have gone beyond that. Obviously,
here is a gentleman who, if true, has found a unique way to
find compensation in a system that denies it. The intent of the
legislation is not to deny it.
Mr. Kinderman. I understand.
Chairman Craig. OK. Let us move on. I thank you both for
your testimony.
Richard Weidman, Director of Government Relations, Vietnam
Veterans of America, welcome to the Committee.
STATEMENT OF RICHARD WEIDMAN, DIRECTOR OF GOVERNMENT RELATIONS,
VIETNAM VETERANS OF AMERICA
Mr. Weidman. Thank you very much, Mr. Chairman. On behalf
of John Rowan, our national president, I want to thank you and
your distinguished colleagues for the opportunity to present
our views here today.
Like my colleague from the VFW, I will take the less
controversial first if I may----
Chairman Craig. Alright.
Mr. Weidman [continuing].--and then zero in on the attorney
representation. In regard to the COLA Bill, S. 2562, Vietnam
Veterans of America is very much in favor of it.
S. 2121, as someone who grew up in New York City, I can
tell you how much this legislation is needed. To not be able to
purchase a co-op, which was one of the main ways housing is
organized in the Greater New York City area is a tremendous
detriment to our veterans. The ability to exercise this
important veterans benefit should not be determined by where
one lives in the country. And now, there is discrimination
against the 200,000 plus veterans who live in the Greater New
York City area, in that they cannot exercise the opportunity to
use a VA loan guaranteed by a co-op.
In regard to 2659, the Native American Veterans Cemetery
Act, we thank Senator Akaka and Senator Inouye for introducing
that. We are very much in favor of providing that opportunity
to Native Americans to establish their own resting place for
their veterans in the reserve territories. We would hope for a
speedy passage and enactment of that bill.
In regard to S. 2416, VVA is very much in favor of that
bill. And while we continue to believe that we need to move
toward a World War II style GI Bill for the young men and women
serving today, there are many steps on the road to achieving
that. But our goal is clear, sir. We need a bill like that
according to my father when he returned from the South Pacific,
from the China, Burma, India theater.
In regard to S. 3363, the Amendment to Title 38, about
accelerated payments under the GI Bill, VVA strongly supports
this legislation. The safeguards are in place through the
State-approving agencies and the only codicil we would put is,
we would encourage you to have your staff look into the
difficulties with the legislation that was passed 2 years ago
with the accelerated payments with problems with the State-
approving agencies moving ahead and approving courses of non-
credit courses of study for veteran entrepreneurs. They have
become biased, if you will, in favor of those who award
academic credit. That is not what our entrepreneurs need. They
need the skills in how to put together a business plan, in how
to put together a capital formation plan, and in how to
actually move forward to create wealth and create jobs in this
society.
In regard to S. 2694, the Veterans Choice of Representation
Act of 2006, we want to salute and thank you, Mr. Chairman, for
introducing this legislation. Since Vietnam Veterans of
America's inception in 1978, when we were still called the
Council of Vietnam Veterans, we have favored attorney
representation and judicial review.
We believe that this is a right that is now, as you pointed
out earlier so eloquently, accorded to enemy combatants. It has
always been accorded to illegal aliens. It has been accorded to
virtually every sector of society. How ironic it is that the
very people who pledge life and limb in defense of the
Constitution of the United States should be denied one of the
basic rights under the Constitution, which is access to the
courts under our balance of power in our unique, democratic
republic.
There are many distinguished colleagues in the other
veterans organizations, as you are keenly aware, that oppose
this. We respect them enormously. We would draw your attention
and that of your distinguished colleagues not just to the VFW's
statement, but that of the Disabled American Veterans, which is
extremely well put together. We disagree with it strenuously,
but it is extremely well done, and we hope that it will be
carefully considered by you and all of your colleagues, as well
as by your staff.
There is one thing I would like to correct in the record.
We said $10 originally, it was, of course, $5, and then raised
to $10 very soon afterwards, in terms of what was allowed. Of
course, none is allowed today.
The cries that this will destroy the non-adversarial system
of veterans benefits were exactly the same cries that we heard
in 1986 to 1988, during the period where we moved toward, at
least limited judicial review. Virtually everyone was saying at
that time, including VA, that it would destroy the veterans
benefits system as we know it. It has not. The veterans
benefits system lives on. The problems with the veterans
benefits system really have much more to do with proper
training and proper accountability within that system,
particularly of managers and supervisors and proper training
with competency--and I stress that if I may, sir--competency-
based testing for everyone involved in the system, including
adjudicators.
In regard to involving attorneys, the standards that you
talked about in terms of professional standards, we believe
that attorneys can help ensure that this complicated process is
processed correctly and thoroughly from the outset. Otherwise,
they are subject to discipline by their local bar association.
They are going to have to equip themselves just as they
would have to in any other subset and law specialty in order to
be able to provide adequate representation to their clients
under this area of specialized law.
This would also have the effect of facilitating more
successful administrative appeals because the claims would be
better prepared from the outset. I draw your attention, if I
may, sir, to the IG's report of May 2005, in regard to
disparities in claims and awards given. One of the key findings
of that, which was, unfortunately, all too much overlooked, is
that you had a 68 percent better chance of your claim being
successful if, in fact, you had a Veterans Service Organization
representative. Why is that? Because it was better prepared
than by the VA people, because many of our folks are better
prepared.
Those who say that this is not an adversarial system at
present have never been through this system. We always
recommend that you get a Veterans Service Representative now,
or a Veterans Service Officer, if you will, in some
organizations, because you need someone who knows what he or
she is doing in terms of preparing your claim and properly
representing it.
When veterans do not understand and/or often it is the
veteran and the spouse who approach us, we explain it by saying
it is like this, it is like having an attorney represent you
within this closed system. Only a fool represents him or
herself before the court. Opening it up to attorneys on the
outside, we believe, will only make it a more fair system and
one that is more professional overall.
As I mentioned before, I am going to touch on again, it is
an adversarial system, not intentionally so. Because of, as I
mentioned, lack of accountability, lack of proper training--and
the reason why they are overwhelmed is that there is not a
focus on doing it right the first time. Hopefully, with having
attorneys involved, more competent--and VA will respond with
having adjudicators better prepared.
The opponents who say that allowing veterans freedom of
choice, that only those veterans with financial means--that
does not restrict people who are seeking benefits before the
Social Security Administration. As you know, almost all of
those folks who generally have nothing, because they have not
been able to work in several years, are represented on a
contingent basis.
The overriding concern for VVA, as well as any other group
that cares about the rights of veterans, is, of course, that
the veterans get the most effective representation possible. If
a veteran wants to hire an attorney as his or her
representative at the VA regional office, is there a legitimate
basis to deny this right to do so? Our position is that we
cannot imagine this patronization and regarding VA as--I
hesitate to use this term, but others have used this term--as
the last plantation. That somehow, some way, we lose our native
intelligence when we enlist in the Armed Forces or serve our
country and take that step forward.
In addition to losing the right to hire an attorney, that
somehow, from that point on, we are not competent. That the
young people who are coming out of the military today who, last
month, had, at their control in many instances, in some
military specialties, more firepower and more awesome firepower
than ever unleashed in the history of mankind suddenly,
suddenly, as soon as they become veterans, are not capable of
making an informed and intelligent decision about whether to
hire an attorney and, if so, what attorney to choose. That
simply flies in the face of what we believe is a proper
attitude toward veterans.
The fair fees, as provided for----
Chairman Craig. Can I ask you to observe that red light,
and wrap it up as quickly as you can.
Mr. Weidman. I am sorry. I am over.
The fair fees, we are somewhat concerned about the VA--if
people succeed too much in claims, that there be an appeals
procedure that really works. And we ask that you exercise
diligent oversight in that regard. I have talked with your
staff about this issue, and they have convinced me that the
oversight and appeals process is adequate and I have gone back
and talked to our leadership on this issue.
We are very much in favor of this legislation and once
again salute you and thank you and urge speedy enactment of
this legislation as written. Mr. Chairman, thank you very much.
[The prepared statement of Mr. Weidman follows:]
Prepared Statement of Richard Weidman, Director, Government Relations,
Vietnam Veterans of America
Chairman Craig and distinguished Members of the Senate Veterans'
Affairs Committee, on behalf of Vietnam Veterans of America (VVA) and
our National President John P. Rowan, I thank you for the opportunity
to appear here today to offer our views on these important pieces of
legislation. While I will comment on each of the bills being considered
today, I will devote most of my time to the question of attorney
representation, as it is perhaps the thorniest question the Committee
is considering today.
s. 2694, veterans' choice of representation act of 2006
American veterans essentially cannot obtain legal representation
because of the current fee limitation in effect until after their case
has gone past the Board of Veterans' Appeals. Legal counsel at the
Court of Appeals for Veterans Claims (CAVC) is allowed to present no
new evidence. Allowing veterans legal counsel at the initiation of
their claim would give that claim a legal continuity. Legal counsel is
the right of all Americans, except veterans. This is an injustice that
must be redressed. VVA thanks you for bringing this issue to the fore,
and starting the process that we hope will at long last be successful.
As you are aware, legislation of this nature is not unheard of, and
in fact there have been several attempts over the past 20 years to pass
similar bills. None of these previous attempts have been even remotely
successful because of the vehement opposition of the Department of
Veterans Affairs under several Presidents, and the opposition of some
of our distinguished colleagues in other major veterans service
organizations (VSOs). The VA bureaucracy itself has opposed opening the
process to any form of meaningful reform. Today, however, Congress
appears to be ready to move to fix the broken, backlogged VA claims
adjudication process. Significantly, unlike in previous efforts, the
bipartisan leadership of both the Senate and House Veterans' Affairs
Committees appear to be the primary impetus behind the current
legislation. For this reason, there is a very strong possibility that
the current prohibition against veterans hiring attorneys before the VA
will be repealed during the 109th Congress.
From our inception in 1978, VVA has been the foremost champion
among the major VSOs of allowing veterans the right to choose to retain
attorney representation in their claims for VA benefits, and of
achieving full judicial review of all Compensation & Pension decisions
of the VA. In 1988, VVA secured a partial victory in this effort with
passage of the Veterans Judicial Review Act (VRJA), which among other
provisions provided for attorney representation of veterans before the
United States Court of Appeals for Veterans Claims (Veterans Court),
and limited attorney representation in Veterans Court cases that were
returned to the VA for re-adjudication. Under the proposed legislation,
veterans would be allowed to retain an attorney to represent them
before the VA regional offices (VAROs)--at the stage where their case
has not yet been fully adjudicated or denied, and before an appeal to
the VA's Board of Veterans' Appeals (BVA) is required.
Historical Background
The current restriction on attorney representation has its origin
in the Civil War (1861-1865). At that time, Congress limited the fee
charged by an attorney or ``claims agent'' to $10 for assisting a
veteran to complete and submit a claim to the Pension Bureau for a war
pension. This statute was passed to protect veterans from unscrupulous
lawyers and claims agents whose aim was to steal the veterans'
pensions. In 1865 there was no regulation of law practice by government
or licensing of attorneys by bar associations. Anyone could hold
himself out as an attorney or claims agent and, for a fee, assist a
veteran claim a pension. Nonetheless, in 1865 the value of $10 was many
times greater than today, and at that time this amount was a fair fee
and reasonable incentive for attorneys to assist veterans.
The statutory bar prohibiting a veteran from hiring an attorney
evolved from this 1865 legislation because the $10 limit was never
raised in the 123 years since then. With time, the $10 payment became
meaningless. In the modern era, unless the attorney represented a
veteran pro bono, the veteran could not legally hire an attorney for
representation services before the VA. An attorney accepting a fee from
a veteran greater than the authorized $10 would be committing a felony,
and was subject to a fine and/or imprisonment. Over time, the primary
proponents for not raising the $10 fee limit were the major VSOs, with
the VA as their ally, the sole purpose of which was to prevent veterans
from hiring attorneys.
With passage of the VJRA in 1988, which VVA vigorously supported,
the first major change in 123 years loosened the prohibition against
the veterans' right to hire an attorney. The VJRA created the Veterans
Court, giving veterans the right for the first time to appeal an
adverse BVA decision to a Federal court of review. And, with the right
to judicial review, Congress also allowed veterans the limited right to
hire an attorney to represent them in the Veterans Court, as well as
before the VA in cases the Veterans Court returned for re-adjudication.
While an important step, the VJRA left in place the prohibition against
veterans hiring an attorney for representation before the VARO and the
BVA. Thus, although some veterans are currently free to hire an
attorney in limited circumstances (i.e., where the case has first been
through the entire VARO and BVA appeals process), most veterans remain
prohibited from hiring an attorney.
Because of their training in the law, attorneys generally can
ensure that complicated claims are processed correctly and thoroughly
from the outset. Having attorneys involved at the initial claims
processing would help to ensure that the evidence is fully developed
``up front,'' and that the VA is satisfying its legal duty to assist
and complying with its own laws, regulations, and procedures. Also,
attorneys are more likely to interpret, understand and apply new case
law to veterans' claims. Just as important, attorneys also are well
equipped to identify frivolous or non-meritorious issues, and would
more likely ensure that these have been eliminated from a veteran's
application for benefits. Attorneys are ethically bound to do so.
Bringing a claim with little chance of success, only to be locked into
a years-long battle with the VA does not serve the interests of the
veteran.
If attorneys were allowed to represent veterans before the VARO,
this also would have the effect of facilitating more successful
administrative appeals before it would become necessary to appeal such
cases to the BVA or the Veterans Court. For example, attorney
participation in the claims adjudication process would ``raise the
bar'' on the part of VA adjudicators. Adjudicators would have to
perform at higher levels of competency at the early stages of the
process and would have to work a lot harder to justify denials of
meritorious claims. Also, on average, an attorney would have a smaller
caseload than most VSO service representatives. Therefore, the case of
a claimant retaining an attorney to represent him or her during the
entire claims process would likely receive significant individual
attention, which would also free VSO service representatives to spend
more time on their own veteran clients. All these effects will cause a
reduction in the number of BVA and Veterans Court appeals and remands,
leading in turn to a decrease in the backlog of claims. This outcome
would be of great benefit to all veterans.
The Rehashed Arguments Against Allowing Veterans the Right to Choose
Their Representative Have Long Been Discredited
The same arguments used to resist passage of the VJRA of 1988 are
being asserted again to resist passage of the Veterans' Choice of
Representation Act of 2006. Primarily, the rationale articulated by the
major VSOs and the VA for their vehement support for perpetuating the
bar to veterans choosing attorney representation is paternalistic,
i.e., they argue that the veterans benefits system is non-adversarial
and pro-claimant, and as such veterans and their benefits must be
``protected'' from unscrupulous attorneys. Putting aside the merits of
the argument that the VA benefits system is non-adversarial, the view
that veterans need to be ``protected'' from attorneys simply has no
basis in fact, and discriminates against veterans in comparison to the
unfettered right of all other socioeconomic groups in our Nation to
hire an attorney. There is no evidence that veterans have been abused
by their attorneys (by charging exorbitant fees, for example) upon
their being provided representation services before the Veterans Court
and then on remand from the Court to the BVA.
Also cited by the VA and some others as to why attorney
representation of veterans is harmful and should not be allowed is
that, by introducing attorneys into the mix during the initial claims
process, VA adjudicators will be forced to take a more adversarial
position when adjudicating claims. However, many veterans' advocates
would argue that the VA adjudication process is already adversarial.
Virtually any veteran who has been through this process will tell you
that.
The fact that this process is adversarial not necessarily because
of the animus of VA adjudicators, but because of their heavy workload
and the massive backlog of cases. It is far faster and easier for a VA
adjudicator to deny a claim and let the next level decisionmaker fix
any errors than it is to fully review the record, develop the evidence
and make a thoroughly reasoned decision. With the assistance of an
attorney at the start of a claim, the adjudicator's task can be
streamlined to reviewing the evidence, developing the evidence as
specified by the attorney, considering the attorney's legal and factual
arguments and analysis, and rendering a decision. If the attorney fully
develops the evidence as much as possible and writes a coherent
argument, a favorable claims decision is essentially written for the
adjudicator. Moreover, the adjudicator will have to work harder to find
a justifiable basis to deny the claim.
Another discredited ``doomsday'' argument is that allowing
attorneys to represent veterans at the VARO level will result in undue
competition with service representatives, perhaps even causing smaller
VSOs to be driven out of the business of representing veterans. Such an
outcome is highly unlikely. Allowing veterans the right to choose
attorney representation will not diminish the critically important role
of VA accredited VSO service representatives. As demonstrated by VVA's
historical support for judicial review and the right to attorney
representation, as well as its use of its own attorneys to represent
veterans before the BVA and the Veterans Court, VVA has always viewed
the roles of accredited service representatives and attorneys as
complementary. Both groups train and learn from each other, and
cooperate in the representation of VVA's veteran clients. The strength
of accredited service representatives is in their front-line work in
the field, developing claims and succeeding at the regional office
level in most routine cases. The further up the appeal process a case
must go, the more likely it presents complicated legal or factual
issues, and is not routine. In such cases, especially at the appellate
levels, the role of attorneys can be critical to providing veterans
with quality representation.
Moreover, there will never be enough attorneys representing
veterans to assist them all. Nor would attorneys have any incentive to
take all veterans as clients. Because attorneys will be paid, economic
considerations will determine the number of veterans who will choose
legal representation. For the same reason, no small VSOs will be put
out of the business of representing veterans because of attorneys. Only
a small percentage of veteran's benefits claims involve amounts of
past-due compensation sufficient to create incentives for attorney
representation. Because the vast majority of cases do not involve large
awards of past-due benefits, the vast majority of veterans will
continue to have their cases represented by accredited VSO service
representatives.
Yet another argument used in the past to resist attorney
representation is that many attorneys have little or no training in VA
laws, regulations and adjudication policies, which would result in
inadequate representation or even legal malpractice. This is a ``red
herring'' because, since the VJRA was enacted in 1988, there already
have been a number of attorneys throughout the country practicing in
this area of the law. It is true that more attorneys new to this
practice will become involved if the current bar to attorney
representation is repealed. However, ethical and other professional
responsibility rules require attorneys to be competent to adequately
represent their clients. Attorneys without direct experience with VA
benefits laws and procedures should be at least familiar with how to
obtain the information and learn what is necessary to provide adequate
representation to veterans. This is not a new concept for attorneys. It
is the method attorneys use with respect to every area of law in which
they might practice.
Lastly, opponents of allowing veterans' freedom of choice also
argue that only those veterans with financial means will be able to
afford attorney representation. In other words, they argue that poorer
veterans will be unable to afford attorneys and thus will be
disadvantaged in terms of the quality of their representation, causing
disparate classes of benefits claimants. It is highly unlikely,
however, that some veterans will be denied the benefit of attorney
representation based solely on their inability to pay the attorney's
fee. Virtually no veteran will be required to pay an attorney in
advance for representation. The vast majority of veterans' cases
handled by attorneys will be done on a contingent basis (no fee unless
an award of past-due compensation is won), which is the case with the
limited attorney represented cases that occur today. This means that
the merits of the veteran's case will most likely determine his or her
access to an attorney, not the veteran's financial standing.
The overriding concern for VVA, as well as any other individual or
group that cares about the rights of veterans, is that veterans get the
most effective representation possible. If a veteran wants to hire an
attorney as his or her representative at the VARO, is there a
legitimate basis to deny them the right to do so? The position of VVA
since its founding has been that no such basis exists. There should be
no wavering from this same answer today.
THE CHANGES PROPOSED IN THE NEW LEGISLATION
Current law setting forth the limited circumstances and
requirements for attorney representation for payment in veterans
benefits claims is found at 38 U.S.C. 5904(c) (2000). There currently
are three basic requirements. First and foremost, there must be a final
adverse BVA decision with respect to the claim.\1\ (This first
requirement means that a veteran with a case in a position to finally
hire a lawyer has gone through the entire VA claims adjudication and
appeals process without the right to have hired one. On average, this
process takes three to five years to complete.) Second, the veteran
must hire the attorney within 1 year of the date of the BVA decision.
Third, compensation can be paid to the attorney only for services
rendered after the date of the final BVA decision in the claim that was
the subject of the BVA's decision to deny benefits. See 5904(c)(1).
---------------------------------------------------------------------------
\1\ A BVA decision remanding a claim (to the VARO for further
development of the record, and, or, re-adjudication) is not ``final.''
A BVA decision awarding benefits without denying any is not
``adverse.'' Neither is a decision appealable to the Veterans Court,
nor one about which an attorney may be retained by the veteran.
---------------------------------------------------------------------------
The BVA has promulgated regulations requiring the attorney to file
a copy of any attorney-fee agreement with a veteran with the VARO and
BVA. When a fee becomes payable, the VARO first reviews the agreement
to determine that all the requirements for payment of a fee have been
met. Later, the BVA has the authority to entertain any allegation that
the fee charged by the attorney is excessive or unreasonable. If so,
the BVA may order a reduction in the fee called for in the agreement.
See id. at 5904(c)(2). The BVA's regulations provide that an attorney
fee of 20 percent or less is presumed to be reasonable.
In addition, the attorney can choose to have the VARO withhold his
or her fee and be paid directly by VA. If this payment procedure is
used, the attorney-fee amount cannot exceed 20 percent of the amount of
past-due benefits paid to the veteran on the basis of the claim. See
id. at 5904(d)(1).
In the proposed Veterans' Choice of Representation Act of 2006, the
requirement that there be a final adverse BVA decision before the
veteran may retain an attorney is eliminated in favor of allowing this
at the point the veteran a claim for benefits before the VARO. All of
the current provisions providing for VA oversight of the attorney-fee
agreement with the veteran would be kept in place; that is, the
requirements that the attorney-fee agreement be submitted to the VA and
that the fee must not be excessive or unreasonable continue as before.
The essential effect of the change is to allow veterans to hire an
attorney while their claims are still in the early stages of
adjudication at the VARO level of the claims process.
THE VETERANS' RIGHT TO CHOOSE
By virtue of the title of the legislation itself--Veterans' Choice
of Representation Act of 2006--the problem it seeks to redress is
readily apparent. Unless the veteran decides to be his or her own
representative, or is able to find a volunteer attorney, by law the
only choice of representation currently available is a service
representative from a VSO. Recently, a World War II veteran and long-
time attorney representing other veterans as a volunteer has described
the notion that veterans are not capable of competently deciding who
will represent them in a VA matter as ``flabbergasting.'' \2\
---------------------------------------------------------------------------
\2\ See ``Who Can Fight for the Soldiers?--Veterans Need the Right
to Hire a Lawyer'' by John C. McKay, The Washington Post, Opinion
Section (Sunday, January 22, 2006).
---------------------------------------------------------------------------
Although veterans are considered mature and responsible enough to
choose to serve their country, they are seen as lacking such
capabilities with respect to choosing legal representation. This
limitation, and the patronizing reasoning behind it, sets veterans off
from every other discrete group of the American population. No other
group--including illegal aliens and felons in penal institutions--is
barred from making a free choice about who will be their legal
representative in matters personal to them that may be pending before
the government.
If any group has earned the right to choose whether or not to hire
an attorney, it is our Nation's veterans. There simply is no
justification for refusing veterans this basic right that is taken for
granted by every other segment in our society.
Aside from the basic moral imperative of allowing veterans the
choice to freely pick their representation, there are other very
practical reasons veterans would desire this right. Primarily, the VA
benefits system is rife with problems about which attorneys possess
special skills to address. Even though intended to be ``non-
adversarial,'' the VA benefits system is nonetheless inherently
complicated. There are numerous claim forms, confusing terminology,
multiple deadlines for the submission of evidence and arguments,
unpublished rules, numerous sources of military and medical records
vital to a successful claim, and legal requirements that even VA
adjudicators do not easily understand. Because of the complex nature of
the veterans benefits system, and the lack of qualified VA
adjudicators, there is a tremendous backlog of claims awaiting
adjudication by VA. Because VA decision-making is so poor, adding to
the backlog of cases are hundreds of cases each month returned to the
VAROs from the BVA and the Veterans Court to correct errors. A veteran
typically can be stuck in the VA claims process for years. In the
present system, however, a lawyer cannot become involved in the case
until it is too late, i.e., after the initial evidence development and
adjudication has already occurred.
Vietnam Veterans of America strongly and unreservedly supports S.
2694 by convention resolution VB-14-95 ``Attorney Representation at
VA'' (copy attached). We urge its endorsement by this Committee and
passage by both houses of Congress. Our hope is that once this
milestone is achieved we can move quickly to real judicial review by
the Federal courts.
S. 2562, VETERANS' COLA ADJUSTMENT ACT OF 2006
S. 2562 would increase the current levels of disability
compensation, additional compensation for dependents, the VA clothing
allowance, and the various rates of Dependency and Indemnity
Compensation (DIC) for disabled veterans and their families. The
percentage increase would be equivalent to the percentage of the cost-
of-living adjustment (COLA) for Social Security beneficiaries, and
would become effective as of December 1, 2006. These COLA increases are
absolutely necessary to prevent veterans and their dependents from
falling through inflationary cracks.
VVA would also seek language in this legislation to include COLA
increases for children receiving $250 DIC compensation. DIC payments
are not affected by COLA increases.
S. 2121, VETERANS HOUSING FAIRNESS ACT
S. 2121 is a worthy piece of legislation. In some areas of the
country, co-ops--the two-syllable colloquialism for cooperative housing
corporations--have been off-limits to veterans seeking to secure a VA-
guaranteed loan to purchase residential cooperative apartment units.
Mr. Schumer's sensible bill would remedy this, providing thousands of
veterans residing in urban areas with a housing option currently closed
to them.
VVA endorses S. 2121.
S. 2659, NATIVE AMERICAN VETERANS CEMETERY ACT OF 2006
American Indians have served in every war fought by the United
States of America. During World War I approximately 12,000 served with
the American Expeditionary Force and many distinguished themselves in
the fighting in France. In World War II, more than 44,000 fought
against the Axis forces in both European and Pacific theaters. These
Americans compiled a distinguished record of courage and sacrifice.
More than 42,000 American Indians fought in Vietnam. American Indian
contributions in United States military combat continued in the 1980s
and 1990s as they saw duty in Grenada, Panama, Somalia, and the Persian
Gulf.
Native Americans continue to play a major role in the armed
services with nearly 11,000 on active duty today.
VVA believe it is time that Native American veterans who served our
country so honorably are allowed to pursue a decent, dignified resting
place on their tribal lands and fully supports S. 2659.
S. 2416, VETERANS EMPLOYMENT AND TRAINING ACT OF 2006
The GI Bill is marketed toward youth. It is portrayed through mass
advertising in such a skewed light that there is a common albeit
mistaken, perception among the general public that the GI Bill will
send a veteran through 4 years of college. The reality is far
different. Today's GI Bill will pay on average a little more than one-
fourth the amount of 4 years expenses at a state university at in-state
costs. Long gone are the days of former infantrymen walking the halls
of Yale and Stanford. The fact that qualified veterans are by and large
excluded, due to their economic stations in life, from the top,
prestigious institutions that churn out tomorrow's leaders, is not only
detrimental to veterans, but is a real blow to this Nation.
VVA believes that the time has come for a serious overhaul of the
existing Montgomery GI Bill. A truly substantial GI Bill, one modeled
on that accorded to World War II veterans that transformed America,
built the middle class, and was an essential ingredient in building the
greatest sustained economic engine in the history of the world, is what
is needed today. Additionally, we need to restore the apprenticeship
and explicitly directed vocational emphasis in the GI Bill to meet the
needs of many of our newest veterans. This is one benefit that will, in
turn, benefit this Nation for generations to come, returning many times
over the investment in dollars to the Treasury, as well as greatly
aiding in growing our Gross Domestic Product.
S. 3363--VVA supports this amendment to Chapter 35 Subtitle IV of
38 U.S. Code that would extend an accelerated education payment program
to dependents and survivors under the Montgomery GI bill. This benefit
is extremely useful in non-degree education/training programs that will
directly lead to meaningful employment.
Mr. Chairman, again all of us at VVA thank you for this opportunity
to present our views on these improvements in vital veterans benefit.
ATTORNEY REPRESENTATION AT THE VA
(VB-14-95)
Issue:
American veterans are unable to pay for legal services until after
their case has gone past the Board of Veterans' Appeals.
Background:
Legal counsel at the Court of Veterans Appeals for Claims for
Claims is allowed to present no new evidence. Allowing veterans legal
counsel at the initiation of their claim would give that claim a legal
continuity. Legal counsel is the right of all Americans, except
veterans.
Resolved, That:
Vietnam Veterans of America actively seeks and supports legislation
allowing veterans to access legal counsel at any point in their claim.
Financial Impact Statement: In accordance with motion 8 passed at
VVA January 2002 National Board of Directors meeting which charges this
Committee with the reviewing its relevant Resolutions and determining
an expenditure estimate required to implement the Resolution, presented
for consideration at the 2005 National Convention; this Committee
submits that implementation of the foregoing Resolution shall be at no
cost to National.
Chairman Craig. Richard, thank you very much.
Now let us turn to Bart Stichman, Co-Director of National
Veterans Legal Services Program.
Bart, welcome before the Committee.
STATEMENT OF BARTON F. STICHMAN, CO-DIRECTOR, NATIONAL VETERANS
LEGAL SERVICES PROGRAM
Mr. Stichman. Thank you, Mr. Chairman, for the opportunity
to testify. I would like to focus my remarks this morning on S.
2694.
A major part of the mission of the National Veterans Legal
Services Program since we were formed in 1980 has been training
lawyers and non-lawyer representatives in veterans law. We have
trained, over the last 26 years, thousands of lawyers and non-
attorney representatives in veterans law. And that helps inform
my written testimony and oral testimony today.
I ask that the written testimony be made part of the
record. I would like to highlight----
Chairman Craig. Without objection, it will be. Thank you.
Mr. Stichman [continuing].--I would like to highlight two
points in that testimony. First, the Veterans Service Officer
network is greatly overburdened today with a staggering
caseload.
As you know, over the last 5 years, the number of claims
has increased by 36 percent. The VA expects over 900,000 new
claims this year. In a recent National Law Journal article, it
reported that the cases of 18,000 VA claimants pending before
the VA regional office in St. Petersburg were being handled by
14 service officers employed by a major national Veterans
Service Organization. At the Los Angeles VA regional office,
the cases of 9,000 VA claimants pending before that office were
being handled by 9 service officers employed by that same
organization.
This amounts to over 1,000 pending claims for each service
officer. No service officer, no matter how well trained, can
devote a lot of time to an individual disabled veteran's case
when he or she has to handle more than 1,000 clients at the
same time.
Enactment of S. 2694 will have the important positive
effect of increasing the pool of advocates available to
represent the increasing number of disabled veterans who are
seeking VA benefits. This, in turn, will lighten the
overwhelming caseload borne by the service officers. It will be
a win-win situation for veterans, the service officers, and
attorneys.
The second point I would like to emphasize in my testimony
has to do with the arguments against allowing attorneys into
the system that have been made this morning: that it will make
the system more adversarial. I have a sense of deja vu. I have
heard these same arguments in 1988 when Congress was debating
whether to authorize judicial review of VA decision-making. The
arguments have not changed. The people who are being quoted are
the same people, Chief Judge Rehnquist from a 1985 decision,
judges who spoke in 1988, but that is 18 years ago. What has
happened in the last 18 years?
When Congress enacted the Veterans' Judicial Review Act,
they actually allowed attorneys into the VA system to be hired
by veterans in a limited sense. When there is a denial by the
Board of Veterans' Appeals, Congress allowed, beginning in
1988, veterans to hire lawyers to reopen their claim at the
regional office or to represent them for a fee on remand from a
court proceeding.
The Board of Veterans' Appeals denies about 10,000 claims
each year. Since 1988, 180,000 claims have been denied by the
BVA and an opportunity to hire a lawyer has existed. Some of
the veterans in these 180,000 cases have given up. Some of the
veterans have used Veteran Service Officers to reopen a claim,
or represent them on remand from court. And some have hired
attorneys. So, we have had 18 years of experience with lawyers
to some degree in the VA system. As a former Senator said,
where is the beef? Where is the evidence that lawyers have
caused the VA system to be more adversarial?
The VA and the others who have testified against your bill
have not cited any evidence. I know of no evidence. The sky has
not fallen, to my knowledge, because some lawyers have been
involved in the VA system. If you want to know the impact of
attorneys on the system, ask the clients of those attorneys how
they felt when they were represented and whether they were
helped, and whether it was worth the money to have paid the
attorney to, hopefully, win the case. That is the type of
record that would need to be made and is not being made to show
that the system would be made worse by the introduction of
attorneys.
I would be pleased to answer any questions the Committee
may have.
[The prepared statement of Mr. Stichman follows:]
Prepared Statement of Barton F. Stichman, Co-Director, National
Veterans Services Program
Mr. Chairman and Members of the Committee:
I am pleased to be here today to present the views of the National
Veterans Legal Services Program (NVLSP) on S. 2694, the ``Veterans'
Choice of Representation Act of 2006.'' NVLSP is a veterans service
organization with a unique perspective on the merits of this
legislation. Since NVLSP was established in 1980, we have trained
thousands of veterans service officers and lawyers in veterans benefits
law. We have also written educational publications that have been
distributed to thousands of veterans advocates to assist them in their
representation of VA claimants. This experience has helped us in
formulating our position.
NVLSP strongly supports enactment of S. 2694. As I discuss in more
detail below, we support S. 2694 for many of the reasons that Senators
Craig and Graham identified when they introduced this legislation.
THE MAJOR REASONS THAT S. 2694 SHOULD BE ENACTED
1. Freedom of Choice. In his press release of May 4, 2006, Senator
Craig answered yes to the following question: ``If American soldiers
are mature and responsible enough to choose to risk their lives for
their country, shouldn't they be considered competent to hire a
lawyer?'' NVLSP agrees entirely. Veterans deserve the right to choose
to hire an attorney to represent them on a claim for VA benefits. It
makes no rational sense to deny them this right when the right to
choose to hire an attorney is enjoyed by criminal defendants, claimants
for other Federal Government benefits including social security, and
non-citizens opposing Federal Government efforts to deport them. As one
observer aptly put it, the current, 144-year-old statutory bar to
hiring an attorney to help a disabled veteran on a VA claim is a
``museum piece'' that deserves to be repealed.
2. The Overburdened Veterans Advocacy Network. Another major reason
that NVLSP supports S. 2694 is that the current network of veterans
advocates available to our Nation's disabled veterans is greatly
overburdened. As I explain in more detail below, the time that veterans
service officers can devote to an individual disabled veteran's case is
greatly limited by the daunting caseload they must carry. Allowing
disabled veterans to hire attorneys will help alleviate this burden and
promote justice.
The number of disabled veterans who need representation on their
claims before the VA is staggering, and it is increasing over time.
Thomas J. Pamperin, Assistant Director of the VA's Compensation and
Pension Service, recently quantified for NVLSP the upsurge in VA
claims. He stated:
As reported in the President's budget submission for fiscal year
2007, disability claims from returning war veterans, as well as from
veterans of earlier periods, have increased 36 percent between 2000 and
2005. VA projects that disability claims in 2006 will increase to an
estimated 811,947, an increase of 23,649, based on the increasing claim
rate. We project an additional 98,178 more claims as a result of
specific legislation contained in VA's appropriation for 2006 mandating
personal contact with veterans in six states (the ``outreach effort'').
Thus, we anticipate a total of 910,126 disability claims in 2006
compared to actual receipt in 2005 of 788,298, an increase of 121,828
claims . . . Furthermore, VA is currently working on initiatives to
conduct outreach to potential non-service-connected, pension-eligible
wartime veterans and survivors.
A recent article in the National Law Journal (a copy of which is
attached hereto) gives a glimpse of the heavy load that is being
carried by our Nation's veterans service officers. The National Law
Journal reports that as of 2003, the cases of 18,000 VA claimants
pending before the VA regional office in St. Petersburg were being
handled by 14 service officers employed by a major national veterans
service organization. The cases of 9,000 VA claimants pending before
the VA regional office in Los Angeles were being handled by nine
service officers employed by the same organization.
This amounts to over 1,000 pending claims for each service officer.
No service officer--no matter how well-trained--can devote a lot of
time to an individual disabled veteran's case when he or she has to
handle 1,000 or more clients at the same time.
Enactment of S. 2694 will have the important positive effect of
increasing the pool of advocates available to represent the increasing
number of disabled veterans who are seeking VA benefits. This, in turn,
will help lighten the overwhelming caseload borne by many service
officers. Most disabled veterans will undoubtedly choose to continue to
be represented by a service officer who by law provides this service at
no cost. But disabled veterans who are represented by a service officer
will be benefited because the service officer will have more time to
devote to their case.
3. Improving Veterans' Access to the VA and Expediting Just
Outcomes. In Senator Craig's May 6th press release, he quoted Senator
Graham as stating that ``[t]his overdue change will significantly
improve veterans' access to the VA and expedite just outcomes.''
Senator Graham went on to state that ``[i]n today's complicated world,
legal assistance in navigating the system is more timely than ever.''
NVLSP strongly agrees with this assessment.
In the first place, NVLSP can vouch for the fact that the Federal
veterans benefits system has always been highly complex. To assist
service officers and attorneys in representing veterans in this system,
NVLSP has written the Veterans Benefits Manual (``VBM''), which has
been published since 1999. The fact that the VBM is over 1,700 pages
long reflects the complexity of the system. I should note that because
important changes in veterans benefits law take place every year, a new
edition of the VBM is published annually.
NVLSP also agrees with Senator Graham that enactment of S. 2694
would expedite just outcomes in this complex system. For example, in
11,833 of the 15,823 appeals (or 74.8 percent) that the U.S. Court of
Appeals of Veterans Claims decided on the merits during the last 10
fiscal years, the Court was forced to remand the case back to the VA
for further proceedings. Similarly, in 51,675 of the 121,174 cases (or
42.6 percent) heard by the Board of Veterans' Appeals during the last
three fiscal years, the Board was forced to remand the case back to a
VA regional offices for further proceedings.
A large percentage of these Court and Board remands are caused by
the failure of the regional offices to comply with the nonadversarial
VA procedures required by law in a way that prejudiced the veteran's
case. For example, some claims have had to be remanded because the
regional office failed to inform the disabled veteran of the evidence
necessary to substantiate the veteran's claim as required by 38 U.S.C.
5103. Some claims have had to be remanded because the regional office
failed to obtain the veteran's service department records, Social
Security records, or private medical records, or to provide the veteran
with a medical examination as required by 38 U.S.C. 5103A. Some claims
have had to be remanded because the regional office failed to obtain a
medical opinion addressing whether the veteran's current disability is
related to an event, injury, or disease that occurred during the
veteran's military service as required by 38 U.S.C. 5103A. These
remands delay, sometimes for years, the ultimate resolution of a
disabled veteran's claim that has already taken years to reach the
Board of Veterans' Appeals or the Court of Appeals for Veterans Claims.
But forcing the Board or the Court to make VA regional offices
comply with these nonadversarial requirements is not the only way for a
disabled veteran to have his claim fairly decided. If the obstacle to a
fair decision is that the regional office failed to inform the disabled
veteran of the evidence necessary to substantiate the veteran's claim,
a service officer or lawyer can remove that obstacle early in the
claims process by simply informing the disabled veteran about the
evidence that is necessary. If the obstacle to a fair decision is that
the regional office failed to obtain a medical nexus opinion or a
veteran's service department records, Social Security records, or
private medical records, a service officer or lawyer can remove that
obstacle early in the claims process by obtaining this evidence
themselves and submitting it to the regional office.
Given the current heavy caseload borne by the Nation's service
officers, many of them simply do not have enough time in every case to
analyze the claim and to obtain and submit the evidence that the VA
regional office was obligated by law, but failed, to obtain. Enactment
of S. 2694 should help alleviate this overload by making additional
advocates available to our Nation's veterans to assist them on their VA
claims. This, in turn, will increase the amount of time these advocates
have to devote to an individual case, thereby allowing them early in
the claims process to remedy the regional office's failure to comply
with the nonadversarial procedures required by law. The net result, as
Senator Graham stated, will be to ``expedite just outcomes.''
I want to stress that in the experience of NVLSP, most service
officers are well-trained, knowledgeable, and dedicated to helping
veterans obtain the benefits they deserve. Adding attorneys to the mix
of advocates who can represent veterans before the VA will ease the
workload of many overburdened service officers and allow them to spend
more time per case helping veterans. This legislation would add more
advocates to the mix, and protect veterans from unreasonable fees. It
is a ``win-win'' for both veterans and for service organization
representatives.
An Argument Raised Against S. 2276: It Will Allegedly Make the VA
System More Adversarial
Finally, I would also like to address an argument we have heard
some make against allowing veterans freedom to choose to hire a lawyer
on any VA claim. That argument is that the introduction of lawyers will
make the VA claims adjudication system more adversarial.
The basic flaw in the argument is that there is no evidence to
support this notion. Over the last five fiscal years, lawyers have
represented VA claimants before the Board of Veterans' Appeals in
13,021 of the 152,731 cases (or 8.53 percent) decided by the Board.
Thousands of VA claimants have been represented by lawyers before VA
regional offices. If lawyers would make the VA claims adjudication
system more adversarial to the detriment of VA claimants, then there
would already be evidence of this phenomenon. To NVLSP's knowledge,
there is no such evidence.
In conclusion, NVLSP greatly appreciates the opportunity afforded
to us by the Committee to address the merits of S. 2694. We believe
that there are some technical amendments to S. 2694 that would further
the objectives of the bill, and we intend to provide them to the
Committee in writing in the near future. That concludes my prepared
statement, and I would be happy to answer any questions.
Chairman Craig. Thank you very much.
Before we turn to any questions of the panel, we have been
joined again by Senator Thune.
John, do you have any opening statement or comments or
questions you would like to direct to this panel?
STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Thune. I thank you, Mr. Chairman. I would like to
make just a couple of comments and then I do have a question
that I would like to ask this panel. I appreciate you holding
this hearing and taking a look and hearing from all about the
range of initiatives and legislation that is moving through the
Congress up here that would address veterans benefits.
Obviously, we all have a bipartisan desire, and that is to see
that we ensure the veterans who faithfully served our country
receive the benefits that they have earned. And that the
veterans in this country know that we stand behind them in the
policies that we put in place.
As we look at the bills on the agenda today, I also want to
just make a couple of remarks about a bill I introduced shortly
before the Memorial Day break, and that is Senate Bill 3068,
which picks up on something one of your bill does, Mr.
Chairman, that is to extend the COLA through 2007 for veterans
disability. What my bill would do would just make that
permanent.
It is something that the cost is already assumed in the
budget baseline, and therefore does not have a budgetary
effect. Social Security and Medicare have automatic COLAs and I
think the veterans deserve the same security. And so I hope
this Committee would be able to support that bill. It is a good
bill that, again, has a neutral budgetary effect and it is a
small way, I think, of giving our disabled veterans a little
more peace of mind as they face the challenges of everyday
life.
I have a question with respect to the whole issue of hiring
lawyers, as well. I know there has been some discussion of this
on the last panel. I would be curious to get some comments from
this panel. I know that the process is designed not to be
adversarial and to promote a high degree of solicitude for our
veterans. I am sensitive to that side of the argument, as well.
But, I guess I am curious to know if there are any other
instances aside from the VA benefits claims process where
adults are restrained by law from hiring an attorney. This
seems to me to be a pretty rare exception. I think this
question was raised earlier, but if any of you are aware of
anybody that draws Social Security benefits that is prevented
from being able to retain an attorney to pursue that.
One of the problems with the Board of Veterans' Appeals
that we have is the significant backlog, and I guess I am
interested in just getting your observation about what effect
allowing veterans to hire lawyers at any stage in the process
would have on--would it increase the likelihood that backlogs
would become more significant or would it be likely to
streamline the process? I mean, what is your take on that
particular--that is an issue that, I think, is of great
interest.
Mr. Kinderman. Mr. Thune, Quentin Kinderman with the
Veterans of Foreign Wars.
We believe--I think we are alone at the table here--in that
we do not favor attorneys practicing in regional offices. We
believe that if there were only a few attorneys, it would
probably have a nominal effect. So, you cannot really predict
what is going to happen until you know how many attorneys will
end up practicing.
But we believe that the strategies that the attorneys will
use and the efforts they will go to assure that they do
everything on behalf of their clients will, in fact, make the
claims process more labor intensive. So, yes, if attorneys
practice in the regional offices to a significant extent, we
believe that we would see backlogs increase, unless VBA has a
commensurate increase in their capacity to do work. We do not
see that.
Mr. Stichman. If I might interject. I believe just the
opposite. The claims process will speed up by the introduction
of attorneys and let me explain why.
I mentioned before the high caseload maintained by Veteran
Service Officers. Because they have such a high case load, they
are forced to rely on the non-adversarial system for the VA to
assist the claimant by going out and getting Social Security
records, service medical records, private medical records. And
the veteran has to wait for the VA to do those things, or, if
it does not do it, for the service officer to contest that by
appeal to the Board of Veterans' Appeals.
Lawyers with a lower caseload do not need to wait. They
typically, from my experience, go out and get those records.
Even though the VA is required to get it, they go get the
records, submit it, and package the case so that the VA can
quickly decide it.
I was at a veterans law conference recently, where the
Deputy Service Manager of the Baltimore regional office of the
VA was talking about how wonderful it is to get a package case.
She loves when a claim comes in and has all the evidence. The
VA does not have to go out and get it because the attorney has
already done that and has the time to do that.
Those cases are decided quickly and favorably. And if you
have people with more time, that is going to happen more.
Mr. Weidman. I would like to second that, Senator. The
better prepared the case is with laying out the law, cogently
summarizing the argument as to why the individual qualifies for
the benefit for the compensation under that. Then, have the
evidence that is cited, tabbed, the same way an attorney would
in any filing of any significant brief. Attorneys know how to
do that. And when you give that to the VA, it can be
adjudicated in 15 to 30 minutes. Period. It is either there or
it is not there, and attorneys are used to doing that.
Judge Ivers. Senator Thune, I might add from the
perspective of having sat on the court for 15 years and
observed the significant number of cases that were remanded for
record insufficiencies, that having attorneys preparing the
record helped change my perspective on whether or not attorneys
should be allowed at the regional office level. I think
preparation of the record is key. The more concise that record
is and the more complete that record is, the better it is for
review by the court. I think that would help reduce the number
of remands from the court.
I am not sure how many attorneys will appear at the initial
stages. That would remain to be seen, as everybody has pointed
out. But any case that comes before the court that has a
complete and well documented record is going to get a complete
review on the merits because the essential record is all there
for the Court to look at.
Senator Thune. I appreciate that. That is a great
perspective. I think that is a concern, obviously, that
whatever we do, we want to make sure that it does not add to
the backlog and the delays and the slow downs that currently
exist. It seems to me that it would. If you have got folks like
attorney who are carefully organizing and putting together the
evidence, so to speak, and being able to make a very coherent
argument that it could have a streamlining effect.
But I think you stirred up here, a little bit, Mr.
Chairman, with your bill, but I appreciate the opportunity to
hear from the organizations that would be most affected by this
and want to work with you to make sure that we are serving our
veterans in the best manner possible. Hopefully, taking steps
to streamline the process to avoid the backlog and make some
headway in terms of just providing, I guess, a better level of
service when it comes to processing claims.
I appreciate very much your perspective on that and, again,
look forward to moving forward with the legislation. Thank you,
Mr. Chairman. I thank the panel.
Chairman Craig. Members of the panel, I want to thank you
all for your presence and your opinions. I think they are
extremely valuable for the record. My concern is equal to
yours, as it relates to case backlog and veterans being treated
fairly and timely, as it relates to the claims process.
We have a full complement at the court now. We have visited
it. We are listening. We are watching. We are trying to
understand where the problems rest. I know Quentin expressed
his concern and, it is a concern of ours. It has been expressed
by all of you, certainly the two of you--and also Richard. As
you heard the VA, it is pretty hard to argue the principle that
is reflected in the legislation, but we find it inherent to
defend the status quo.
The status quo is not serving our veterans, as we speak.
There are numerous reasons for it. I think Quentin, you
reflected some of those: proper training, educational
processes, making sure it is done right. That is one of the
reasons why I began to look at the possibility of taking down
this old restriction and opening up the opportunity for a
broader constituency out there of professionals that could
facilitate and assist our veterans.
We will see where it takes us. It is a worthy and important
debate to determine whether we move in this direction. Judge
Ivers, I think I am much closer to where you are as it relates
to the maturing of a process and of an approach that we are
into now, as it relates to veterans claims and how they get
handled effectively.
As my statement reflected, this is a policy in place of
long-standing that may no longer serve our veterans well, so we
are going to take a hard look at it.
Gentlemen, thank you very much for being with us today. We
appreciate it. The Committee will stand adjourned.
[Whereupon, at 11:50 a.m., the hearing was adjourned.]
A P P E N D I X
----------
Prepared Statement of Hon. Charles E. Schumer,
U.S. Senator from New York
Good morning Chairman Craig, Ranking Member Akaka. I want to thank
you and other Members of the Senate Committee on Veterans Affairs for
giving me the opportunity to testify on the importance of the Veterans
Housing Fairness Act of 2005 (S. 2121).
I come here today to speak in support of a very important issue,
veterans housing benefits. Everyone should be afforded the basic right
of having a roof over their heads and a safe and decent place to live.
No one should be left out in the cold, especially not our Nation's
veterans. The veterans of this country are the hard working men and
women who put their lives on the line to uphold the basic freedoms that
our country provides. These veterans are the men and women who proudly
served our country in World War II, the Korean War, Vietnam and the
Persian Gulf War.
And today, we have thousands of troops putting their lives on the
line in Iraq. These men and women who are in Iraq today will soon be
our newest generation of veterans. We need to ensure that we provide
all of our hard working veterans with the very basic rights, such as a
roof over their heads, after they put their lives on the line to
protect our rights as a Nation.
Today veterans face many problems when trying to secure safe,
decent and affordable housing. In many areas throughout the country,
including New York City, the cost of houses, condominiums, townhouses
and even mobile homes can be exorbitantly high. Sky-rocketing housing
prices combined with a lack of affordable housing units increase the
likelihood for veterans to be homeless, which is a growing problem.
According to the Department of Veterans Affairs, 250,000 of our
Nation's veterans are homeless--12,000 of them are concentrated in New
York City alone.
I am committed to ensuring our Nation's veterans receive the best
housing benefits, which is why I have introduced the Veterans Housing
Fairness Act in the previous two Congresses, and have re-introduced
this important legislation in the 109th Congress.
Under current law, veterans may use their VA housing loans to
purchase a house, townhouse, condominium, or mobile home, but they are
not able to purchase cooperative residential units with these loans.
Cooperative residential units, however, provide another affordable
alternative. My legislation, the Veterans Housing Fairness Act of 2005,
will expand the authority for VA home loan benefits to add this
important option for home ownership in a changing marketplace, which
will be a great asset to our Nation's veterans.
In certain areas of New York, such as New York City, cooperative
housing comprises as much as 30 percent of all residential owned
housing. Cooperative housing units are certainly not unique to the
State of New York. Outside of New York, there are over 15,000
cooperative townhouses in southeastern Michigan, 25,000 units in the
greater Washington D.C. area, 5,000 in Kansas City, and over 30,000 in
the state of California.
Other government agencies, such as FHA, currently have programs to
give loans for cooperative residential units. There is no reason to
deny veterans the ability to use their VA housing loans to purchase
these same units. S. 2121 will allow veterans to explore all housing
options and choose the one that best suits their needs, which will
increase the amount of affordable units, and will stem the tide of
homeless veterans.
This legislation would still ensure that a veteran can use his or
her VA housing Loans to purchase stock or membership in a single family
residential unit, much like the units in condominiums. My bill would
also comply with criteria established by the Secretary of Veterans
Affairs.
I am proud to announce that the American Legion, Paralyzed Veterans
of America (PVA), and the Veterans of Foreign Wars of the United States
(VFW) have all endorsed this legislation, and the Disabled Association
of Veterans (DAV) has acknowledged that this would be beneficial to
veterans and their families.
At a time when housing prices can far exceed a person's means, it
is important to present veterans with all options so that they too can
have the opportunity to purchase an affordable home. We need to ensure
that every American citizen--especially those who fought long and hard
for our country--has an opportunity to live the American dream of
homeownership. I urge my colleagues to support the Veterans Housing
Fairness Act of 2005, and I thank Chairman Craig and Ranking Member
Akaka for the opportunity to discuss this important issue.
__________
Prepared Statement of Hon. Mike DeWine, U.S. Senator from Ohio
I want to thank Chairman Craig and Ranking Member Akaka for
inviting me to discuss legislation that will benefit the survivors and
dependents of our deceased servicemembers. I appreciate your steadfast
dedication to improving benefits for our Nation's veterans and their
families. These families embody courage, patriotism, and dedication.
As you know, more than half of America's men and women in uniform
are married and about half of those families also have children. These
families supply endless support for our servicemen and women and I
believe we need to provide them that same support in the event that
they are killed while serving on active duty.
My legislation, S. 3363, which you will consider today, would pay
most of the education benefit upfront for survivors and dependents who
are pursuing an education in high-tech fields each semester. These
accelerated payments would be granted to students pursuing programs in
life science or physical science, engineering, mathematics, engineering
and science technology, computer specialties, and engineering, science,
and computer management. Accelerated payments for these programs are
currently available to GI Bill recipients and are helping our country
educate a much needed workforce in the following high-tech fields:
biotechnology, life science technologies, opto-electronics, computers
and telecommunications, electronics, computer-integrated manufacturing,
material design, aerospace, weapons, and nuclear technology.
I am thankful that the Committee has agreed to take a look at my
legislation--which represents the first step toward improving the
education benefit for survivors and dependents--but I am hopeful that
this Committee will also consider revisiting the policy regarding the
survivor education benefit. Conceptually, the Survivors' and
Dependents' Educational Assistance Program was established to provide a
partial education benefit. I think that it is time to again discuss the
intent of this program. We owe our deepest gratitude and support to
families who have lost loved ones while on active duty. Think of the
children who will grow up without their parent. The uniformed mother or
father of these children will never again sit at the dinner table to
help with homework, watch proudly as their child receives his or her
high school diploma, or help pack the car to move their new student to
college.
Last fall I introduced S. 2014, which would provide each eligible
beneficiary access to a college education. This bill would eliminate
the current 45-month cap on benefit payments and establish a $80,000
lump sum that can be drawn down for any educational expenses, including
tuition, fees, room, board, and books. Under current law, a survivor
only has access to about $37,215 if he/she attends college or a trade
school on a full-time basis. As we know, this amount would not even
guarantee a survivor access to a college degree from many state
universities today. In fact, let's use the Ohio State University as an
example. This public institution will cost in-state students roughly
$15,285 for the 2005-2006 school year, which includes tuition, room,
and board. Now, if there were no cost increases over the course of a 4-
year matriculation--which, in this day and age is an unrealistic
assumption--a degree from Ohio State would cost $61,140. This amount is
$23,925 more than the current benefit that is available from the
Department of Veterans Affairs. Clearly a gap exists.
Again, I appreciate the Committee's commitment to ensuring our
veterans, survivors, and their families have fair and adequate
benefits. I look forward to working with you as S. 3363 moves through
the Senate. This benefit improvement will not only improve the United
States' high-tech workforce, but will also provide easier financial
access to a high-tech education for our military survivors and their
dependents.
Prepared Statement of Peter S. Gaytan, Director, Veterans Affairs and
Rehabilitation Commission, The American Legion
Mr. Chairman and Members of the Committee:
Thank you for this opportunity to submit The American Legion's
views on the bills being considered by the Committee today. The
American Legion commends the Committee for holding a hearing to discuss
these important and timely issues.
S. 2562, THE ``VETERANS' COMPENSATION COST-OF-LIVING ADJUSTMENT ACT OF
2006''
S. 2562 will increase, effective as of December 1, 2006, the rates
of compensation for veterans with service-connected disabilities and
the rates of dependency and indemnity compensation for the survivors of
certain disabled veterans. The amount of increase shall be the same
percentage as the percentage by which benefit amounts payable under
title II of the Social Security Act (42 U.S.C. 401 et seq.) are
increased effective December 1, 2006.
The American Legion supports this annual cost-of-living adjustment
in compensation benefits, including dependency and indemnity
compensation (DIC) recipients. It is imperative that Congress annually
considers the economic needs of disabled veterans and their survivors
and provide an appropriate cost-of-living adjustment to their benefits,
especially should the adjustment need to be higher than that provided
to other Federal beneficiaries, such as Social Security.
S. 2694, THE ``VETERANS' CHOICE OF REPRESENTATION ACT OF 2006''
The ``Veterans' Choice of Representation Act of 2006'' seeks to
amend title 38, United States Code, to remove certain limitations on
attorney representation of claimants for veterans benefits in
administrative proceedings before the Department of Veterans Affairs
(VA), and for other purposes. S. 2694 outlines the oversight of
attorney representation to include registration fees collected by VA
from attorneys who wish to represent veterans.
The American Legion does not oppose the concept of attorney
representation in the VA system or the lifting of current restrictions
on attorney representation. We are concerned that such legislation
should contain adequate safeguards to ensure each attorney's
competency, training and reasonable fee limits. We are pleased that
this bill includes provisions addressing these areas of concern. We
recommend a fee cap or reasonable hourly rate be included to help
ensure a speedy resolution of the claim. As it currently stands with a
20 percent fee agreement, the longer it takes to satisfactorily resolve
a claim, the larger an attorney's fee. A fee cap or reasonable hourly
rate would help to avoid this problem and create an incentive for a
timely resolution of the claim.
Although we do not disagree with the reasoning of this bill, namely
that a veteran should have the right to hire counsel to represent him
or her in the VA claims administrative process, we do not concede that
attorneys would necessarily do a better job representing claimants
before the VA compared to experienced veterans' service organization
(VSO) representatives who currently provide this service free of
charge. Just because a veteran's advocate is an attorney does not mean
that he or she is proficient in this very specialized area of
administrative law and would be a more effective representative. In
fact, the data at the administrative level does not indicate that
attorneys are better or more effective representatives than VSO service
officers. A review of the Board of Veterans' Appeals (BVA) disposition
of appeals for Fiscal Year (FY) 2005 demonstrates that VSOs do as well,
if not better, than attorneys in achieving a favorable resolution of an
appeal.
Additionally, The American Legion disagrees with the notion that
lifting current restrictions so attorneys can enter the administrative
process, before a final VA administrative decision, will fix all the
problems that currently exist in the VA claims process. We are
concerned that attorneys may make these problems worse by clogging the
system with frivolous motions and other paperwork requests, and may
affect the current non-adversarial nature of the VA administrative
process. Moreover, some claimants who begin the process with an
attorney may, at some point during the claims process, for whatever
reason, sever the attorney-client relationship and then seek the
services of a VSO representative. This situation may put both the
claimant and the VSO representative at a disadvantage.
In conclusion, although we do not oppose this bill and appreciate
the various safeguards that are included, The American Legion does not
believe this legislation is a solution to resolving the major problems
that exist in the VA adjudicative process. We urge the Committee to
address the major problems, as discussed in detail below, that
currently exist, including, but not limited to, lack of accountability
in the adjudicative process, training, inadequate staffing levels, and
lack of quality and consistency in rating decisions by the rating
officials and veteran law judges.
STAFFING
Whether complex or simple, VA regional offices are expected to
consistently develop and adjudicate veterans' and survivors' claims in
a fair, legally proper, and timely manner. The adequacy of regional
office staffing has as much to do with the actual number of personnel
as it does with the level of training and competency of the
adjudication staff. The Veterans Benefits Administration (VBA) has lost
much of its institutional knowledge base over the past 4 years, due to
the retirement of many of its 30-plus year employees. As a result,
staffing at most regional offices is now made up largely of trainees
with less than 5 years of experience. Over this same period, as
regional office workload demands escalated, these trainees have been
put into production units as soon as they completed their initial
training.
Concern over adequate staffing in VBA to handle its demanding
workload was addressed by VA's Office of the Inspector General (IG) in
a report released in May of 2005 (Report No. 05-00765-137, dated May
19, 2005). The IG specifically recommended, ``in view of growing
demand, the need for quality and timely decisions, and the ongoing
training requirements, reevaluate human resources and ensure that the
VBA field organization is adequately staffed and equipped to meet
mission requirements.'' Additionally, the chairman of the Veterans'
Disability Benefits Commission questioned the Under Secretary for
Benefits about the adequacy of current staffing levels during a
Commission meeting this past July. The Under Secretary conceded that
the number of personnel has decreased over the last 3 years. It is an
extreme disservice to veterans, not to mention unrealistic, to expect
VA to continue to process an ever increasing claims workload, while
maintaining quality and timeliness with less staff.
Our current wartime situation provides an excellent opportunity for
VA to actively seek out returning veterans from Operations Enduring
Freedom and Iraqi Freedom, especially those with service-connected
disabilities, for employment opportunities within VBA. We also
encourage the hiring of more veterans and Reserve component personnel
as they are already well versed in the rigors of military service, its
health system and its medical and personnel recordkeeping systems, thus
their `corporate knowledge' acquired in service to their country will
enhance their work and they can provide valuable insights to their non-
veteran coworkers that will help the VA in its overall mission of
adjudication of veterans' claims.
TRAINING
Over the past few years, The American Legion's Quality Review Team
has visited almost 40 VA regional offices for the purpose of assessing
their overall operations. This assessment includes a review of recently
adjudicated claims. Our site visits have found that frequently there
have been an insufficient number of supervisors or too many
inexperienced supervisors to provide trainees the necessary mentoring,
training, and quality assurance. In addition, at many stations, ongoing
training for the new hires as well as more experienced staff was
postponed or suspended in order to focus maximum effort on production.
However, we are encouraged by the Under Secretary for Benefits' public
commitment to improving the training of VBA personnel and we
optimistically anticipate improvements in this area in 2006.
PRODUCTION VERSUS QUALITY
An informed observer of the VA adjudication system would find that
the VA suffers from a quality problem. Although VBA's policy of
``production first'' has resulted in many veterans getting faster
action on their claims, the downside has been that tens of thousands of
cases have been arbitrarily denied due, in part, to the lack of proper
development of the claim at the regional office. Approximately 65
percent of VA raters and Decision Review Officers (DROs) surveyed by
the IG, in conjunction with its May 2005 report, admitted that they did
not have enough time to render timely quality decisions. In fact, 57
percent indicated that they would have difficulty meeting production
standards if they took time to adequately develop claims and thoroughly
review the evidence before making a decision. Inadequate regional
office staffing levels and pressure to render quick decisions resulted
in an overall decrease in quality of work, and has also been a
consistent complaint among Service Center employees interviewed by The
American Legion during our quality checks. As a consequence, the
appeals burden at the regional offices, the BVA and the Appeals
Management Center (AMC) continues to grow.
In fiscal year 2005, the BVA issued more than 34,000 decisions. The
BVA overturned the regional offices' decisions or remanded the decision
for additional development in almost 60 percent of these appeals.
Clearly, if the VA ensured proper regional office decision-making the
inventory of appealed claims at the Board level would drop
precipitously. For years, The American Legion and other VSOs have
maintained that the driving force behind most VA adjudications is the
need by the VA to process as many claims as possible in the fastest
time possible. Awards and bonuses are often centered on production.
Even the IG acknowledged that because the VA often does not take the
time to obtain all relevant evidence and information, there is a good
chance that these claims are not properly adjudicated. This improper
emphasis on quantity and speed of adjudication results in premature
adjudications, improper denials of benefits, and of course,
inconsistent decisions.
Another result of premature claim adjudications is incorrect
decisions by the regional offices, which cause the consequent increase
in remand orders by BVA veteran law judges. In essence, these remand
orders are merely directing the regional offices to properly redevelop
a veteran's claim, actions the regional office should have taken the
first time the claim was filed. The growing claims backlog (according
to the VA, there were 370,799 rating claims pending as of May 20, 2006)
and the immense pressure on VA leadership to reduce it and provide
timely decisions is often at odds with efforts to maintain or improve
the quality of the decisions.
The establishment of realistic production goals and timelines that
take into consideration the number of pending cases and the complexity
of the work must be accomplished if VA is to ever reach a much needed
balance between production and quality in its adjudication process. In
addition to providing rating personnel with sufficient time to properly
develop and rate claims, it is essential for VA management to actively
encourage and reward quality work and hold individuals, at every level,
accountable for inferior work.
S. 2659, THE ``NATIVE AMERICAN VETERANS CEMETERY ACT OF 2006''
The ``Native American Veterans Cemetery Act of 2006'' will enable
the Secretary to make grants under this subsection to any tribal
organization to assist the tribal organization in establishing,
expanding, or improving veterans' cemeteries on trust land owned by, or
held in trust for, the tribal organization. Grants under this
subsection shall be made in the same manner, and under the same
conditions, as grants to States are made under the preceding provisions
of this section.
The American Legion supports the establishment of additional
national and state veterans' cemeteries wherever a need for them is
apparent. The American Legion supported P.L. 108-109, the National
Cemetery Expansion Act of 2003 authorizing VA to establish new national
cemeteries. Thus, The American Legion supports the Native American
Veterans' Cemetery Act of 2006 because of the apparent need encompassed
in this legislation.
Every passing generation of veterans has earned the thanks of a
grateful nation. Burial in a veterans' cemetery is the final salute to
this Nation's heroes. The American Legion will continue to work with
Congress to ensure that it provides the appropriate honor and
recognition to ``him who shall have borne the battle and for his widow
and his orphan.'' With young American servicemembers answering the
Nation's call to arms in every corner of the globe, we must now, more
than ever, work together to honor the sacrifices of America's veterans,
past, present and future.
S. 2416, THE ``VETERANS EMPLOYMENT AND TRAINING ACT OF 2006''
S. 2416 seeks to expand the scope of programs of education for
which accelerated payments of educational assistance under the
Montgomery GI Bill (MGIB) may be used, and for other purposes.
A higher percentage of today's servicemembers are married (with
children in the majority of cases) when they are discharged. Meeting
their financial obligations to sustain and maintain a family household
is paramount and financial obligations often serve as major obstacles
to the timely use of the MGIB. Every effort must be made to empower
veterans with options to make the best vocational choice.
The American Legion supports the provisions of the ``Veterans
Employment and Training Act of 2006''. The current unemployment rate
for veterans ages 18 to 24 is 15 percent, compared to the private
sector rate of 8 percent. Increasing the educational benefit available
through the MGIB would provide a better incentive for veterans to
complete an educational program with immediate employment results
without the need of acquiring student debt. In addition, The American
Legion strongly supports the expansion of the program to include other
short-term educational programs of value that could lead to the
employment of veterans.
S. 2121, THE ``VETERANS HOUSING FAIRNESS ACT OF 2005''
S. 2121 seeks to expand the VA Home Loan benefit to include the
purchase of stock or membership in a development, project, or structure
of a cooperative housing corporation. The loan may not be guaranteed
under subsection (a)(12) unless the development, project, or structure
of the cooperative housing corporation complies with such criteria as
the Secretary prescribes in regulations and the dwelling unit that the
purchase of stock or membership in the development, project, or
structure of the cooperative housing corporation entitles the purchaser
to occupy is a single family residential unit.
The American Legion has a number of concerns relating to this
legislation and its potentially harmful effects on veterans. These
concerns are listed below:
A veteran who buys into a co-op is also paying into a
shared loan, this arrangement potentially places the veteran in a
situation that depends on the financial stability of others.
Any significant down turn in the economy, or other
financially related events, could have a significant impact on the
ability of other cooperative members to meet their fiscal obligations
to the co-op, which could result in the foreclosure of the blanket
mortgage on that dwelling thus forcing the veteran to lose his or her
home through no fault of his or her own.
Unlike other homeowners, veterans residing in co-ops do
not obtain a title to their home. Therefore, that veteran does not
truly own his or her own home. In addition, veterans may forfeit the
normal homeowner's right to sell their co-op, when and to whoever they
chooses because co-ops have their own governing rules regarding the
resale of a dwelling unit and these rules may conflict with current VA
and Federal laws and regulations.
In addition to the fact that a sale must be approved by
the co-op, the sale of a dwelling unit may include the charging of
additional fees, which, can be placed on the veteran at any time. These
unregulated additional fees are contrary to the purpose of providing
affordable housing to veterans.
The American Legion does not have an official position on this
particular bill at this time.
a draft bill, to amend title 38, united states code, to provide for
accelerated payment of survivors' and dependents' educational
assistance for certain programs of education, and for other purposes
The Draft Bill extends to Chapter 35 beneficiaries the same
accelerated payment feature for high-tech courses that Chapter 30
beneficiaries have, and it adds additional accelerated payment course
options similar to those found in S. 2416, which seeks to expand the
scope of programs of education for which accelerated payments of
educational assistance may be used.
The American Legion supports this bill. As the educational and
labor demands in our society change, the educational benefits VA
provides under Chapter 35, Dependents' Educational Assistance, need to
adapt accordingly. This bill will take today's diversity in educational
programs and vocations into account and provides more educational
opportunities for Ch. 35 participants.
CONCLUSION
Thank you again, Mr. Chairman, for allowing The American Legion to
provide written comments on these measures. As always, The American
Legion welcomes the opportunity to work closely with you and your
colleagues on enactment of legislation in the best interest of
America's veterans and their families.
__________
Prepared Statement of David G. Greineder, Deputy National Legislative
Director, AMVETS
Chairman Craig, Ranking Member Akaka, and distinguished Members of
the Committee:
On behalf of National Commander Edward W. Kemp and the nationwide
membership of AMVETS (American Veterans), I am pleased to offer our
views on the pending veterans legislation before you today.
AMVETS is a staunch advocate of providing veterans with the
benefits and services they earned through honorable military service.
As a leader since 1944 in helping to preserve the freedoms secured by
America's Armed Forces, our organization continues its proud tradition
providing not only support for veterans and the active military in
procuring their earned entitlements, but also an array of community
services that enhance the quality of life for this Nation's citizens.
AMVETS applauds this Committee and its efforts to identify, examine
and pursue the legislative initiatives necessary for veterans to obtain
the services and benefits they so richly deserve.
S. 2562, THE VETERANS' COMPENSATION COST-OF-LIVING ADJUSTMENT ACT OF
2006
S. 2562 would provide a cost-of-living adjustment (COLA) to
veterans' benefits effective December 1, 2006. The House and Senate
annually review service-connected disability benefits and DIC programs
to ensure they provide reasonable and adequate compensation for
disabled veterans and their families. Based on this review, Congress
acts to provide a COLA in compensation and DIC benefits.
AMVETS supports S. 2562, but we would strongly recommend rounding
benefits to the next higher dollar amount, not the next lower dollar
amount, as outlined in Section 2(c)(2). We believe rounding to the next
higher dollar amount would be fair and appropriate for disabled
veterans.
AMVETS also encourages this Committee to seriously look at
legislation recently introduced by Sen. John Thune of South Dakota and
Rep. Joe Knollenberg of Michigan. Their bills, S. 3068 and H.R. 5444
respectively, would automatically increase veterans' disability
benefits each year by the Consumer Price Index (CPI), without an act of
Congress. It is important VA benefits keep pace with society and the
high cost of living. H.R. 5444 would see that veterans' benefits are
increased proportionately and will sustain the same buying power as in
previous years. AMVETS believes this is a more efficient and timely way
of providing a COLA to our Nation's disabled veterans and their
families.
S. 2694, THE VETERANS' CHOICE OF REPRESENTATION ACT OF 2006
With all due respect, Mr. Chairman, AMVETS has many concerns with
this legislation. S. 2694 would allow veterans to hire an attorney at
any stage of the VA administrative process. First, veterans service
organization provide, free of charge, excellent representation and a
broad range of services to any veteran--member or not--within the
community. A private attorney can and will charge high fees, which
would be withheld from any benefit awarded to the veteran.
Furthermore, the VA benefits system is a labyrinth of laws and
regulations that takes years of experience and training to understand
and navigate. I realize there are training programs and fee caps
outlined in the bill, but frankly, how is VA going to administer these
programs and caps, and how will they work? VBA is financially strapped
as it is, and claims backlogs continue to grow. We need to work on
reducing pending cases and hiring more effective and knowledgeable
claims processors, not lawyers.
Mr. Chairman, there are currently over 118,000 claims pending for
more than 180 days. Please don't add to the growing backlog by allowing
lawyers into the VA system. AMVETS knows you are a friend to veterans
and are trying to think of ways to improve the benefits system. But the
issue is not necessary whether veterans have the right to hire a
lawyer, they do at certain stages of the process. We are concerned that
lawyers would only increase the burden to the system and contribute to
the growing backlog. AMVETS does NOT support this legislation and we
recommend you reconsider your position.
S. 2659, THE NATIVE AMERICAN VETERANS CEMETERY ACT OF 2006
S. 2659, introduced by Ranking Member Akaka, would authorize the
Secretary of Veterans Affairs to make grants to any tribal organization
for establishing, expanding, or improving veterans' cemeteries on trust
lands. Essentially, it would allow tribes to apply for state cemetery
grants from VA. Under current Federal law, only States are able to
apply for the grants.
As the veterans service organization responsible for the cemeteries
portion of The Independent Budget, AMVETS works very closely with the
National Cemetery Administration (NCA) and fully supports the State
Cemeteries Grant Program. The program assists States in providing
gravesites for veterans in areas where VA's national cemeteries cannot
fully satisfy their burial needs. In the western United States, where
many Native Americans live today, the large land areas and spread out
population makes it difficult to meet the ``170,000 veterans within 75
miles'' national veterans cemetery requirement.
AMVETS believes cemeteries on tribal lands would be an appropriate
memorial and reminder of the sacrifices made by Native American men and
women. AMVETS supports the bill.
S. 2416, THE VETERANS EMPLOYMENT AND TRAINING ACT OF 2006
S. 2416, introduced by Sen. Burns, would greatly enhance Montgomery
GI Bill education benefits for eligible veterans wanting to use tuition
assistance in a high-growth industry. Specifically, the bill would
expand the range of programs for which accelerated payments of
educational assistance can be used.
Overall, the legislation would make short-term, high-cost training
programs more affordable to veterans. Currently, GI Bill benefits are
paid as a monthly stipend to the maximum amount of $1,000. However,
many training programs run anywhere from 4 to 6 weeks, and can cost
upwards of $6,000. At most, the GI Bill benefits only offset about
$1,500 of the veterans' tuition, but accelerated benefits could cover
upwards of 60 percent of the cost.
Most importantly, this legislation would help address the serious
unemployment rate of veterans between the ages of 20 and 24. Veterans
in this age bracket have an unemployment rate of over 15 percent--
nearly double the rate of non-veterans in the same age group.
Accelerating GI Bill benefits for training in high-tech occupations
would help place veterans in a good paying, long-term, and secure job.
AMVETS endorses the bill.
S. 3363, A BILL TO PROVIDE ACCELERATED PAYMENTS OF SURVIVORS' AND
DEPENDENTS' EDUCATIONAL ASSISTANCE
S. 3363, introduced by Sen. DeWine, would extend accelerated
education payments for high-tech industries outlined in Sen. Burns'
bill, S. 2416, to survivors and dependents. AMVETS supports the
legislation.
s. 2121, the veterans housing fairness act of 2005
S. 2121, introduced by Sen. Schumer, would allow VA housing loan
benefits to be used for the purchase of residential cooperative
apartment units. Under current law, VA loans can be used to purchase a
house, townhouse, condominium or even a mobile home, but not a co-op.
Co-ops make up the vast percentage of affordable housing in large
cities and are usually less expensive than a condo or other unit. This
legislation would give veterans greater housing choice by allowing them
to use their hard-earned benefits to buy a co-op if they prefer. AMVETS
supports the bill.
Mr. Chairman, before I close, I would like to take a moment and
thank you for your swift action on H.R. 5037, the Respect for America's
Fallen Heroes Act. AMVETS appreciates you working together with Mr.
Akaka, the Leadership and your colleagues in the Senate to get this
very important bill passed. It is the right thing to do for the
families who have lost loved ones, and will it honor the ultimate
sacrifice of our fallen comrades. Thank you for your leadership.
In closing Mr. Chairman, AMVETS looks forward to working with you
and others in the Senate to ensure the earned benefits of all of
America's veterans are strengthened and improved. As we find ourselves
in times that threaten our very freedom, our Nation must never forget
those who ensure our freedom endures.
This concludes my testimony. Thank you again for the opportunity to
present our views, and I would be happy to answer any question you
might have.
______
June 8, 2006.
Hon. Larry Craig,
Chairman, Veterans' Affairs Committee,
Russell Senate Office Building,
Washington, DC.
Dear Chairman Craig: Neither AMVETS nor I have received any Federal
grants or contracts, during this year or in the last 2 years, from any
agency or program relevant to the May 25, 2006, Committee hearing on
the legislation before the panel.
Sincerely,
David G. Greineder,
Deputy National Legislative Director.
__________
Prepared Statement of Douglas M. Kleine, Executive Director, National
Association of Housing Cooperatives
On behalf of the National Association of Housing Cooperatives, I
thank the Chairman and Members of the Committee for the opportunity to
testify about the need to include cooperative housing in the VA Home
Loan Guaranty Program, as proposed in S. 2121. I am Douglas M. Kleine,
Executive Director of the National Association of Housing Cooperatives,
or NAHC. NAHC represents housing cooperatives and housing cooperative
professionals.
nahc
The National Association of Housing Cooperatives (NAHC) was founded
in 1960 to provide information on the successful creation and operation
of housing cooperatives. NAHC helps low and moderate income families
govern, manage, and preserve affordable homeownership communities for
themselves and future residents. Over 1.2 million families now live in
townhouse and apartment housing co-ops in 30 states, the District of
Columbia, and Puerto Rico. About half of all housing co-ops are in the
greater New York City area, but other concentrations can be found in
Boston, Atlanta, Miami, Philadelphia, Pittsburgh, Detroit, Chicago,
Indianapolis, Minneapolis-St. Paul, San Francisco, Seattle, and Los
Angeles. Here in DC, where Washington's Mayor Williams lives in a co-
op, there are over 200 co-ops, and just outside the city, the planned
community of Greenbelt, Maryland, has been a co-op for over 50 years.
What is Cooperative Homeownership?
While everyone is familiar with homeownership through fee simple
ownership of a single-family home or a condominium unit, the option of
owning one's home through a cooperative is much less understood, even
though co-ops date back to the 1920s in the US. In a cooperative,
residents own shares of the cooperative corporation; the corporation
holds title to the entire multi-family property. Ownership of a share
in the cooperative entitles the resident to sole occupancy of a
specific unit. Instead of rent, the resident-owners of the cooperative
pay monthly carrying charges to cover the cooperative's debt,
maintenance, and other expenses. As in condominiums, the resident-
owners elect a board of directors from among themselves to make
policies for the cooperative. The board of directors usually hires a
manager or management agent to run day-to-day operations.
Congress Should Continue to Treat Co-Op Share Loans Like Single Family
Mortgages
Purchasers of cooperative shares obtain financing from lenders on
much the same terms as a mortgage. The loan is secured by the shares,
and has been classified as a residential mortgage by the Federal Home
Loan Bank Board for over 25 years. Fannie Mae has provided a secondary
mortgage market for share loans for over 25 years, the Federal Housing
Administration (FHA) has had authority for over 25 years to ensure
share loans through the Section 203(n) program, and for over 60 years,
Congress has recognized the similarity of cooperative homeownership to
single family and condominium ownership by giving co-op shareholders
the right to take a personal income tax deduction for interest on a
share loan and a pro rata portion of the mortgage interest and real
estate taxes paid by the cooperative corporation. In 2000, Congress
made co-op homeowners eligible for FHA-insured Home Equity Conversion
Mortgages, and in 2004, Congress included co-ops in the American Dream
Downpayment Assistance Act.
Veterans Should Have the Ability to use the VA Loan Guaranty Program to
Buy
Into a Co-Op
Given all the other agencies and organizations participating in
share loan financing, it clearly is time that the Department of
Veterans Affairs be given the statutory authority to guaranty share
loans as provided in S. 2121. Doing so is good for the veteran by
providing the veteran with a wider choice in housing and a wider choice
in home financing. Indeed, in many housing markets co-ops are often the
most affordable homeownership option for veterans. And this benefit
would come with little or no risk to the government. We can say that
because underwriting guidelines have existed for over 25 years, and
Fannie Mae reports that their co-op share loan portfolio performs
better than their single family portfolio. We are confident that VA's
Loan Guaranty Service, using this marketplace underwriting history as
well as VA's long experience in multifamily settings through its
condominium program, can establish reasonable risk mitigation
procedures to protect the veteran and the agency.
Thank you again, Mr. Chairman and Members of this Committee, for
this opportunity to state why our veterans should have greater choice
and be able to use VA home loan guaranty benefits to buy into a housing
cooperative.
______
Press Release from the National Association of Housing Cooperatives
Washington, DC.--``Veterans cannot now use their GI benefits to buy
into a housing co-op,'' said Douglas M. Kleine, executive director of
the National Association of Housing Cooperatives in testimony submitted
to the U.S. Senate Committee on Veterans Affairs hearing on S. 2121,
The Veterans Housing Fairness Act of 2006. S. 2121 would give authority
to the Department of Veterans Affairs to guaranty home loans for
veterans who choose to buy into a housing co-op.
``In many housing markets, co-ops are often the most affordable
homeownership option for veterans,'' Kleine says. ``And adding co-ops
to the VA loan guaranty program would come with little or no risk to
the government.'' NAHC noted that co-op loan underwriting guidelines of
Fannie Mae have existed for over 25 years. ``We are confident that VA's
Loan Guaranty Service, using this marketplace underwriting history as
well as VA's long experience in multifamily settings through its
condominium program, can establish reasonable risk mitigation
procedures to protect the veteran and the agency,'' concluded Kleine.
NAHC
The National Association of Housing Cooperatives (NAHC), founded in
1960, provides information on the successful creation and operation of
housing co-ops. NAHC helps low- and moderate-income families govern,
manage, and preserve affordable homeownership communities for
themselves and future residents. Over 1.2 million families now live in
townhouse and apartment housing co-ops in 30 states, the District of
Columbia, and Puerto Rico. About half of all housing co-ops are in the
greater New York City area, but other concentrations can be found in
Boston, Atlanta, Miami, Philadelphia, Pittsburgh, Detroit, Chicago,
Indianapolis, Minneapolis-St. Paul, San Francisco, Seattle, and Los
Angeles. In Washington, D.C., where Washington's Mayor Williams lives
in a co-op, there are over 200 co-ops, and just outside the city, the
planned community of Greenbelt, Maryland, has been a co-op for over 50
years.
__________
Prepared Statement of Rose Elizabeth Lee,
Gold Star Wives of America, Inc., Chair, Legislation Committee
``With malice toward none; with charity for all; with firmness in
the right, as God gives us to see right, let us strive to finish the
work we are in; to bind up the nation's wounds, to care for him who has
borne the battle, his widow and his orphan.''
President Abraham Lincoln,
Second Inaugural Address, March 4, 1865.
Mr. Chairman, Senator Akaka, and Members of the Senate Veterans'
Affairs Committee, I would like to thank you for the opportunity to
submit testimony to you on behalf of all Gold Star Wives regarding a
bill to provide for accelerated payment of survivors' and dependents'
educational assistance.
My name is Rose Lee. I am a widow and the Chair of the Gold Star
Wives (GSW) Committee on Legislation. I am also currently President of
the Potomac Area Chapter. In the past, I have held the positions of
President and Chair, Board of Directors for GSW. For nearly thirty
years now I have been working to achieve the overall goals of the Gold
Star Wives, and more specifically to assist our young, new widows, one
by one, wind their way through the maze that lies before them with
first notification of the death of their loved one.
The Gold Star Wives of America, Inc. was founded in 1945 and is a
Congressionally chartered service organization comprised of surviving
spouses of military servicemembers who died while on active duty or as
a result of a service-connected disability. We could begin with no
better advocate than Mrs. Eleanor Roosevelt, newly widowed, who helped
make GSW a truly national organization. Mrs. Roosevelt was an original
signer of our Certificate of Incorporation as a member of the Board of
Directors. Many of our current membership of over 10,000 are the widows
of servicemembers who were killed in combat during World War II, the
Korean War, the Vietnam War and the more recent wars including the one
we are currently in, the Global War On Terrorism (GWOT).
In this testimony I will respond to your request for our
legislative views on S. 3363, a bill to provide for accelerated payment
of survivors' and dependents' educational assistance. It is important
that our widows and their children have the assistance they need to
continue or begin an education to help assure employability as they
transition into their new lives with a need for a different means of
family support than had been previously planned. It is imperative that
the difficulty of the sacrifice of our husbands' lives be mitigated to
the degree possible by providing support for opportunities through
education to achieve financial security for the survivors.
Thank you for this opportunity and for your continued support of
programs that directly support the well-being of our servicemembers'
widows and their families.
Gold Star Wives applaud the efforts of this bill to assure timely
payment of educational benefits. This is surely a key to easing a
survivors' difficult task of moving into their new lives. There are
several principles that we feel are necessary to assure that this
legislation can truly accomplish the purposes for which it was written.
1. We need to assure that there is thorough and wide-spread
communication about this benefit when it is passed into law. It is one
thing to do the right thing in providing the legislative authority
necessary to help with transitioning lives; it is quite another to
assure that those who could use the benefit recognize that it is
available and know how to access it. Communication is key, and we
recommend that it be part of this legislation.
2. Other legislation aimed at assisting survivors over the last
several years has sometimes divided survivors along an arbitrarily
designated date that excludes those who became widows early in this
current conflict from the benefit. GSW recommends that it be clearly
stated in this legislation that it applies to all widows or survivors
of the Global War on Terror.
3. Education benefits for surviving spouses who are on active duty
should be able to use the education benefit derived from her deceased
husband while still serving on active duty. Currently, the active duty
widow must resign from the military in order to use the derived
educational benefit. GSW recommends that this legislation assure this
inequity is fixed.
In conclusion, we do not want our widows to be forgotten. Whenever
the ultimate sacrifice is given, there is family left behind. In the
same way we have asked some to give their lives, we have also asked
some to continue their lives with a chasm so large it is difficult to
transgress. Let us show the spirit of this nation by not forgetting
these widows, whose numbers grow daily.
I thank this Committee for using this hearing as one more avenue of
awareness of issues facing survivors daily. We will be happy to work
with the Committee on this initiative. Thank you.
__________
Prepared Statement of James C. McKay,
Senior Counsel, Covington & Burling, Washington, DC
Mr. Chairman and Members of the Subcommittee:
This statement, in support of S. 2694, responds to some of the
issues raised in the opposition filed on behalf of the Disabled
American Veterans by Joseph A. Violante. I will not respond to the ad
hominem attacks on the ethics of lawyers, except to state that the type
of unethical conduct predicted by the DAV and a plurality of four
justices of the Supreme Court in Walters v. National Association of
Radiation Survivors, 473 U.S. 395 (1985), heavily relied upon by the
DAV would be unlikely to occur in view of the rules currently governing
the conduct of lawyers throughout the United States.
I served on active duty in the United States Naval Reserves from
December 15, 1941, to October 1945. I received an LLB from Georgetown
University School of Law in February 1947. Since that date, I have
continuously practiced law with the Washington, D.C., firm of Covington
& Burling, with the exception of a period of service as an Assistant
United States Attorney for the District of Columbia, and a period of
service as an Independent Counsel.
I have represented numerous veterans on a pro bono basis for more
than 10 years before the court now known as the United States Court of
Appeals of Veterans Claims (CAVC). That representation involved
becoming familiar with numerous CAVC opinions and opinions of the
United States Court of Appeals for the Federal Circuit. In connection
with that representation I became aware of the anachronistic and often
prejudicial law that bars veterans from hiring lawyers to represent
them during the crucial early phases of the Department of Veterans
Affairs administrative process. That knowledge led me to research the
origin of this uniquely restrictive law. I wondered why this particular
class of United States citizens, owed such a large debt of gratitude by
their Government, should be denied the basic important right to hire
legal counsel.
I could think of no reason why any individual or any group of
individuals would support such an obviously discriminatory rule of law.
It came as a surprise when I learned that the law has vigorous support,
not only of organizations of veterans, but also of the Department of
Veterans Affairs. For example, a 2003 House Bill (H.R. 3492), which
would have allowed the employment of lawyers by veterans throughout the
entire VA administrative process, was opposed by the VA and by service
organizations.
The DAV asserts in the third paragraph of his statement that
``veterans should be able to file claims for disability benefits and
receive fair decisions from the Department of Veterans Affairs (VA)
without the necessity to hire and pay a large portion of their benefits
to lawyers.'' There if no foundation for the premise of that statement.
Under the provisions of S. 2694, there would be no ``necessity'' that
veterans hire lawyers. Rather, each veteran would have the choice of
hiring a lawyer or not hiring a lawyer. Likewise, there is no basis for
the demeaning conclusion that veterans would choose to hire a lawyer to
satisfy an ``emotional gratification of having the right to choose
representation by a lawyers.''
The third paragraph of the DAV's statement continues by stating
that ``Congress designed the current administrative claims process to
be non-adversarial and pro-veteran.'' The current administrative claims
process is based on a law enacted in 1862, which limited to $5 the fee
that legally could be charged a veteran. In 1864, the fee limit was
raised to $10, where it remained for 124 years, when the current system
was enacted, allowing no fee to be charged until after the first final
decision of the Board of Veterans' Appeals. Criminal penalties were
provided for the violation of all of those discriminatory laws.
The main thrust of the DAV's argument relies completely on an
outdated statement in S. Rep. No. 100-418, at 63-64 (1988), which, in
turn, relied completely on the plurality opinion of four justices of
the Supreme Court in Walters, issued twenty-one years ago. The DAV's
statement quotes lengthy passages from that opinion, which included
quotations from the Supreme Court's opinions in Gagnon v. Scarpelli,
411 U.S. 778, 787-788 (1973), and Wolff v. McDonnell, 418 U.S. 539, 570
(1974).
The DAV statement does not mention that the plurality decision in
Walters was based largely on the amazing conclusion that lawyers are
not needed because service organizations representatives (who charge no
fee) are fully capable of representing veterans for the reason that
``complex'' cases constituted a ``tiny fraction'' of the total cases
pending before the VA. (473 U.S. at 329-330). The plurality of justices
proclaimed that the medical questions relating to the degree of
disabilities of veteran claimants were overwhelmingly simple, and that
complex medical issues seldom arose in VA administrative proceedings.
(Ibid.)
The plurality justices' view of the simplicity of veterans claims
was at odds with the Supreme Court's view stated eleven years earlier
in Johnson v. Robinson, 415 U.S. 361, 370 (1974), where the Court's
decision relied on a statement of the Administrator of the Veterans
Administration in support of the 1979 amendment to 38 U.S.C. sec. 361
(1974), that, ``in the adjudication of compensation and pension claims,
a wide variety of medical, legal, and other technical questions
constantly arise which require expert examiners of considerable
training and experience and which are not readily susceptible of
judicial standardization.''
Daniel L. Cooper, then Under Secretary for Benefits, Department of
Veterans Affairs, in testimony before the House Veteran's Affairs
Committee on November 3, 2005, stated that the ``number of disabilities
per claim submitted by veterans has increased significantly, making
claims more complex.'' He went on to describe the influx of ``new and
more complex disability claims based on environmental and infectious
risks, traumatic brain injuries, complex combat injuries, involving
multiple body systems, concerns about vaccinations and other
conditions.'' He referred to the aging of the veteran population, who
were service connected for diabetes, as adding to the complexity of
claimed disabilities. He noted that ``more than 220,000 veterans are
now service connected for diabetes.'' Mr. Cooper went on to say that
the number of veterans submitting claims for PTSD through fiscal year
2005 had increased from 134,000 to 245,000. ``These cases present
unique processing complexities because of evidentiary requirements to
substantiate the event causing the stress disorder.''
In Kirkendall v. Department of the Army, 412 F.3d 1273, 1277 (Fed.
Cir. 2005), the Federal Circuit noted that the Veterans Employment
Opportunities Act of 1998, 5 U.S.C. sec 333a, ``is less detailed than
the highly complex scheme used to provide benefits for veterans.''
The DAV's reliance on Gagnon and Wolff is equally misplaced. The
Gagnon case was decided 33 years ago. The petitioner was not a veteran.
He was a felony probationer who was arrested after committing a
burglary. The case involved the due process rights of felony parolees
in parole revocation proceedings. The Wolff case was decided 32 years
ago. The petitioner was a Nebraska prisoner, who challenged the
constitutionality of the Nebraska prison disciplinary proceedings. The
Supreme Court said that the prisoners' rights were ``subject to
restrictions imposed by the nature of the regime in which they have
been lawfully committed.'' The Court said further that the proceedings
``take place in a closed tightly controlled environment peopled by
those who have chosen to violate the criminal law and who have been
lawfully incarcerated for doing so.'' (418 U.S. at 561)
It was misleading in the extreme for the DAV to quote selectively
from those three Supreme Court opinions, and not tell the Committee the
whole story. To liken the due process rights of a paroled felon and an
incarcerated prisoner with those of a veteran, who has honorably served
his or her country is completely unfounded, and insulting to say the
least.
It is urged that members of the legal staff of this Committee read
these three Supreme Court decisions, if they have not done so. It will
quickly be seen that those decisions provide no substantial support for
the DAV's arguments against the enactment of S. 2639.
The desirability of permitting veterans to employ lawyers during
the early proceedings before the VA has been recognized by those in
best position to perceive the prejudicial effect of the current
system--the Judges presiding over the CAVC.
They have seen at first hand the costly delays and prejudices that
result when issues and arguments are not raised before the VA prior to
appeals to the Court. Thus, Chief Judge Frank Nebeker, in a concurring
opinion in Matter of Kenneth B. Mason Jr., 12 Vet. App. 135 (1999),
stated that ``the Court experience. . . over the past 9 years''
convinced him that ``the time was ripe for a reexamination of the role
of attorneys in the benefits adjudication process and whether this
Court should have the responsibility to oversee the matter of fees
charged by those attorneys.'' Judge Nebeker was troubled by ``the
limited role lawyers are permitted (or may be paid) to play in the
adjudication of veterans benefits.'' (Id. at 137) The opinion went on
to say:
``When judicial review was established 10 years ago, there was
apparent concern on the part of Congress that opening the door to
lawyer representation, even in a limited way, was fraught with
potential peril that at least some oversight of the attorney-client
relationship was necessary.'' (Id. at 137)
Judge Nebeker questioned the need ``effectively to restrict lawyer
representation by proscribing the charging of fees prior to BVA
decision and the oversight of fee agreements by the Court.'' He
continued by saying:
``In the absence of any empirical or statistical data, one can only
wonder whether Congress presumed that the bar would act
unprofessionally or would replace the services offered gratis by
veterans service groups. If the former, it is an unfounded indictment
based on mistrust. If the latter, it is evidence of a desire to prevent
the bar from trespassing upon protected turf. In either case, now that
we have had nearly 10 years of experience, a questioning of the basic
premise is in order.'' (Ibid.)
Judge Nebeker then referred to the Court's years of experience in
reviewing Board denials of benefits. He stated:
``The Court continues to see many appeals, if counsel were
realistically permitted to represent a claimant during the adjudication
process before a final BVA decision, an appeal would be unnecessary or
seen as futile by the applicant; however, with the present restriction
on lawyer representation, an error at the VA level may not be
discovered until years later where, with counsel, it might well have
been prevented at the outset. Thus, restricting realistic access to
counsel until after a final BVA decision can cause years of delay both
in adjudication before the VA and in discovering error through
appellate litigation, only to have the matter returned to the VA for
readjudication. This happens in many appeals.
``Effectively limiting lawyer representation until after a BVA
final decision and after oversight of fee agreements is, quite
arguably, unnecessarily paternalistic.'' (Ibid.)
In a 2004 interview, then Chief Judge Donald L. Ivers, stated that
lawyers ``have provided tremendous assistance'' in cases before the
Court. ``The Court has historically taken a position recognizing the
involvement of lawyers before the VA could be very helpful . . . , and
I concur. Tommy: Issue No. 4. 2004.
Retired Judge Ronald Holdaway, also a former General Counsel of the
VA, speaking at the CAVC Eighth Judicial Conference, expressed his
support for an amendment of 38 U.S.C. sec. 5094, allowing lawyers to
represent veterans before the VA.
After pointing out that ``all too frequently you get cases that
have been through the system seven or eight or nine times where nobody
is really focused on what the issue is or they've lost on an issue.''
Judge Holdaway said:
``If you get lawyers involved at the beginning, you can focus on
what is this case about. I think you would get better records, you
would narrow the issue, there would be screening . . . But the
fundamental reason, why should veterans be treated differently from
anyone else?''
Speaking from an appellate judges point of view, Judge Holdaway
stated further:
``It would be a lot easier for an appellate judge to review cases
where counsel had been involved; where there had been better building
of the record; where the issues had been narrowed; and where there had
been a certain amount of screening going on when counsel explains to
his client whether he's got a good case or not. I think all those would
certainly be helpful to appellate judges.''
Thank you for considering the foregoing views which are presented
in the interest of the thousands of veterans who have filed claims for
benefits for service-connected disabilities, and those who will file
such claims in the future.
__________
Prepared Statement of the Paralyzed Veterans of America
Chairman Craig, Ranking Member Akaka, and Members of the Committee,
Paralyzed Veterans of America (PVA) would like to thank you for the
opportunity to submit a statement for the record on S. 2562, the
``Veterans' Compensation Cost-of-Living Adjustment Act;'' S. 2694, the
``Veterans' Choice of Representation Act;'' S. 2659, the ``Native
American Veterans Cemetery Act;'' S. 2416, the ``Veterans Employment
and Training Act;'' S. 2121, the ``Veterans Housing Fairness Act;'' and
proposed legislation. We appreciate the efforts of the Committee to
improve the benefits available for veterans.
S. 2562, THE ``VETERANS' COMPENSATION COST-OF-LIVING ADJUSTMENT ACT''
PVA supports S. 2562, the ``Veterans' Compensation Cost-of-Living
Adjustment Act of 2006.'' This bill would increase the rates of
compensation for veterans with service-connected disabilities and the
rates of dependency and indemnity compensation for widows of certain
disabled veterans. As we have done in the past, we oppose again this
year the provision rounding down the cost-of-living adjustment to the
nearest whole dollar. Continuing to round down these benefits year
after year only serves to erode the value of them. Furthermore, this
provision forces veterans to bear some of the burden of cost-savings
for the Federal Government.
S. 2694, THE ``VETERANS' CHOICE OF REPRESENTATION ACT''
PVA supports the principle that veterans should have the choice to
hire attorneys; however, we do not believe that S. 2694 offers the best
approach to addressing this issue.
The restrictions against veterans hiring lawyers to represent them
date back to the Civil War. At that time the prohibition may have made
sense and was to protect veterans from unscrupulous lawyers who were
charging exorbitant fees to assist veterans in obtaining their
pensions. This law initially imposed a fee of $5, and it was later
raised to $10. This was considered a reasonable fee at the time and was
not eliminated until 1988 when Congress created the U.S. Court of
Veterans' Appeals, which later became the Court of Appeals for
Veterans' Claims. The creation of the Court led to a prohibition on
veterans hiring a lawyer until after the Board of Veterans' Appeals
rendered a final decision.
The reason for the statutory fee limitation, now a prohibition,
does not exist currently and has not existed for a long time. Today,
lawyers are highly regulated and subject to significant disciplinary
action if determined to have engaged in unscrupulous or unethical
conduct while engaged in the practice of law. We believe that VA's
attempt to mollify the push to change the law to give veterans the
choice to hire a lawyer falls short. A May 2004 letter from VA General
Counsel to Representative Lane Evans, Ranking Minority Member of the
House Committee on Veterans' Affairs, indicated that claimants can hire
and pay a lawyer for pre-application for benefits counseling under
current law. It is the VA General Counsel's position that as long as
the consultation occurred prior to the filing of the application for VA
benefits, and the lawyer did not prepare the application, there is no
violation of statutes. A law that would permit the veteran to hire a
lawyer for pre-application advice but denies him or her the ability to
continue with this paid representation is harmful to veterans and makes
no sense.
Today there are a number of Veterans' Service Organization (VSO)
service officers to assist veterans in accessing the full range of
benefits and services available to them. Veterans' Service
Organizations provide such services free-of-charge, and veterans are
free to choose which VSO they would like to assist them. Service
officers also help veterans access the many health care services
available through the VA. Likewise, they help veterans gain access to
assistive technology and other equipment to meet their accessibility
needs. The service officer and the veteran develop a unique
relationship through this interaction and will, we believe, continue to
serve in this important role even if veterans are given the choice to
hire a lawyer to represent them before the VA.
PVA believes that the most appropriate time for veterans to hire
and pay a lawyer to represent them is after a Notice of Disagreement is
filed and their initial application for benefits has been denied. This
is the time at which a lawyer's skills would be particularly helpful.
Furthermore, PVA is unaware of any other government benefits program
which prohibits claimants from hiring a lawyer to assist those
obtaining benefits. This is the position taken by H.R. 4914, the
``Veterans' Choice of Representation Act'' that has been introduced in
the House of Representatives by Representative Evans.
If this legislation or similar legislation is enacted, it is
imperative that the VA conduct a campaign to inform veterans of their
options. We believe that under the Evans' proposal, an information
brochure outlining the veteran's options following a Notice of
Disagreement could be included in the notification. This would allow
veterans to make a decision for themselves as to the type of
representation they would like through the rest of the claims
adjudication process.
While PVA appreciates the logic of the proposal outlined in S. 2694
of a veteran having the choice to hire a lawyer from the beginning of
the application process, PVA believes that this aspect of the Evans
bill is a good compromise by perpetuating the valuable role played by
VSOs and their service officers. It acknowledges and addresses some of
the concerns this issue has generated among the VSOs. This may even
encourage the VA to grant more meritorious claims upon initial
application.
But many issues remain to be addressed in any piece of final
legislation. One of the greatest questions is what will be considered
reasonable fees to the veteran? PVA believes that further guidance is
needed for what would constitute a reasonable fee for other than
contingency fee arrangements. We recommend that the Committee consider
language similar to that contained in Title 42 that governs recognition
of representatives before the Social Security Administration and the
fees that those representatives may collect. Specifically, 42 U.S.C.
406(a)(2) specifies that an attorney's or agent's fee will not be more
than 25 percent of the total amount of past-due benefits or $4,000,
whichever is less. Similar protections could be placed in the
legislation for veterans hiring attorneys. Additionally, specific
guidelines and regulations are critical before allowing this program to
begin. This must also include the preservation of the pro-claimant
aspects of the system.
Furthermore, we must not forget that responsibility for the claims
backlog rests with the Veterans Benefits Administration (VBA). This
claims adjudication process is not a faultless process. Moreover, VBA
suffers from too few staff and not enough resources to meet the demand
that is placed on the system. If full consideration is given for this
legislation, then adequate funding and staffing must also be included
in that discussion. Otherwise, the system is really no better off.
Whatever legislation is passed, we must ensure that the best
interests of the veteran are protected in the end. With this in mind,
it is critical that clear guidance on the basis for suspension of
veteran's representatives be established, whether they are lawyers,
agents or even a VSO National Service Officer. And it must be ensured
that no provision of the law will conflict with a lawyer's ethical
obligation to zealously represent his or her client's interests.
Though the original law severely restricting and finally
prohibiting payment to attorneys may have been valid in the past, PVA
believes that giving veterans the ability to choose and pay a
reasonable fee to a representative of their choosing after the initial
Notice of Disagreement is the right thing to do at this time, so long
as our above mentioned considerations are taken into account.
S. 2659, THE ``NATIVE AMERICAN VETERANS CEMETERY ACT''
PVA supports S. 2659 which would allow Indian tribal organizations
to apply for Federal grants to establish veterans' cemeteries on trust
lands. This legislation would essentially provide for the same
eligibility to Indian tribal organizations for these grants that states
currently have when they wish to construct a new cemetery.
s. 2416, the ``veterans employment and training act''
PVA fully supports S. 2416, the ``Veterans Employment and Training
Act of 2006.'' With the increases in new veterans entering the VA
system due to the current Global War on Terrorism, particularly the
huge increase in National Guardsmen and reservists becoming veterans,
every chance to expand the education opportunities for this widely
diverse group is critical. The ability to enter high technology
training that will lead to an occupation in this rapidly expanding
field will help not only the veteran, but the economic viability of
America. Increasing the ability to accelerate payments to receive this
training will provide veterans with the opportunity to more rapidly
enter the high technology field. It will also assist in our veterans'
rapid transition from military service to community citizen and is a
win for everyone. We also welcome the introduction of Senator DeWine's
legislation to make these similar accelerated payments available to
survivors and dependents of veterans.
S. 2121, THE ``VETERANS HOUSING FAIRNESS ACT''
PVA supports the provisions of S. 2121. This legislation would
authorize a veteran to use veterans' housing loan benefits to purchase
stock or membership in a development, project, or structure of a
cooperative housing corporation. In order to do so, the structure that
the veteran purchases must be in compliance with criteria set forth by
the Secretary of Veterans Affairs, and it must be a single-family
residential unit.
PVA would like to thank you for the opportunity to submit our views
on the important legislation pending before the Committee. We would be
happy to answer any questions that you submit for us in writing.
__________
Prepared Statement of Donald Sweeney, Legislative Director, National
Association of State Approving Agencies
INTRODUCTION
Chairman Craig, Ranking Member Akaka and Members of the Committee
on Veterans Affairs, this written testimony is provided in support of
two of the bills that were discussed at the hearing today. The National
Association of State Approving Agencies respectfully request that this
testimony be placed in the record on the proceedings of the hearing.
REMARKS
The Association is pleased to add its support to S. 2416, the
Veterans Employment and Training Act of 2006 and S. 3363, a bill to
extend the provisions of S. 2416. Specifically, S. 2416 amends title
38, United States Code, to expand the scope of programs of education
for which accelerated payment of educational assistance under the
Montgomery GI Bill may be used. Similarly, S. 3363 extends the
accelerated payment provision to survivors' and dependents' that are
eligible for assistance under the Chapter 35 program. Both of these
bills are significant improvements to the existing accelerated payment
provision of law, section 3014A of title 38, United States Code, which
limits payments to education leading to employment in high technology
industries.
In general, much has been done in recent years to provide
servicemembers, veterans and other eligible persons with greater
opportunities to use the education and training benefits to which they
are entitled. Yet, the nature of the today's global economy demands
that we continue to strive to help our workforce--especially our
veterans--to gain new knowledge and learn new skills in order to
maximize their contributions to the Nation. The provisions of S. 2416
and S. 3363 help to provide these new learning opportunities in
occupational areas where shortages currently or will exist.
CLOSING
Thank Mr. Chairman, Ranking Member Akaka and Members of the
Committee, for the opportunity to provide written testimony on bills
being considered by the Committee. Additionally, we thank you for the
leadership and support that you provide to our Nation's military
personnel, veterans and their dependents.
__________
Prepared Statement of Joseph A. Violante, National Legislative
Director, the Disabled American Veterans
Mr. Chairman and Members of the Subcommittee:
On behalf of the 1.3 million members of the Disabled American
Veterans (DAV), I respectfully provide our comments on the following
bills for the record.
S. 2694 would amend existing law to permit attorneys and agents to
charge claimants for services rendered in the preparation,
presentation, and prosecution of claims. It would authorize the
Secretary of Veterans Affairs to collect registration fees, set
limitations for fees charged claimants, prescribe standards of conduct,
and expand grounds for suspension or exclusion from further practice
for attorneys and agents providing such services. It would subject
veterans service organization representatives to the same rules for
suspension.
With removal of the limitation in current law that authorizes
attorneys and agents to charge claimants fees only for services
provided after the date on which the Board of Veterans' Appeals (BVA)
first makes a decision in the case, fees could be charged at all stages
of the administrative claims process. The Disabled American Veterans
opposes this provision.
Veterans should be able to file claims for disability benefits and
receive fair decisions from the Department of Veterans Affairs (VA)
without the necessity to hire and pay a large portion of their benefits
to lawyers. Congress designed the current administrative claims process
to be non-adversarial and pro-veteran. Unlike litigation in the courts
where the parties must discover and produce their own evidence and
affirmatively plead all the legal technicalities on which they base
their suit, Congress obligated VA to assist the claimant in obtaining
pertinent evidence and placed the duty upon VA to consider all relevant
law and avenues of entitlement.
Disability compensation and other benefits for veterans and their
families should go to the intended beneficiaries for the purchase of
the necessities of life and to meet other needs, not into the pockets
of lawyers. That is the very reason the system was designed to work
without lawyers and the wisdom behind the law that has for so long
prohibited lawyers from charging veterans for filing and prosecuting
claims: ``There would seem to be no need for the assistance of an
attorney in order to initiate the claims process by completing and
filing an application. Moreover, even if the initial decision is
adverse, the Committee believes that it may be unnecessary for a
claimant to incur the substantial expense for attorney representation
that may not be involved in appealing the case for the first time to
the BVA. The claimant may well prevail, as many claimants currently do,
without legal representation when the case is first before BVA.'' S.
Rep. No. 100-418, at 63-64 (1988). ``The Government interest, which has
been articulated in congressional debates since the fee limitation was
first enacted in 1862 during the Civil War, has been this: that the
system for administering benefits should be managed in a sufficiently
informal way that there should be no need for the employment of an
attorney to obtain benefits to which a claimant was entitled, so that
the claimant would receive the entirety of the award without having to
divide it with a lawyer.'' Walters v. National Ass'n of Radiation
Survivors, 473 U.S. 305, 321 (1985). By allowing lawyers to charge
veterans for claims assistance, this bill abandons the commitment to a
system that delivers benefits to veterans without necessity to pay
lawyers.
Under the best of circumstances, mistakes will be made in a mass
adjudication system such as VA's, but claimants can guard against such
mistakes through free representation from recognized veterans
organizations. Veterans organization representatives also provide free
advice, claims filing assistance, and a wide range of other assistance
with matters not involving monetary awards. Lawyers will have no reason
to assist veterans in matters that are not fee-producing. They will
naturally limit their assistance to matters where there is potential
for receiving for themselves a portion of the claimants' monetary
benefits. Claimants who obtain the services of lawyers rather than
through appointment of a veterans service organization representative
may very well find themselves without the availability of free
assistance in routine matters that they receive from veterans service
organization representatives.
We believe enactment of this bill will have far reaching
detrimental effects that will far outweigh the emotional gratification
of having the right to choose representation by a lawyer. The Court
recognized the probable adverse effects in National Ass'n of Radiation
Survivors:
There can be little doubt that invalidation of the fee limitation
would seriously frustrate the oft-repeated congressional purpose for
enacting it. Attorneys would be freely employable by claimants to
veterans' benefits, and the claimant would as a result end up paying
part of the award, or its equivalent, to an attorney. But this would
not be the only consequence of striking down the fee limitation that
would be deleterious to the congressional plan.
A necessary concomitant of Congress' desire that a veteran not need
a representative to assist him in making his claim was that the system
should be as informal and nonadversarial as possible. . . . The regular
introduction of lawyers into the proceedings would be quite unlikely to
further this goal. Describing the prospective impact of lawyers in
probation revocation proceedings, we said in Gagnon v. Scarpelli, 411
U.S. 778, 787-788, 93 S.Ct. 1756, 1762, 36 L.E.d.2d 656 (1973):
``The introduction of counsel into a revocation proceeding will
alter significantly the nature of the proceeding. If counsel is
provided for the probationer or parolee, the State in turn will
normally provide its own counsel; lawyers, by training and disposition,
are advocates and bound by professional duty to present all available
evidence and arguments in support of their clients' positions and to
contest with vigor all adverse evidence and views. The role of the
hearing body itself . . . may become more akin to that of a judge at a
trial, and less attuned to the rehabilitative needs of the individual.
. . . Certainly, the decisionmaking process will be prolonged, and the
financial cost to the State--for appointed counsel, . . . a longer
record, and the possibility of judicial review will not be
insubstantial.''
We similarly noted in Wolff v. McDonnell, 418 U.S. 539, 570, 94
S.Ct. 2963, 2981, 41 L.Ed.2d 935 (1974), that the use of counsel in
prison disciplinary proceedings would ``inevitably give the proceedings
a more adversary cast. . . .''
Knowledgeable and thoughtful observers have made the same point in
other language:
``To be sure, counsel can often perform useful functions even in
welfare cases or other instances of mass justice; they may bring out
facts ignored by or unknown to the authorities, or help to work out
satisfactory compromises. But this is only one side of the coin. Under
our adversary system the role of counsel is not to make sure the truth
is ascertained but to advance his client's cause by any ethical means.
Within the limits of professional propriety, causing delay and sowing
confusion not only are his right but may be his duty. The appearance of
counsel for the citizen is likely to lead the government to provide one
or at least to cause the government's representative to act like one.
The result may be to turn what might have been a short conference
leading to an amicable result into a protracted controversy.
``These problems concerning counsel and confrontation inevitably
bring up the question whether we would not do better to abandon the
adversary system in certain areas of mass justice. . . . While such an
experiment would be a sharp break with our tradition of adversary
process, that tradition, which has come under serious general challenge
from a thoughtful and distinguished judge, was not formulated for a
situation in which many thousands of hearings must be provided each
month.'' Friendly, ``Some Kind of Hearing,'' 123 U.Pa.L.Rev. 1267,
1287-1290 (1975).
Thus, even apart from the frustration of Congress' principal goal
of wanting the veteran to get the entirety of the award, the
destruction of the fee limitation would bid fair to complicate a
proceeding which Congress wished to keep as simple as possible. It is
scarcely open to doubt that if claimants were permitted to retain
compensated attorneys the day might come when it could be said that an
attorney might indeed be necessary to present a claim properly in a
system rendered more adversary and more complex by the very presence of
lawyer representation. It is only a small step beyond that to the
situation in which the claimant who has a factually simple and
obviously deserving claim may nonetheless feel impelled to retain an
attorney simply because so many other claimants retain attorneys. And
this additional complexity will undoubtedly engender greater
administrative costs, with the end result being that less Government
money reaches its intended beneficiaries.
473 U.S. AT 323-26
It is understandable why some attorneys advocate changing the
system. Perhaps veterans who advocate it do so under the belief that
they would generally receive better representation by attorneys. Data
on the subject simply do not support that belief. Attorneys presumably
choose only the cases they believe more meritorious, where most
veterans service organizations essentially represent any claimant and
do not refuse representation in cases merely because of a lower
likelihood of favorable outcome. Nonetheless, historically and
currently, attorneys still have no greater success rate in BVA appeals,
for example, than veterans service organization representatives. In
2005, the average BVA allowance rate among veterans service
organizations was 21.7 percent. The allowance rate for attorneys was
21.1 percent. Average allowance rates among the veterans service
organizations are again higher than allowance rates for attorneys thus
far in 2006. With a 21.3 percent allowance rate as of the end of April
2006, attorneys are below the overall average BVA allowance rate for
all appeals including those with no representation of 21.6 percent.
Beyond our opposition to removal of restrictions on attorneys'
fees, we have other concerns about provisions of S. 2694. Section 2(b)
of the bill would amend section 5904(b) of title 38, United States
Code, by adding more grounds for suspending or excluding attorneys and
agents from further practice. These additional grounds are: (1) failure
of the attorney or agent ``to conduct himself or herself with due
regard for the non-adversarial nature of any proceeding before the
Department,'' (2) submittal of ``frivolous claims, issues, or
arguments,'' and (8) failure ``to comply with any other condition
specified by the Secretary in regulations prescribed by the Secretary
for purposes of this subsection.'' Section 2(a)(2) of the bill provides
that veterans organization representatives may be suspended on the
grounds in section 5904(b) applicable to suspension and exclusion from
further practice in the case of attorneys and agents.
The Secretary of Veterans Affairs has promulgated a comprehensive
rule governing suspension and termination of accreditation of
representatives. We believe additional statutory provisions for
suspension of veterans service organization representatives are
unnecessary. Moreover, we believe the new grounds that would be added
by section 2(b) of the bill are so broad and vague as to be difficult
to follow or enforce. For example, it is unclear what would be
considered an action without ``due regard for the non-adversarial
nature of any proceeding before the Department.'' In addition, given
that VA has a duty to seek supporting evidence for a veteran's claim,
the law does not require that such claim be accompanied by evidence.
Attorneys, agents, and representatives will sometimes be unable to
determine the factual merits of a claim before it is submitted. Under
these circumstances and many others that are unlike those of more
traditional proceedings, it will be more difficult to define frivolous
claims. We believe these additional rules will unnecessarily complicate
the process.
We also have some concern, should the bill be enacted, that it
authorizes VA oversight only for contingency fee agreements under which
the Secretary is to pay the attorney directly from past-due benefits
awarded on the basis of the claim. We believe this leaves open the
possibility for abuse.
For these reasons, we believe enactment of these provisions will
profoundly change the administrative claims process to the detriment of
veterans and other claimants. We believe there is a potential for wide-
ranging unintended consequences that will be beneficial for neither
claimants nor the Government. Beyond the cost to veterans, added
administrative costs for VA are likely to be substantial, without
commensurate added advantages or benefits for either.
S. 2562, the Veterans' Compensation Cost-of-Living Adjustment Act
of 2006, would increase, effective as of December 1, 2006, the rates of
disability compensation for veterans with service-connected
disabilities and the rates of dependency and indemnity compensation for
survivors of certain service-connected disabled veterans. However,
within the cost-of-living adjustment (COLA) measure is a provision that
``Each dollar amount increased under paragraph (1), if not a whole
dollar amount, shall be rounded to the next lower whole dollar
amount.'' (The DAV supports the overall intent of this bill.) To
maintain the value of veterans' benefits, they must be adjusted to keep
pace with the rise in the cost of living. Rounding down the adjusted
rates to the next lower dollar amount, however, will gradually erode
the value of benefits over time and thus benefits will not keep pace
with the rise in the cost of living. Rounding down veterans' cost-of-
living adjustments unfairly targets veterans for convenient cost
savings for the government. Additionally, the DAV supports legislation
that would provide for automatic annual adjustments, based on increases
in the cost of living, for specially adapted housing and automobile
grants to assist eligible disabled veterans and servicemembers. These
grants must be adjusted annually if they are to keep pace with the rise
in the cost of living and remain meaningful benefits.
Because the issues addressed within the following bills are not
specific to its legislative focus, the DAV has no resolutions
pertaining to these measures. However, because they would benefit
veterans and their family members, the DAV has no objection to their
favorable consideration:
S. 2659, the Native American Veterans Cemetery Act of
2005, would amend title 38, United States Code, to provide for the
eligibility of Indian tribal organizations for grants for the
establishment of veterans' cemeteries on trust lands.
S. 2416, the Veterans Employment and Training Act of 2006,
would provide flexibility in the programs of education for which
accelerated payments of educational assistance under the Montgomery GI
Bill (MGIB) may be used. Specifically, it would allow MGIB payments to
be used for tuition for education programs that lead to certification
or licensure in an occupation, or leads to occupation in an industry
that has a critical shortage of employees or is an industry that is
experiencing a high growth rate.
S.--, draft legislation, would authorize accelerated
payments of educational assistance for survivors and dependents of
veterans who died or are permanently and totally disabled as a result
of a disability arising from active military service. Specifically, it
would allow such payments to be used for tuition for education programs
that lead to certification or licensure in an occupation in a high
technology field, or leads to occupation in an industry that has a
critical shortage of employees or is an industry that is experiencing a
high growth rate.
S. 2121, the Veterans' Housing Fairness Act of 2005, would
provide housing loan benefits for the purchase of residential
cooperative apartment units.
We appreciate the Committee's interest in ensuring the
effectiveness of programs for disabled veterans, and we appreciate the
opportunity to present DAV's views.
National Organization
of Veteran's Advocates,
May 22, 2006.
Hon. Larry Craig,
Chairman, Committee on Veterans' Affairs,
Russell Senate Office Building,
Washington, DC.
Dear Mr. Chairman: I am writing to you on behalf of the National
Organization of Veterans' Advocates to offer the following testimony in
support of Senate Bill S. 2694. This bill, if enacted, would provide
veterans with the choice to hire counsel when they file their initial
claims at the Regional Office. The Floor Statement submitted with this
bill accurately explained that the point at which a veteran can hire
counsel under current law is too late in the process for counsel to be
truly effective because by that time the evidentiary record is
effectively closed. . .if attorneys were retained at an earlier stage
of the process, they could be helpful in obtaining and presenting
necessary evidence and in ensuring that VA timely and accurately
processes claims.
NOVA believes that veterans should have the right to choose whether
they wish to hire a lawyer. Every year NOVA members receive calls from
many veterans requesting assistance with their claims that are pending
before the VA. Unfortunately, given the fee limitations in 38 U.S.C.
5904, our members are not able to assist veterans at this critical
stage of the proceedings. The best opportunity for an attorney to
assist a veteran is before the Board of Veterans' Appeals denies the
claim because the record is not closed. S. 2694 would give the veterans
the choice to hire counsel during this crucial time period.
The United States Court of Appeals for Veterans Claims awarded NOVA
the Hart T. Mankin Distinguished Service Award in 2000. In presenting
the award, the Board of Judges specifically recognized that NOVA's
continuing legal education programs provide valuable training for
attorneys. For over 10 years, NOVA has offered continuing legal
education, and it is the founding principle that led to the formation
of our organization. Therefore, NOVA supports the provisions of this
bill that require the VA to ensure that all attorneys who practice
before the VA have adequate training or experience in this specialized
area of the law.
While NOVA fully supports S. 2694, we urge you to examine the
following issues. First, as proposed, S. 2694 would only apply to
veterans' claims filed after the effective date of the legislation. The
proposed bill would artificially create two categories of veterans
based upon date of filing: those permitted to hire counsel because
their claims are filed after the date of enactment, and those who are
not allowed to hire counsel. According to a recent GAO study, there
were three hundred forty-six thousand veterans claims pending at the
end of fiscal year 2005. All of those veterans would be precluded from
hiring counsel under S. 2694 as proposed. Such a limitation of the
right to counsel appears to significantly undermine the rationale for
and purpose of the legislation. Moreover, as VA claims can take years
if not decades to resolve this dichotomy will exist for years to come.
It is not at all apparent why a veteran seeking a straightforward
increase in a rating filed the day after the legislation becomes
effective should have a right to hire counsel, while a veteran seeking
the same benefit the day before the act becomes effective should not.
NOVA urges you to make the law effective for all veterans who have
claims pending on the date of enactment as well as for those veterans
who file claims after the date of enactment.
Second, the bill should include a provision which eliminates the
permissive language in 38 U.S.C. 5904. When 5904 was originally
enacted the law provided that the Secretary may withhold and pay a 20
percent contingent fee to the attorney. NOVA urges that the permissive
language of 5904 ``may'' be changed to a mandatory statement that the
Secretary ``shall'' withhold and pay.
For these reasons, NOVA strongly supports the Veterans Choice of
Representation Act of 2006 and urges you to consider these comments as
you work with your colleagues in the House to enact this legislation.
If you have any questions or need any assistance please feel free to
contact me. Thank you for your time and efforts on behalf of veterans.
Very truly yours,
Robert V. Chisholm,
Past President.
Navajo Nation Washington Office,
May 26, 2006.
Sen. Daniel Akaka,
U.S. Senate,
Washington, DC.
Dear Senator Akaka: On behalf of the Navajo Nation, I am writing to
thank you for the introduction on the S. 2659, the ``Native American
Veterans Cemetery Act of 2006.'' Currently, the Navajo Nation's only
Veterans cemetery is full and the Navajo Nation is without access to
grant funding establish and maintain a Veterans cemetery. Navajo
Veterans who wished to be laid to rest with military honors among
fellow Native American warriors must be laid to rest far from the
aboriginal homeland they fought to protect. S. 2659 will allow Native
American to be buried near their families and in their homeland.
Another important issue for Navajo veterans is access to Improved
Veterans health care. Currently, the Navajo Nation and the Veterans
Health Administration are discussing the proposed placement of a VA
health clinic within the Navajo Nation.
The Navajo Nation respectfully requests Senator Akaka's continued
support these two important measures. Furthermore, the Navajo Nation
Washington Office will continue to work to see additional support for
S. 2659 among Congress and the National American Indian Veterans
Services Organization, Inc.
Again, thank you for introducing S. 29 and the Navajo Nation looks
to your leadership for S. 2659's movement. If there are questions,
please feel free contact me at the Navajo Nation Washington Office at
(202) 775-0393.
Sincerely,
Sharon Clahchischilliage,
Executive Director.