<DOC>
[108 Senate Hearings]
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S. Hrg. 108-613
HEARING ON PENDING LEGISLATION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
JULY 10, 2003
__________
Printed for the use of the Committee on Veterans' Affairs
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COMMITTEE ON VETERANS' AFFAIRS
ARLEN SPECTER, Pennsylvania, Chairman
BEN NIGHTHORSE CAMPBELL, Colorado BOB GRAHAM, Florida
LARRY E. CRAIG, Idaho JOHN D. ROCKEFELLER IV, West
KAY BAILEY HUTCHISON, Texas Virginia
JIM BUNNING, Kentucky JAMES M. JEFFORDS, (I) Vermont
JOHN ENSIGN, Nevada DANIEL K. AKAKA, Hawaii
LINDSEY O. GRAHAM, South Carolina PATTY MURRAY, Washington
LISA MURKOWSKI, Alaska ZELL MILLER, Georgia
E. BENJAMIN NELSON, Nebraska
William F. Tuerk, Majority Chief Counsel and Staff Director
Bryant Hall Minority Chief Counsel and Staff Director
C O N T E N T S
----------
July 10, 2003
SENATORS
Page
Specter, Hon. Arlen, U.S. Senator from Pennsylvania, Chairman.... 3
Murray, Hon. Patty, U.S. Senator from Washington................. 1
Nelson, Hon. Bill, U.S. Senator from Florida..................... 3
Nelson, Hon. E. Benjamin, U.S. Senator from Nebraska............. 5
WITNESSES
Duehring, Craig W., Principal Deputy Assistant Secretary for
Reserve Affairs, Department of Defense......................... 6
Prepared statement........................................... 7
Response to written questions submitted by Hon. Jim Bunning.. 9
Cooper, Daniel L., Under Secretary for Benefits, Department of
Veterans Affairs; accompanied by John W. Nicholson, Under
Secretary for Memorial Affairs; John H. Thompson, Deputy
General Counsel; and Ron Henke, Director of Compensation....... 10
Prepared statement........................................... 11
Response to written questions submitted by Hon. Jim Bunning.. 26
Wilkerson, Phillip R., Deputy Manager of Operations and Training,
Veterans Affairs and Rehabilitation, The American Legion,
prepared statement............................................. 26
Jones, Richard, National Legislative Director, AMVETS, prepared
statement...................................................... 35
Surratt, Rick, Deputy National Legislative Director, Disabled
American
Veterans, prepared statement................................... 40
Blake, Carl, Associate Legislative Director, Paralyzed Veterans
of America, prepared statement................................. 52
Cullinan, Dennis M., Director, National Legislative Service,
Veterans of
Foreign Wars, prepared statement............................... 58
APPENDIX
Inouye, Hon. Daniel K., U.S. Senator from Hawaii, prepared
statement...................................................... 63
Bunning, Hon. Jim, U.S. Senator from Kentucky, prepared statement 64
Clinton, Hon. Hillary Rodham, U.S. Senator from New York,
prepared
statement...................................................... 64
Filner, Hon. Bob, U.S. Representative from California, prepared
statement...................................................... 65
Evans, Robert D., Director of Governmental Affairs, American Bar
Association, prepared statement................................ 65
HEARING ON PENDING LEGISLATION
----------
THURSDAY, JULY 10, 2003
United States Senate,
Committee on Veterans' Affairs,
Washington, DC.
The committee met, pursuant to notice, at 3:17 p.m., in
room SR-418, Russell Senate Office Building, Hon. Patty Murray
presiding.
Present: Senators Specter, Murray, and E. Benjamin Nelson
of Nebraska.
Also Present: Senator Bill Nelson of Florida.
OPENING STATEMENT OF HON. PATTY MURRAY,
U.S. SENATOR FROM WASHINGTON
Senator Murray. This hearing will come to order. Let me
just start by thanking all of our witnesses and the numerous
people in attendance today for this hearing. I apologize for
all of us who are late and unable to attend. There are so many
committee hearings going on right now. Appropriations is
marking up two hearings. We have had votes on the floor off and
on and Senators are really struggling to try and get to all of
the committee hearings. It does not mean anything to any of the
bills that you are all here to support or to speak about. The
Senators, I know, share with me a deep concern about making
sure that these issues get addressed within this Congress. So I
will note the many people in attendance at this office as well
as our witnesses and let the other committee members know that
you are here. We hope that several more will be arriving
shortly.
I am going to speak to one bill in particular. I know
Senator Nelson has a comment, and we will see at that point
whether we have been able to pull away any Senators from their
other very serious obligations today.
I am a co-sponsor of many of the bills before the Committee
today, but I wanted to highlight one of them in particular, S.
517, which is the Francis W. Agnes Prisoner of War Act of 2003.
This bill will correct a glaring injustice facing some former
American prisoners of war, and it will reaffirm our commitment
to all those Americans who were held in captivity while
fighting for our freedom.
We know that those who have been prisoners of war often
suffer medical problems many years later as a result of their
captivity under inhumane conditions. Unfortunately, it took a
long time for many ex-POW's to get the help that they need and
that they deserve. In 1981, Congress began addressing this
problem. It established certain medical conditions as
presumptive for POW's, but it required a very high level of
research certainty, 95 percent, before veterans could get
benefits based on their medical problems. As a result, many
health problems common in POW's were and still are denied
coverage.
Congress has taken some steps to fix this. It changed the
standard for veterans of some conflicts. For example, the
Vietnam veterans who were exposed to herbicides, Gulf War
veterans who were exposed to unknown factors, now get the help
that they need.
Unfortunately, Congress never fixed this problem for
veterans of the Korean Conflict and World War II. So today
these brave former POW's are facing medical conditions because
of their captivity, but they are being held to a much higher
standard for care than veterans of other conflicts. It is not
fair and my bill will fix that glaring injustice.
I want to say a word about the veterans who are currently
punished by the status quo. Today, World War II and Korean
Conflict POW's are dying at a rate of 10 veterans a day.
85,000, 70 percent have already died in the 50 years since
these wars, most without receiving any disability benefits.
Now, I am certainly not the only person who is working to
correct this problem. The VA POW Advisory Committee, which was
created by Congress back in 1981, has stated it is blatantly
wrong to hold World War II and Korean Conflict POW's to a
different and more stringent standard than Vietnam and Gulf War
veterans. It has recommended that all POW's be held to the same
medical presumption standards.
The proposed legislation, S. 517, the Prisoner of War
Benefits Act of 2003 will help correct this injustice facing
our ex-POW's of World War II and the Korean Conflict. First, it
would add five additional medical conditions to the presumptive
list. Secondly, it would eliminate the minimum time held as a
POW requirement to qualify for benefits. And finally, this
legislation is complementary to legislation introduced in the
House of Representatives by Congressman Michael Bilirakis, H.R.
348. Here in the Senate, our bill is endorsed by the American
ex-Prisoners of War.
I also want this Committee to know that I named this bill
after a great champion for veterans, and particularly for our
former POW's. Fran Agnes survived as a prisoner of war for
three-and-a-half years. He was a survivor of the Bataan death
march and two POW camps in the Philippines. Fran Agnes lived a
life of service to his family, to his fellow veterans, and to
his community. In all of the time Fran and I spent together, he
never asked me to do anything for himself. It was always
something he wanted me to do for other veterans and their
families.
He often asked me to help the widows of our veterans, he
asked me to support the POWs' lawsuit against the Japanese
companies that profited from slave labor during World War II,
and he would ask me about helping another veteran who might be
having a problem with the VA. On February 9th of this year,
Fran passed away and was laid to rest in the Tahoma National
Cemetery with full military honors. Passing S. 517 will be a
fitting tribute to Fran Agnes and all the other thousands of
veterans who endured as prisoners of war and sacrificed for our
liberty and our freedom.
Again, a number of hearings are being held today and I will
not be able to stay very long for this committee. I know we are
waiting for other committee members to attend, but I want to
register my strong support for S. 517. It really is the right
thing to do for those who have sacrificed their liberty to
protect our country.
With that I will recognize Senator Nelson.
Chairman Specter. Madam Chairman, may I interrupt for just
a moment?
[Laughter.]
Senator Murray. I would like to introduce to you the
Chairman of the Committee.
OPENING STATEMENT OF HON. ARLEN SPECTER,
U.S. SENATOR FROM PENNSYLVANIA
Chairman Specter. First, I would like to thank you for
acting as chairwoman, and secondly to explain to everybody
assembled, I think as you already know, the Judiciary Committee
is in the midst of marking up the asbestos bill. We are under
great pressure to try to attend that markup. They require us to
attend, even beyond the so-called quorum, to be there and
participate in votes on amendments. When this hearing was
scheduled there was no expectation that the Judiciary Committee
would be meeting this afternoon. Our customary practice is to
finish up the executive session of Judiciary in the morning.
But Senator Hatch has reconvened the committee and we are in
session. That, and voting, has accounted for the delay.
So I want to thank you, Senator Murray, for filling in.
Thank you. I am going to go back to the other hearing.
Senator Murray. Thank you, Mr. Chairman.
Senator Nelson.
OPENING STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA
Senator Nelson of Florida. Thank you, Madam Chairman. Madam
Chairman, I have run into a very serious situation that
requires a policy judgment on the part of the committee and the
Senate. Let me describe it.
Under existing law, a veteran's disability benefit cannot
be assigned to someone else. There is a reason for that. The
disability is to help the veteran with the particular
disability suffered as a result of wounds in the service to the
country. Therefore, existing law says that that veteran, that
disability benefit that comes to him monthly, to him or her,
should not be assigned and cannot be. So that is the intent of
the existing law.
But with laws, people find ways to get around them. What
has happened is that by the creation of a joint banking account
in the name of the veteran of which the monthly disability
payment is put into the bank, and by creating a joint bank
account with someone else, then they can take out that
disability payment. What, in fact, is happening is that
enterprises have been created by which they come to the veteran
and say, ``We know that you need some cash right now. If you
will give us the right to your veteran's benefit over the
course of the next X number of years, we will give you up-front
cash.''
The problem is, they do not give them an equal amount of
cash, and it is not even discounted at normal interest rates.
It is hugely discounted so the veteran gets a mere pittance of
a percentage of the total value of that benefit over 8 or 10
years. It completely thwarts the purpose of the existing law,
which is that the veteran ought to be the one benefiting from
that disability payment that is being paid by the Federal
Government.
So that is the scheme. Last year, you all were kind enough
to--and it was specifically Senator Specter--was kind enough to
make this bill a part of the package, and when it went to
conference the House insisted that it come out. So I wanted to
come back and we are going to try it again.
Now there is something that has happened in the meantime.
The National Consumer Law Center has studied a range of
financial and commercial scams directed not only at veterans,
but at military and their families. They have also examined
this scheme that I have just explained. They concluded that the
lump sum pension schemes that are severely discounted are
illegal under a variety of Federal and State truth-in-lending,
usury, or consumer protection laws. But they agree that there
is an ambiguity in the law that explains the absence of
enforcement efforts.
So we have got a terrible contravention of the spirit,
indeed, the letter of existing law. Veterans are being taken
advantage of by a fast-talking person who will come at a time
when they need cash, and it thwarts the purpose of the
disability payment system when they do not get their payments
over time, because instead, they have taken the lure of the
quick cash scheme. Then, of course, the Federal Government is
getting its intent completely violated by virtue of the fact
that the veteran is not getting the benefit for which the
veteran is entitled as a means of some compensation for their
tremendous service to our country.
It can easily be fixed. Senator Specter has been very kind
to indicate that he wants to do that. If you all so choose, I
would hope that you would be very hard-nosed once you got into
the conference committee. I have no idea where they were coming
from in the House last year insisting that this provision not
come out of the final bill. But the problem was that it was in
the last two days of the session and there was the rush to get
everything done.
So thank you, Madam Chairman, for allowing me to explain
this.
Senator Murray. Thank you, Senator Nelson, for that
excellent statement. I really appreciate your coming here today
and giving that to us and wish you the best with that and look
forward to working with you.
I have been joined by my colleague, the other Senator B.
Nelson, today. We are delighted to have you join us. As I have
explained to the audience, there are numerous committee
hearings going on and a lot of activity on the floor so we have
been coming and going. I have to leave now at this time as
well.
I do want all the members of the audience to know that
Senator Nelson will be able to stay for a short time and get
some of the testimony. For any of you who are here that have
testimony, we will leave the committee record open so that that
testimony can be submitted. I will make sure that I let all
committee members know that that is available for them and
their staffs to have access to. So it will not get lost, we
assure you.
With that, it has been a deep honor to chair this
committee, and not only that, but to hand it over to a
Democratic colleague to chair this afternoon, Senator Nelson.
[Laughter.]
OPENING STATEMENT OF HON. E. BENJAMIN NELSON,
U.S. SENATOR FROM NEBRASKA
Senator Nelson of Nebraska. Thank you very much, Madam
Chairman. As Senator Murray has said, this is an unusual time.
It appears that we have more markups and committee hearings
than at one particular moment. I think it was Senator Dan Akaka
who said that he has not yet learned how to dance at two
weddings at the same time, and this is a place that would
challenge you to learn how do that, I can tell you.
I want to thank the witnesses for being here and, of
course, we will make your statements, to the extent that we are
not able to get them in before I have to go unless somebody
else arrives, part of the record, the same as with the others.
I am a co-sponsor also with the other Senator Nelson of S.
257. I certainly appreciate what he has said about that bill. I
think it is something that needs to be addressed and I think we
will--hopefully it will pass out of the Senate again as it did
last year, but hopefully this time, unlike last time, it will
survive the conference.
I would like now to speak just for a second about S. 806.
At a time when we are experiencing an increased level of
deployments we need to be particularly sensitive to the
hardships that the service members incur as a result of being
deployed more frequently and for extended periods of time. I
introduced the Deployed Service Member Financial Security and
Education Act to compensate both active and reserve military
personnel for frequent and lengthy deployments.
As you know, because of the urgent nature of the issue, a
portion of my bill was included in the defense authorization
for 2004 authorizing a new special pay of $1,000 per month for
active and reserve component military personnel who are
deployed for 191 days or more, or active and reserve component
military personnel who are deployed for 401 or more days of a
rolling 730-day period; numbers that heretofore I do not think
have been used in terms of deployment, and certainly not in
modern times that I am aware of. And for reserve component
military personnel who are mobilized for a second time within a
year of being released from an earlier call up. Once again,
something that I am sure has happened in the past, but perhaps
not with the apparent frequency of the current time.
I appreciated the support of this provision that we
received because it directly assists service members and
families when dealing with the difficulties of multiple
deployments. At a time when we have got service members
deployed in the Sinai, in Germany, on the Korean peninsula, in
Bosnia, Afghanistan, and Iraq, and Kuwait, and perhaps Liberia,
we must, I think, take a strong stand in favor of the service
members, as this would permit us to do.
In his written testimony, Deputy Assistant Secretary
Duehring pointed out that there is a voluntary program in place
to handle individual cases when student reservists have an
issue with an institution of higher learning. We have found
that institutions of higher learning were in some cases not
giving back tuition when service members had their educational
pursuits interrupted.
So I appreciate the current voluntary forum, but it
addresses the issue after a problem has arrived and it may not
be consistently applied and we may not find out about every one
of these situations. To avoid having that happen, I think it is
important to correct the problem before it becomes an
educational concern and/or a fear of our deployed reservists.
Voluntary forums are great, but as I think we all know, they
are not absolute guarantees. It is a relatively modest proposal
that will assist the service member.
I would like to end my remarks by thanking all the members
of the Armed Services Committee and the families that have been
supportive. We are prepared to now move forward. The members of
the VA and the DoD, we are prepared to take your brief
statements. We will adjourn after these statements, so have you
selected--Mr. Duehring, are you the first on the line?
STATEMENT OF CRAIG W. DUEHRING, PRINCIPAL DEPUTY
ASSISTANT SECRETARY FOR RESERVE AFFAIRS, DEPARTMENT OF DEFENSE
Mr. Duehring. Sir, I believe, Mr. Chairman, I believe I
drew the short straw so I will begin. I have submitted a longer
testimony for inclusion in the record, if that is permitted.
What I have done is just extracted five points out of that to
highlight.
The Department of Defense supports the re-enactment of the
Soldiers and Sailors Civil Relief Act of 1940, which I will
call the SSCRA, as the Service Members Civil Relief Act. The
need to modernize the language of the Act, incorporate over 60
years of case law, and add generally accepted practices is
evident. The Department believes both S. 792 and S. 1136
accomplish this goal and would like to thank the committee and
its staff for their work on this important effort. The
Department of Defense has only a few comments regarding
specific provisions of S. 792, S. 1136, and Section 3 of S.
806.
First, the Department prefers S. 1136's requirements
regarding notifying members of the benefits of the Act in
Section 105 over the notification requirement in Section 105 of
S. 792. We appreciate S. 1136's recognition that the
Department's current approach of notifying our members to the
provisions of SSCRA through recurring mobilization and
deployment briefings and other command information media has
been effective and that an additional requirement for written
notification is unnecessary.
Second, the Department prefers Section 301 of S. 1136 over
Section 301 of S. 792 because it includes an automatic
inflation adjustment to the maximum monthly rental amount for
leases covered by that section's eviction protections. Tying
the maximum rental amount to the basic allowance for housing,
BAH, will result in extending this protection to more members
who are stationed in high-cost areas, because that allowance is
based on rental costs in the area where he or she is stationed.
Number three, we believe that Section 305(b) of S. 1136 can
be improved by amending it to allow termination of automobile
leases only when the period of active duty military service
exceeds a certain threshold, perhaps 180 days. As written, the
section would allow least termination for short periods of
active duty when the member does not lose the use of a vehicle
or loses it for only a short time. Applying the termination
provision only to longer periods of active duty when members
are more likely to lose the use of their vehicles is more
consistent with the SSCRA's historic balance between service
members and those they do business with, a balance that has
resulted in widespread support for SSCRA within the business
community.
Fourth, the Department defers to the Department of
Education on Section 207(a)(2) of S. 1136 and Section 3(a) of
S. 806 which would extend the 6 percent interest rate cap to
federally-insured student loans. We note that while the
interest rate cap does not currently apply to such loans, the
Department of Education has a policy of, during periods of
mobilization, requiring complete forbearance of interest and
principal repayment on federally-insured student loans for a
period of active service up to one year with extensions
possible. Unlike the interest rate cap, this DOE policy helps
service members even when interest rates are below 6 percent.
Finally, the Department also defers to the Department of
Education on Section 707 of S. 1136 which would require
institutions of higher education to re-enroll students who left
school to perform active duty service and to allow completion
of unfinished courses at no additional cost, and on Sections
3(b) of S. 806, which addresses the same concern with a more
detailed set of requirements, including leaves of absence,
restoration of educational status, and refunds for uncompleted
coursework.
We note though that the Department has worked closely with
the educational community, State governors, and the service
members opportunity colleges, SOC, a DoD-funded consortium of
colleges and universities established in 1972 on a voluntary
program for taking care of reserve component members who must
leave school upon mobilization. We believe SOC provides us with
a variety of options that have met the needs of our student
population for many years.
I would again like to thank the committee and its staff for
all the effort that has gone into these important bills. I will
be happy to answer questions that you may have.
[The prepared statement of Mr. Duehring follows:]
The Prepared Statement of Craig W. Duehring, Principal Deputy Assistant
Secretary for Reserve Affairs, Department of Defense
Mr. Chairman and members of the Committee, thank you for giving me
the opportunity to come before you this morning to discuss S. 792 and
S. 1136, two versions of the Service members Civil Relief Act, and
section 3 of S. 806, the Deployed Service Members Financial Security
and Education Act of 2003.
The Department of Defense supports the reenactment of the Soldiers'
and Sailors' Civil Relief Act of 1940 (SSCRA) as the Service members
Civil Relief Act. The need to modernize the language of the Act,
incorporate over 60 years of case law, and add generally accepted
practices is evident. The Department believes both S. 792 and S. 1136
accomplish this goal and would like to thank the Committee and its
staff for their work on this important effort.
The SSCRA has been an essential ingredient in the total quality of
life package for our military men and women, and their families, since
its passage. In passing this Act and its Civil War and World War I era
predecessors, Congress recognized that active military service may
cause severe, often insurmountable, problems in handling personal
affairs back home: frequent involuntary moves, extended deployments
overseas, and long separations from families, sometimes with little
advance notice. Congress also recognized the need to have military men
and women focused on their operational mission free from worry about
the welfare of their families or their personal affairs.
Congress addressed these problems adequately and equitably through
the Act's skillfully crafted balance among the needs of our nation for
a strong national defense, the needs of service members--and their
families--for security in their personal affairs, and the needs of
those who have dealt with and depend upon service members for
fulfillment of their obligations.
S. 792 and S. 1136 in large part maintain this important balance
while addressing three areas where our experience with the Act
indicates that change is needed: clarifying and simplifying the
language; incorporating generally accepted procedures; and updating the
Act to reflect 60 years of change in America. With the ongoing Global
War on Terrorism and reserve mobilization, now is a good time to update
and clarify the Act so it can remain vital and continue to serve the
needs of military members and those with whom they do business.
The questions most frequently asked by service members, their
families, and those who deal with them reveal that parts of the Act are
difficult to read and understand, and therefore difficult to follow. It
is apparent from these questions that the entire Act needs to be
rewritten in plain English and in modern legislative drafting form. S.
792 and S. 1136 redraft each section, updating the language and
removing much ambiguity.
Additionally, the Act does not provide necessary procedural
guidance in many areas. For example, although the Act protects service
members with its stay of proceedings provision, it does not explain how
to go about obtaining the needed relief. S. 792 and S. 1136 provide
this missing procedural guidance.
Finally, the world of 1940 could not have foreseen all the changes
in American life that more than 60 years of technological advances and
business practices would bring. The extensive use of leases for
automobiles and business equipment could not possibly have been
imagined over 60 years ago. S. 792 and S. 1136 reflect over 60 years of
progress in America.
The Department of Defense has only a few comments regarding
specific provisions of S. 792, S. 1136, and section 3 of S. 806.
First, the Department prefers S. 1136's requirement regarding
notifying members of the benefits of the Act in section 105 over the
notification requirement in section 105 of S. 792. We appreciate S.
1136's recognition that the Department's current approach of notifying
our members of the provisions of the SSCRA through recurring
mobilization and deployment briefings and other command information
media has been effective and that an additional requirement for written
notification is unnecessary.
Second, the Department prefers section 301 of S. 1136 over section
301 of S. 792 because it includes an automatic inflation adjustment to
the maximum monthly rental amount for leases covered by that section's
eviction protections. Tying the maximum rental amount to the Basic
Allowance for Housing will result in extending this protection to more
members who are stationed in high cost areas because that allowance is
based on rental costs in the area where he or she is stationed.
Third, we believe that section 305(b) of S. 1136 can be improved by
amending it to allow termination of automobile leases only when the
period of active duty military service exceeds a certain threshold,
perhaps 180 days. As written, that section would allow lease
termination for short periods of active duty when the member does not
lose the use of a vehicle or loses it for only a short time. Applying
the termination provision only to longer periods of active duty, when
members are more likely to lose the use of their vehicles, is more
consistent with the SSCRA's historical balance between service members
and those they do business with, a balance that has resulted in
widespread support for the SSCRA within the business community. Unlike
the real property pre-service lease termination provision, for which
there is not a minimum period of active duty, the automobile lease
termination provision applies to movable, depreciable property,
justifying a minimum period of active duty to ensure that the provision
applies to those members who really need it and to reduce its cost to
the lease financing community.
Fourth, the Department defers to the Department of Education on
section 207(a)(2) of S. 1136 and section 3(a) of S. 806, which would
extend the six percent interest rate cap to federally-insured student
loans. We note that while the interest rate cap does not currently
apply to such loans, the Department of Education (DOE) has a policy of,
during periods of mobilization, requiring complete forbearance of
interest and principal repayment on federally-insured student loans for
a period of active service, up to one year, with extensions possible.
Unlike the interest rate cap, this DOE policy helps service members
even when interest rates are below six percent.
Finally, the Department also defers to the Department of Education
on section 707 of S. 1136, which would require institutions of higher
education to reenroll students who left school to perform active duty
service and to allow completion of unfinished courses at no additional
cost, and on section 3(b) of S. 806, which addresses the same concern
with a more detailed set of requirements, including leaves of absence,
restoration of educational status, and refunds for uncompleted course
work. We note, though, that the Department has worked closely with the
educational community, state governors, and the Service Members
Opportunity Colleges (SOC), a DoD-funded consortium of colleges and
universities established in 1972, on a voluntary program for taking
care of reserve component members who must leave school upon
mobilization. Under this very effective program, which covers the same
elements as section 707 of S. 1136 and section 3(b) of S. 806, SOC is
the focal point for handling individual cases when student-reservists
have a problem with an institution. Section 207 of the National Science
Foundation Authorization Act of 1998 (Public Law 105-207), directed the
NSF to convene a forum of government officials, representatives of the
higher education community, and members of the Armed Forces reserve
components to discuss and seek consensus on an appropriate resolution
to problems related to the academic standing and financial obligations
of reservists called to active duty. The forum concluded it was best to
seek solutions through enhanced communications between DoD and the
postsecondary education community and did not recommend legislation.
I would again like to thank the Committee and its staff for all of
the effort that has gone into these important bills. We appreciate this
opportunity to discuss them with you.
______
Response to Written Questions Submitted by Hon. Jim Bunning
to Craig W. Duerhing
Question:. G.I. Bill educational benefits are an important
recruiting tool for the military. It has often been suggested that
service members should be able to freely transfer their educational
benefits to their spouse or children. Would the Defense Department be
interested in such a benefit to recruit and retain quality service
members?
Answer: The authority to transfer educational benefits to a
member's spouse and children was enacted in section 654 of the National
Defense Authorization Act for Fiscal Year 2002 (Public Law 107-107; 115
Stat. 1153). This provision amended chapter 30 of title 38, United
States Code, to give the Secretaries of the Military Departments, the
Secretary of Homeland Security, the Secretary of Health and Human
Services and the Secretary of Commerce concerned the discretionary
authority to permit a member in a critical skill designated by the
Secretary concerned and who is entitled to basic educational assistance
to transfer up to eighteen months of Montgomery GI Bill eligibility to
the member's spouse, children or a combination of the spouse and
children.
The Air Force conducted a limited implementation of this authority
to determine its effectiveness in improving recruiting and retention.
During this test, the Air Force found that this new authority had
limited effect on helping them achieve their personnel management
objectives. Although none of the Military Departments are currently
using this authority, it is a recruiting and retention tool that is
available to them.
Senator Nelson of Nebraska. Mr. Duehring, you were one
second short of five minutes and you cannot beat that. I
appreciate it very, very much.
Admiral Cooper, I believe you may be next and last; is that
correct?
Mr. Cooper. I guess so, sir. He had three things to talk
about. I only have 19.
[Laughter.]
STATEMENT OF DANIEL L. COOPER, UNDER SECRETARY FOR BENEFITS,
DEPARTMENT OF VETERANS AFFAIRS;
ACCOMPANIED BY JOHN W. NICHOLSON, UNDER SECRETARY FOR MEMORIAL
AFFAIRS; JOHN H. THOMPSON, DEPUTY GENERAL COUNSEL; AND RON
HENKE, DIRECTOR OF COMPENSATION
Mr. Cooper. Thank you very much for the opportunity to
testify today on several bills of great interest to the
veterans. I am accompanied by Mr. Jack Thompson, who is a
Deputy Counsel, and General John Nicholson, the Under Secretary
for Memorial Affairs, and Mr. Ron Henke, the Director of
Compensation in my outfit. My written testimony goes into
substantial detail on each of the 19 bills under consideration.
In respect for your time here I will try not to reiterate that
complete detail now. Rather, I will summarize the VA positions
on the various measures so that the committee can direct
questions to any areas where you might want to. I respectfully
request that my written testimony be placed in the record.
Senator Nelson of Nebraska. Without objection.
Mr. Cooper. I am pleased to state the VA fully supports
several of the measures under consideration today. We have
proposed and strongly support S. 517, improving benefits for
former POW's, and S. 1133, which contains a number of VA's
legislative proposals. We support S. 249, reinstating DIC
benefits to remarried survivors over the age of 55; S. 1131,
the annual cost of living allowance for compensation, or COLA,
increases for each year; and S. 1213 which would provide
compensation and burial benefits to Filipino veterans residing
in the United States.
We also support portions of several other measures,
specifically, the proposal in 1124 to increase the burial and
funeral allowances for service-connected deaths to $3,700, the
provision in S. 1188 that eliminates the two-year limitation on
accrued benefits, and the provision of S. 1239 on prohibition
against compensation for substance abuse disabilities.
There is merit in the intent of several of the other
proposals, but we cannot support them because they are not in
the President's budget and would require offsetting savings.
These proposals are S. 1281, Section 2 on new presumptions for
ex-prisoners of war; S. 1132 Sections 2 and 3 on monthly pay
rates and entitlements for Chapter 35 dependents' education
benefits; and Section 4 of 1132 on increased DIC for surviving
spouses with children.
S. 1136 and S. 792 outline comprehensive revisions to the
Soldiers and Sailors Relief Act, as you heard. Generally, we
defer to DoD in these areas. There is one exception. VA
administers the provisions of the Civil Relief Act pertaining
to insurance protection. We generally support the proposed
protection increase to $250,000, but we do have several
concerns of a technical nature which I have stated carefully in
my written report. These concerns are described in that
testimony.
For reasons discussed in my written testimony, we cannot
support the following measures:
S. 257 relating to veterans assignment of benefits to third
parties. In fact, we do not recognize any third parties. We
give the benefits to the veteran. What they do after that, of
course, we cannot control.
S. 978 establishing home loan guarantees for residential
cooperatives. That is stated very carefully in my testimony.
The reason is, we have nothing that they hold onto. That is, a
cooperative is a group of people. Therefore, whereas in
condominiums you have the property, there is no property that
goes with a cooperative.
S. 1282 relating to national cemeteries in underserved
areas and S. 1360 relating to the redefining of notice
agreement, or NODS, in the VA appeals process.
Please excuse my brevity. I am coming in under a minute. So
on these many important issues I have not only skimmed through
the issues, but I have done so with respect to your time. As I
previously mentioned, my written testimony is quite extensive
and offers far greater detail to these various provisions.
At this point I will be glad to answer any questions you
may have.
[The prepared statement of Mr. Cooper follows:]
The Prepared Statement of Daniel L. Cooper, Under Secretary for
Benefits, Department of Veterans Affairs
Mr. Chairman and Members of the Committee, thank you for the
opportunity to testify today on several bills of great interest to
veterans.
S. 249
This bill would amend 38 U.S.C. Sec. 103(d) to remove, for
surviving spouses who remarry after age 55, the bar on the payment of
Dependency and Indemnity Compensation (DIC) to surviving spouses who
remarry. VA has no objection to this bill in principle, but because the
mandatory costs are not included in the President's FY 2004 Budget, we
cannot support enactment without a corresponding offset.
The DIC program provides tax-free monthly benefits to the surviving
spouse of a veteran who dies in or as a result of military service.
Current law denies DIC during periods of the surviving spouse's
subsequent marriage or (in cases not involving remarriage) during
periods when the surviving spouse lives with another person and holds
himself or herself out openly to the public to be that person's spouse.
DIC was created for two purposes: to replace family income lost due
to the service member's or veteran's death and to serve as reparation
for the death. In 1956, the Servicemen's and Veterans' Survivor
Benefits Act replaced the preexisting death-compensation program and
the $10,000 Servicemen's-Indemnity-Act payment with DIC. The House
Select Committee on Survivor Benefits explained, in a 1955 report, H.R.
Rep. No. 84-993, that ``these two separate and distinct survivor
benefit programs . . . would become one. To this limited extent one of
the objectives of the committee, greater simplicity, would be
accomplished and the long-term interest and equity of survivors
protected.'' In this manner, DIC was intended to meet, at least in
part, the Government's obligation to those who died in the defense of
our country. An expansion of DIC eligibility would well serve this
purpose for the following reasons.
S. 249 would assist surviving spouses by allowing those over age 55
to maintain their standards of living, thus removing any economic
disincentive to remarriage. A veteran's surviving spouse would be able
to subsequently marry without fear of economic deprivation, and the
elderly couple could live together in comfort and dignity--legally
married.
Benefits for surviving spouses of military retirees through the
Department of Defense's (DoD) Survivor Benefit Plan do not terminate if
remarriage takes place at age 55 or thereafter. Social Security
survivors' benefits do not terminate if remarriage takes place at age
60 or thereafter. S. 249 would thus better align DIC benefits with
benefits provided to surviving spouses of military retirees under DoD's
Survivor Benefit Plan and to surviving spouses under the Social
Security program.
Enactment of S. 249 could result in benefit costs of as much as
$23.9 million during FY 2004 and $1.1 billion during the period FY 2004
through 2013.
S. 257
S. 257, the ``Veterans Benefits and Pensions Protection Act of
2003,'' would amend VA's anti-assignment statute, 38 U.S.C. Sec. 15301,
by adding language to prohibit certain agreements, as well as
collateral security arrangements, between persons receiving monetary VA
benefits and third parties. Third parties use these agreements to
acquire for consideration rights to receive monetary benefits paid to
VA beneficiaries. Besides prohibiting these agreements and
arrangements, S. 257 would subject third parties who enter into such
agreements or arrangements to penalties of fine, imprisonment, or both.
The bill would also require VA to ``carry out a program of outreach''
to inform veterans and other beneficiaries of the prohibition and would
authorize $3,000,000 in appropriations for such outreach for FY 2004
through 2008.
Let me first assure the Committee that, because 38 U.S.C.
Sec. 15301 generally bars assignment of VA benefits, VA regional
offices have not and do not honor such agreements. Nevertheless, once
funds are paid to a beneficiary, VA lacks the ability to oversee how
those funds are used, unless the beneficiary has been found mentally
incompetent. While we would certainly counsel veterans, their
dependents, and survivors to very carefully consider the full
ramifications of assigning their benefits, we believe they should be
free to decide how best to manage their own personal finances.
Therefore, we do not support enactment of S. 257.
S. 517 AND S. 1281 POW'S--MINIMUM CONFINEMENT PERIODS
Section 2(a) and (b) of S. 517 would eliminate the current
requirements that a former prisoner of war (POW) be detained or
interned for at least thirty days in order to be eligible for a
presumption of service connection for certain diseases, and at least
ninety days in order to be eligible to receive VA care and treatment
for a dental condition or disability.
VA supports section 2(a) and (b) of S. 517, which are virtually
identical to provisions in a draft bill we recently submitted to
Congress. Currently, 38 U.S.C. Sec. 1112(b) provides a presumption of
service connection for certain diseases for former POW's who were
detained or interned for at least thirty days. Also, 38 U.S.C.
Sec. 1712(a)(1)(F) provides eligibility for VA outpatient dental care
services and treatment, and related dental appliances for dental
conditions or disabilities of former POW's who were detained or
interned for at least ninety days. Recent military engagements
involving the United States instruct that, because of our Nation's
advanced technology and superior warfare capability, actual combat may
end in a far shorter period of time than in previous wars. As a result
of this phenomenon, American soldiers who are detained or interned by
the enemy are likely to be held for less than 90 days, or even 30 days,
as was the case with the United States soldiers held as POW's during
Operation Iraqi Freedom. Recent experience has indicated, however,
that, despite the shorter duration, the conditions of detention or
internment may be such that these former POW's may suffer from many of
the same diseases for which a presumption of service connection is
available pursuant to section 1112(b) and from dental conditions or
disabilities for which dental care and treatment is currently available
pursuant to section 1712(a)(1)(F) for former POW's who were held for
longer periods. We believe it would be equitable to eliminate the
requirement of a particular duration of detention or internment so that
all former POW's would be eligible for the presumption of service
connection for the diseases specified in section 1112(b) and for dental
care and treatment pursuant to section 1712(a)(1)(F). We estimate that
enactment of section 2(a) and (b) would have mandatory costs of $3.3
million in FY 2004 and $61 million over ten years.
POW'S--DISEASES PRESUMED SERVICE CONNECTED
Section 2(c) of S. 517 would add heart disease, stroke, liver
disease, diabetes (type 2), and osteoporosis to the list of diseases
for which a presumption of service connection is available pursuant to
38 U.S.C. Sec. 1112(b). Section 2 of S. 1281 would add cardiovascular
disease (heart disease), cerebrovascular disease (stroke), and chronic
liver disease, including cirrhosis and primary liver carcinoma, to the
presumptive diseases in section 1112(b).
Section 2(c) of S. 517 would also authorize the Secretary to
promulgate regulations creating a presumption of service connection for
any other disease which the Secretary determines has a ``positive
association with the experience of being a [POW].'' A ``positive
association'' would exist ``if the credible evidence for the
association is equal to or outweighs the credible evidence against the
association.'' In deciding whether to promulgate such a regulation, the
Secretary would be required to consider the recommendations of the
Advisory Committee on Former POW's and any other available sound
medical and scientific information and analyses. VA would have 60 days
from receipt of an Advisory Committee recommendation to make a
determination as to whether a presumption of service connection is
warranted, and then another 60 days to publish in the Federal Register
either proposed regulations, if VA determines that a presumption is
warranted, or a notice explaining the scientific basis for a
determination that a presumption is not warranted.
VA continues to investigate the long-term health consequences of
the conditions of POW internment or detention, such as malnutrition,
vitamin deficiency, and exposure to parasitic and infectious diseases.
In severe forms, such conditions of internment or detention could
likely be associated with the conditions specified in section 2 (c) of
S. 517 and section 2 of S. 1281. It is also true that many POW's
suffered physical and mental torture and maltreatment, which could lead
to long-term stress and anxiety, which in turn have been shown to have
adverse effects on the health of many individuals. VA is committed to
properly compensating former POW's for the disabilities resulting from
their service to our Nation. In light of the potential connection
between the POW experience and the diseases listed in the subject
bills, we could support enactment of section 2 (c) of S. 517 and
section 2 of S. 1281 only if the Committee can identify offsetting
savings, since most of these costs are not in the President's FY 2004
Budget. We estimate that enactment of all of the S. 517 provisions,
i.e., elimination of the minimum confinement period and additional
diseases presumed to be service connected, would result in benefit
costs of $29.4 million in FY 2004 and $517.3 million over the ten-year
period FY 2004 through FY 2013. If S. 517 were enacted, the most
significant presumptions of S. 1281 would be addressed. If the S. 517
presumptions were not enacted, we estimate the benefit costs of S. 1281
would be $20.9 million in FY 2004 and $364.7 million over ten years.
We also note that, in its December 20, 2002 report, the Advisory
Committee on Former POW's recommended to VA that cardiovascular disease
be established as a presumptive condition. In response to this and
previous recommendations by the Advisory Committee to add presumptive
conditions, VA is establishing a Workgroup on Medical Presumptive
Conditions in Former POW's to establish procedures, guidelines, and
standards to determine whether a disease should be designated by VA as
presumptively service connected in former POW's. We contemplate that
the Workgroup will be comprised of representatives of the Under
Secretaries for Benefits and Health, General Counsel, and Chairman of
the Advisory Committee on Former POW's. The activities of this
Workgroup will assist VA in determining whether scientific and medical
evidence supports further expansion of the list of conditions presumed
to be service connected in former POW's. In our view, these activities
will render unnecessary the procedures for establishment of new
presumptions based on consideration of recommendations from the
Advisory Committee on Former POW's, as proposed in sectionE2 (c) of S.
517.
REVIEW OF DOSE RECONSTRUCTION PROGRAM OF DEPARTMENT OF DEFENSE
Section 3 of S. 1281 would require the Secretary of Defense and the
Secretary of Veterans Affairs to conduct a joint review of the mission,
procedures, and administration of the DoD Dose Reconstruction Program
for preparing radiation dose estimates and to report to Congress on
their findings within 90 days after the bill is enacted. The bill would
also require the Secretaries to provide for ongoing independent review
and oversight of the Dose Reconstruction Program and would require
establishment of an advisory board as one method of providing such
ongoing review. VA does not support this provision.
DoD has statutory responsibility for preparing radiation dose
estimates. VA uses those dose estimates in adjudicating some claims for
service-connected benefits filed by veterans exposed to radiation in
service or their family members. A recent review by the National
Research Council (NRC) of the National Academy of Sciences identified
several concerns regarding certain methods and assumptions employed by
DoD that may have caused underestimation of the upper-bound limits of
exposure in some cases. We understand that DoD is presently in the
process of revising its Dose Reconstruction Program to address the
concerns identified by the NRC. Correspondingly, VA is working to
identify claims previously decided based on dose reconstructions from
DoD. Once we have identified those claims, we intend to seek revised
dose estimates from DoD, if the claimant potentially could benefit from
a revised dose estimate.
We believe the provisions of this legislation requiring VA and DoD
to jointly review and report on the Dose Reconstruction Program would
be superfluous in view of the comprehensive NRC report. The committee
of highly qualified experts assembled by the NRC spent more than two
years reviewing the Dose Reconstruction Program. The NRC report
discusses in detail the specific concerns identified in the Dose
Reconstruction Program and provides a clear framework for DoD's current
efforts to revise its program. We do not believe that a further review
of the same matters by VA and DoD would provide any significant
additional information to aid in identifying and correcting any
problems in the Dose Reconstruction Program. The oversight
responsibilities that would be required by this legislation would
unnecessarily divert VA resources from the task of identifying and
reviewing potentially affected claims.
Dose estimates prepared by DoD are often an important piece of
evidence VA must consider in adjudicating claims for benefits based on
radiation exposure. In view of the importance of this information and
the difficult and sensitive nature of the adjudicative issues involved
in such claims, we consider it important to avoid even the appearance
that VA is influencing DoD's procedures and methods of preparing the
dose estimates. Assigning VA an oversight role in matters affecting the
creation of such evidence may result in a perception among some
veterans that the estimates lack objectivity.
For these reasons, we do not support this provision. We estimate
that this provision, if enacted, would result in approximately $350,000
in annual costs to VA.
DISPOSITION OF RANCH HAND STUDY
Section 4 of S. 1281 would require VA, not later than 60 days after
the date of the enactment of this Act, to contract with the National
Academy of Sciences (NAS), or other appropriate organization, to
determine the appropriate disposition of the Air Force's well-known
``Ranch Hand'' epidemiologic study when it terminates in 2006. Among
other things, the NAS would be required to address, and ultimately
report on, the advisability of extending the study and the disposition
of the specimens, medical records, and other data collected in the
course of this long-term study.
VA generally supports the suggestion for independent review of the
merits of the Ranch Hand study, as proposed. VA has never been involved
in the funding, conduct, or direction of DoD's ``Ranch Hand'' study. As
a result, VA cannot provide close oversight of the NAS contract, as
proposed in section 4 of the bill. Were VA required to enter into the
contract required by section 4, we estimate the costs associated with
enactment of this provision to be $1.5 million, which would be
redirected from veteran's Medical Care funds.
Section 5 of the bill would require both VA and DoD to make
available to NAS in each of fiscal years 2004 through 2013, $250,000
each from their respective appropriations for the Medical Follow-Up
Agency (MFUA). MFUA would use these funds for epidemiological research
on members of the Armed Forces and veterans.
We support the continued funding of the MFUA whose independence and
outstanding scientific reputation lend a high degree of credibility to
critical studies that have a direct bearing on VA health care and
compensation policies. As you know, the MFUA has been essential to VA
for conducting a number of critical studies on veterans' health issues,
including a study on Shipboard Hazard and Defense (SHAD) veterans,
studies on actual hepatitis rates among veterans, and a congressionally
mandated study on hearing loss among military personnel. In short, the
MFUA is a critical asset for VA.
S. 792, S. 806 AND S. 1136
S. 792 and S. 1136 are very similar bills that recodify and revise
the Soldiers' and Sailors' Civil Relief Act of 1940 (SSCRA), while
renaming it the ``Service members Civil Relief Act'' (SCRA). Most of
the protections provided under the SCRA would be afforded to current
members of the uniformed services and to their dependents. DoD, not VA,
is the Federal agency with the primary interest in these bills, and we
defer to DoD on all such matters that fall within DoD's jurisdiction.
There is, however, one provision of the SSCRA, Article IV-
Insurance, that VA is charged with administering. I would like to
summarize for the Committee at this time our views on the insurance-
protection provisions of S. 792 and S. 1136.
Under section 402(c) of the SCRA, the maximum amount of life
insurance coverage protection provided would be increased from $10,000
to $250,000. The original intent of the SSCRA with regard to life
insurance protection was to provide individuals summoned to active duty
with a guarantee that their commercial life insurance coverage would
not lapse for non-payment of premiums during service. While the
provision of the current statute that provides protection for up to
$10,000 of coverage under certain types of policies was of greater
significance during the 1940s and 1950s, it has become less of a
benefit for those serving in the Armed Forces today and has been little
used by service personnel. This is probably because the amounts of
insurance and types of coverage, including the availability of coverage
up to $250,000 under the Service members' Group Life Insurance program,
have expanded over the years, while the protection provided by the
SSCRA has not changed.
We generally support the proposed revision of the life insurance
protections of the SSCRA contemplated by S. 792 and S. 1136, which
would greatly enhance the insurance protection available to active duty
personnel. We believe that many service members could benefit from the
insurance protection provisions of the bills, particularly the proposed
increase in the amount of life insurance that may be guaranteed and the
expansion of the types of life insurance policies that are eligible for
protection. We also applaud the effort to draft the bills in plain
language. We do, however, have several concerns of a technical nature
with regard to these bills.
In particular, section 401(1) of the SCRA would define ``policy''
as an insurance policy under which the insurer may not increase the
premium if the insured is in military service. It is VA's understanding
that normal term insurance premium increases based upon age are not
prohibited, and the only prohibition is that of increasing premiums
simply because the insured is called to military service. Some
clarification concerning whether normally scheduled premium increases
are acceptable under this definition may be necessary. We also note
that VA regulations implementing the SSCRA currently exclude group life
insurance from protection under that statute. Congress may wish to
clarify whether it intends to include group insurance within the
coverage of the insurance protection provisions.
Under section 402(a), the life insurance protection of the SCRA
could be requested by the insured, the insured's designee, or the
insured's beneficiary. Most other SCRA provisions would require the
service member to personally request protection. While the SSCRA
currently permits life insurance protection to be requested by the
service member's designee or by the service member's beneficiary when
the insured is deployed outside the continental United States, S. 792
and S. 1136 would also permit an application by a beneficiary when the
insured is deployed in the United States. We question whether it is
desirable to require VA to provide premium protection based on a
beneficiary's request about which the service member may be unaware.
The service member may become obligated to repay any money VA expends
to keep the policy in place. We believe the better course is to require
that the protections afforded under Title IV of the SCRA be requested
by the service member or the insured's designee.
Section 407(a) (2) would require the United States, upon expiration
of insurance protection under the SCRA, to reimburse the insurer for
unpaid premiums in the amount of the difference between the amount of
premiums due and the cash surrender value of the policy. The
protections of the SCRA would be provided during a period beginning
upon a service member's entry into military service and ending on the
date of release from military service. As a result, VA is obligated to
provide protection for the full military career of every active duty
service member who is insured under a life-insurance policy that is in
force for at least 180 days before entry into military service and at
the time of application for SCRA protection. Given the period of
protection provided by the SCRA and the increased coverage proposed in
section 402(c), the Government's liability would likely increase
exponentially. Congress should recognize that these provisions would
result in a substantial increase in the Government's obligation to its
service personnel.
Under section 409, VA's decisions regarding life insurance
protection would be subject to review by the Board of Veterans' Appeals
(Board) and the Court of Appeals for Veterans Claims (Veterans Court).
If the contemplated review of life insurance protections is adopted,
conforming changes should be made to title 38 to clarify the scope of
the Board's jurisdiction. Also, the current language of section 409
does not appear to provide exclusive jurisdiction in the Board and the
Veterans Court over such matters. We recommend that Congress make its
intentions clear in this regard, and we would be glad to work with
Committee staff to draft these clarifications.
The budgetary impact of the expansion of insurance protection
contemplated by these bills will depend on the number of service
members who are called to active duty in the future, the number who
choose to take advantage of the insurance protection provisions, and
whether the expanded protection will apply to group life insurance
policies. VA estimates that the benefit cost of enactment of S. 792 or
S. 1136 would be $186,000 annually for every 10,000 personnel called to
active duty. VA estimates that administrative costs of the insurance
protection provisions would total $67,000 in FY 2004, $359,000 over the
five-year period FY 2004-2008, and $788,000 over the ten-year period FY
2004-2013.
The only other notable impact of S. 792 and S. 1136 on VA would be
in VA housing loan programs. The provisions of the existing SSCRA
concerning interest rates, default judgments, termination of mortgages,
and similar issues have a marginal impact on VA with respect to VA-
guaranteed loan holders and loans held in our portfolio. We are not
aware that any loan holders in the VA housing-loan programs have
encountered significant problems as a result of these important
protections granted to persons in military service. We do not
anticipate that the amendments contemplated by S. 792 and S. 1136 would
have any significant additional impact on the VA housing loan programs.
S. 806, the ``Deployed Service Members Financial Security and
Education Act of 2003,'' would amend title 37 of the United States Code
to authorize payment of a monthly allowance to service members involved
in lengthy or repeated deployments. This bill would also amend the
interest-rate-relief provisions of the SSCRA to include certain student
loans and would preserve educational status and protect tuition
payments of deployed service members. As S. 806 pertains to allowances
and protections for active members of the Armed Forces, we defer to DoD
as to its merits.
S. 938
S. 938 would amend 38 U.S.C. Sec. 1318(b)(3) to eliminate the
September 30, 1999, date limitation on benefit eligibility for
surviving spouses and children of former POW's who died of non-service-
connected causes and were totally disabled for a continuous period of
one year prior to death. Under current law, VA pays DIC benefits under
chapter 13 of title 38, United States Code, to the surviving spouse,
dependent children, and dependent parents of service members who died
during active duty or who died after service as a result of a service-
connected condition. In addition, VA provides benefits in the same
manner to the surviving spouse and children of veterans who died after
service from a non-service-connected cause if the veteran was totally
disabled due to a service-connected cause: (1) for a continuous period
of ten or more years immediately preceding death; (2) for a continuous
period of at least five years after the veteran's release from service;
or (3) in the case of a former POW who died after September 30, 1999,
for a continuous period of at least one year immediately preceding
death. The amendment to section 1318(b)(3) would eliminate the date
limitation governing benefit eligibility for POWs' survivors, thereby
authorizing such payments regardless of the date of the veteran's
death.
We estimate that enactment of the proposed amendment to 38 U.S.C.
Sec. 1318(b)(3) would result in additional mandatory benefit costs of
$7.5 million in FY 2004 and $208.7 million for the 10-year period FY
2004 through FY 2013. Additional discretionary costs would total
$187,000 for five years. This proposal was not in the President's
Budget for FY 2004, so we cannot support it without an offset.
S. 978
S. 978 would authorize VA to guarantee loans to veterans to
purchase stock or membership in a cooperative housing project.
Under current law, veterans may purchase conventional homes,
condominium units, or manufactured homes and manufactured home lots
with VA guaranteed loans. In all cases except manufactured homes, the
veteran is purchasing real property. Although a manufactured home is
normally considered personal property, veterans nevertheless obtain
title to the actual homes they will be occupying. In contrast, the
buyers of co-ops do not acquire an interest in real estate or obtain
title to their dwelling unit. Instead, the purchasers acquire a share
of the cooperative's stock, coupled with the right to occupy a
particular apartment in the building. Unlike other VA loans, there
would be no lien on real property or tangible personal property.
Predominately, cooperative housing projects are subject to blanket
mortgages. This poses a significant risk to the buyer, the loan holder,
and VA. The co-op owners are responsible for the monthly payment on
their share loans as well as the assessments levied by the co-op
project. The survival of the project may depend upon virtually all
members of the co-op meeting their assessment obligations. Failure of a
few members to do so could lead to foreclosure of the blanket mortgage
on the entire building. Such foreclosure would totally wipe out the
interests of all co-op owners, even those owners who made timely
payments. It would also leave the holder of the VA guaranteed share
loans without any security. This sets co-ops apart from condominiums.
The governing documents of most co-ops contain a right of first
refusal, a right by the co-op board to approve or reject a prospective
buyer, or other restrictions on the resale of units. These rights of
first refusal or most other sales restrictions are not permitted by VA
regulations and could adversely affect the marketability of a unit. If
veteran-borrowers are experiencing financial difficulties and cannot
freely dispose of their units at an advantageous price, foreclosure is
more likely. These resale restrictions could also hamper VA's efforts
to resell properties following loan termination, thus increasing VA's
loss. Since most co-op projects have such resale restrictions, few
projects are likely to meet the requirements VA would set for the
acceptability of cooperative projects. Accordingly, VA opposes
enactment of S. 978.
VA estimates that enactment of S. 978 would result in approximately
30 additional guaranteed loans a year, with a first-year cost of
$70,000 and a 10-year cost of approximately $847,000.
S. 1124
S. 1124, the ``Veterans Burial Benefits Improvement Act of 2003,''
would increase the amount of several burial benefits for veterans.
Section 2(a) of the bill would amend 38 U.S.C. Sec. Sec. 2302(a) and
2303(a)(1)(A) to increase the burial and funeral allowance for non-
service-connected deaths from $300 to $1,135, and amend 38 U.S.C.
Sec. 2307 to increase the burial and funeral allowance for service-
connected deaths from $2,000 to $3,712. Section 2(b) would amend 38
U.S.C. Sec. 2303(b) to increase the plot allowance for veterans who are
buried in State or private cemeteries from $300 to $670. Section 2 (c)
would add to title 38 a new section 2309, which would require future
annual increases in these benefits based on the percentage increases of
the Consumer Price Index. The initial increases in the various benefits
would apply to deaths occurring on or after the date of enactment of
this legislation.
We estimate that the bill could increase spending by $116 million
during FY 2004 and $1.4 billion during the ten-year period FY 2004
through FY 2013.
The proposed new rates are apparently derived from a December 19,
2000 Pricewaterhouse-Coopers study, ``An Assessment of Burial Benefits
Administered by the Department of Veterans Affairs.'' Since that
report, President Bush approved legislation increasing two of the three
benefits listed in S. 1124. On December 27, 2001, President Bush signed
Public Law 107-103, thus increasing burial and funeral allowances for
service-connected deaths by one third and doubling the plot allowance.
Furthermore, the adequacy of the current burial and plot allowances
must be considered in the context of the overall burial program. The
Government has responded to veterans' burial needs in recent years by
establishing several new national cemeteries and by significantly
enhancing the grant program under which state veterans cemeteries are
established. The State Cemetery Grants Program now provides up to 100
percent of the costs of construction associated with the establishment,
expansion, or improvement of state veterans' cemeteries. Given the
expanding availability of burial options within both national and state
veterans' cemeteries, and the competing demands for scarce VA
resources, at this time we cannot support S. 1124.
S. 1131
S. 1131, the ``Veterans' Compensation Cost-of-Living Adjustment Act
of 2003,'' would direct the Secretary of Veterans Affairs to increase
administratively the rates of compensation for veterans with service-
connected disabilities and of DIC for the survivors of veterans whose
deaths are service related, effective December 1, 2003. As provided in
the President's FY 2004 budget request, the rate of increase would be
the same as the cost-of-living adjustment (COLA) that will be provided
under current law to Social Security recipients, which is currently
estimated to be 2.0 percent. We believe this proposed COLA is necessary
to protect the benefits of affected veterans and their survivors from
the eroding effects of inflation.
We estimate that enactment of this COLA bill would cost $355
million during FY 2004 and $4.3 billion over the period FY 2004 through
FY 2013. However, this cost is already assumed in the Budget baseline
and, therefore, would not have any effect on direct spending.
S. 1132
Mr. Chairman, S. 1132, the ``Veterans' Survivors Benefits
Enhancements Act of 2003,'' contains several provisions that would
improve benefits for survivors and certain dependents of veterans under
the Department's various programs.
Specifically, section 2 of this bill would increase educational
assistance benefits under the chapter 35 VA's Survivors' and
Dependents' Educational Assistance program by 44.8 percent, from $680
to $985 per month for full-time course pursuit, from $511 to $740 for
three-quarter time pursuit, and from $340 to $492 per month for half-
time pursuit, effective for months of course pursuit on or after
October 1, 2003. It would also raise the basic monthly rate payable for
Special Restorative Training (SRT) to $985. Similarly, the optional
supplement to the SRT basic rate would be increased to pay the amount
of tuition and fee charges that, on a monthly basis, would exceed $307
for FY 2004.
Given this benefits increase, the measure would suspend the
statutory annual Consumer Price Index-based adjustment in chapter 35
educational assistance rates for FY 2004.
Chapter 35 benefit rates earlier equaled rates payable under the
Vietnam Era GI Bill to a veteran with no dependents and, for a time,
exceeded chapter 30 Montgomery GI Bill (MGIB) rates. In more recent
years, however, chapter 35 benefits have lost ground. The current $680
chapter 35 monthly rate is significantly below the MGIB rate payable to
eligible veterans with 3 years or more of service, which will be $985
per month in FY 2004 under legislation already enacted. Section 2 of S.
1132 would remedy this, ensuring that chapter 35 spouses, surviving
spouses, and children would receive educational assistance equal to
that of veterans receiving such educational assistance under the MGIB.
Mr. Chairman, although we appreciate your efforts to restore this
balance, the President's FY 2004 Budget does not include this proposal.
VA estimates the effect of the rate increase in section 2 of this
measure could raise obligations by approximately $1.4 billion over the
10-year period FY 2004 through FY 2013.
Section 3 of S. 1132 would decrease the entitlement available to
new chapter 35 recipients from the current 45 months to 36 months. This
would apply in the case of those who first file an educational
assistance claim under chapter 35 after the date of enactment.
Approximately 23 percent of dependents use more than 36 months of
benefits. Nevertheless, we believe the 44-percent increase in the
monthly rate would compensate for the loss of 9 months of entitlement.
VA further believes this reduction in entitlement would be necessary to
partially offset the cost of increases in the rates of assistance
allowance provided by section 2 of this bill.
VA estimates the cost savings for section 3 of S. 1132 would be
approximately $126.9 million over the ten-year period FY 2004 through
FY 2013. The estimated ten-year net cumulative cost for sections 2 and
3 of S. 1132 is $1.3 billion. VA supports the provision in principle,
but because it was not in the President's Budget for FY 2004, we cannot
support it without a corresponding offset.
Section 4 of S. 1132 would amend 38 U.S.C. Sec. 1311 to provide an
additional $250 in DIC for a surviving spouse with one or more children
under the age of 18. The increase would apply only for the 5-year
period after the veteran's death and would cease when all children
attain age 18.
By boosting the DIC rate payable to a surviving spouse with
children during the 5 years following a veteran's death, this provision
would provide dependents additional monetary support at an appropriate
time. VA has no objection to the provision in principle, but because it
was not in the President's Budget for FY 2004, we cannot support it
without a corresponding offset.
Section 5 would amend 38 U.S.C. Sec. 2402(5) to make a veteran's
surviving spouse who marries a non-veteran after the veteran's death
eligible for burial in a VA national cemetery based on his or her
marriage to the veteran. This provision is similar to a VA proposal
sent to Congress on April 25, 2003. Our full rationale and
justification for this proposal, as well as our cost estimates, are
contained in Secretary Principi's April 25, 2003 letter to the
President of the Senate.
Unlike VA's proposal, section 5 of S. 1132 would make the burial
eligibility of remarried surviving spouses of veterans retroactive to
deaths occurring on or after January 1, 2000. We estimate that the
additional costs associated with this retroactivity would be
negligible. Although it is difficult to determine how many families of
already deceased, and presumably interred, remarried surviving spouses
of veterans would want to disinter their loved ones and then re-inter
them with their veteran spouses in a national cemetery, we believe the
number of such families would not be significant.
Section 6 would amend chapter 18 of title 38, United States Code,
to authorize VA to provide a monetary allowance and other benefits to a
person suffering from spina-bifida who is natural child, regardless of
age or marital status, of a veteran who served in the active military,
naval, or air service in or near the Korean demilitarized zone (DMZ)
between January 1, 1967, and December 31, 1969, if the person was
conceived after such service began and if the veteran is determined by
VA, in consultation with the DoD, to have been exposed to a herbicide
agent during such service. The term ``herbicide agent'' would be
defined as a chemical in a herbicide used in support of United States
and allied military operations in or near the Korean DMZ, as determined
by VA in consultation with DoD during the specified period.
VA is still formulating its views and cost estimates on this
provision. As soon as those views and estimates are cleared for
transmittal, we will provide them to the Committee.
S. 1133
Mr. Chairman, we very much appreciate your courtesy in introducing
S. 1133 at the Department's request. Our full rationale and
justification for these proposals, as well as our cost estimates, are
contained in Secretary Principi's April 25, 2003 letter to the
President of the Senate and will not be repeated here. Several of this
bill's provisions are also covered in other bills that are on the
agenda for today's hearing.
All of the provisions in VA's proposal are significant to the
programs administered by VA and the veterans served by those programs.
Among the important proposals in S. 1133 that have not been otherwise
introduced in the Senate are:
Sections 3 and 4, which would repeal the 45-day rule for effective
dates of death pension awards and exclude lump-sum life insurance
proceeds from determinations of annual income for pension purposes.
These changes are necessary to eliminate unequal treatment of death
pension applicants and to uphold one of the fundamental principles of
the pension program--insuring that those with the greatest need receive
the greatest benefit.
Section 6, which would authorize VA to pay unclaimed National
Service Life Insurance and United States Government Life Insurance
proceeds to an alternative beneficiary. This proposal would allow VA to
ensure that the proceeds of insurance policies are paid to an
appropriate beneficiary and to avoid adding to the approximately 4,000
existing policies in which payment has not been made due to the fact
that we cannot locate the primary beneficiary, despite extensive
efforts.
Section 7, which would clarify VA's authority both to declare a
claim abandoned where it is not completed within one year of VA's
notice of what is required to complete it, and to decide claims before
the end of the one year the claimant has to provide the evidence to
substantiate the claim. Such early adjudications are subject to
revision based on evidence submitted within the year, and the effective
date of any decision so revised will be the earlier date on which the
claim was made.
Section 11, which would make permanent the State Cemetery Grants
Program, an important supplement to the National Cemetery system. This
program authorizes VA to make grants to states to assist them in
establishing, expanding, or improving state veterans' cemeteries.
Section 15, which would extend the date on which eligibility for
education benefits ends for individuals ordered to full-time National
Guard service under title 32 of the United States Code in the same
manner the delimiting date is now extended for those who are activated
under title 10.
All of the proposals in S. 1133 would improve veterans programs and
their administration, and we commend them to the Committee's careful
consideration.
S. 1188
S. 1188, the ``Veterans' Survivor Benefits Act of 2003,'' would, in
section 2, eliminate a discrepancy regarding the limitation on the
period for which retroactive benefits due and unpaid a claimant may be
paid to others after the claimant's death. In the interest of fairness,
we support enactment of this provision.
Under 38 U.S.C. Sec. 5121, periodic monetary benefits to which an
individual was entitled at death under existing ratings or decisions or
based on evidence on file with VA at the date of death are paid upon
the individual's death to specified classes of survivors according to a
prescribed order of preference. Before a recent court decision, VA had
construed section 5121 to limit the payment of any benefits under that
section to the retroactive period specified in the statute, regardless
of whether the payment was based on an existing rating or decision or
on evidence on file at the date of death. The retroactive payment
period, originally one year, was extended to two years by Public Law
104-275, the ``Veterans' Benefits Improvements Act of 1996.''
On December 10, 2002, the United States Veterans Court issued its
decision in Bonny v. Principi, 16 Vet. App. 504 (2002). The court held
that 38 U.S.C. Sec. 5121(a) specifies two kinds of benefits: benefits
that have been awarded to an individual in existing ratings or
decisions but not paid before the individual's death, and benefits that
could have been awarded based on evidence in the file at the date of
death. The court held that, in the case of the first type of benefits,
the statute requires that an eligible survivor is to receive the entire
amount of the award; only the latter type of ``accrued'' benefits is
subject to section 5121(a)'s two-year limitation. The court based its
interpretation of the statute primarily on section 5121(a)'s
punctuation.
The Veterans Court's Bonny decision has resulted in differing
entitlements under section 5121 based on the status of the deceased's
claim at the date of his or her death. S. 1188 would eliminate this
discrepancy by eliminating the two-year limitation on payment of
retroactive benefits for all classes of beneficiaries under that
statute.
The distinction the Bonny decision draws between the two categories
of claimants--those whose claims had been approved and those whose
entitlement had yet to be recognized when they died--is really one
without a difference. In either case, a claimant's estate is deprived
of the value of benefits to which the claimant was, in life, entitled.
Section 2 of S. 1188 would remove this inequitable distinction, and we
support its enactment.
We note that section 2 of S. 1188 would also add a new class of
claimants eligible for accrued benefits. Chapter 18 of title 38, United
States Code, authorizes monetary benefits for Vietnam veterans'
children with birth defects. This provision would ensure that, upon the
death of a child entitled to benefits under chapter 18, the child's
surviving parents would be eligible for accrued benefits.
In addition, we note one technical change needed in section 2 of S.
1188 should it be enacted. The comma in current section 5121(a)
following ``existing ratings or decisions'' should be deleted to
clarify, for purposes of 38 U.S.C. Sec. Sec. 5121(b) and (c) and 5122,
that the term ``accrued benefits'' includes both benefits that have
been awarded to an individual in existing ratings or decisions but not
paid before the individual's death, as well as benefits that could be
awarded based on evidence in the file at the date of death.
Sections 3 and 4 of S. 1188 would add new sections 5127 and 7270 to
title 38, United States Code. These sections would provide that, if a
claimant for monetary veterans' benefits dies on or after the date of
enactment of this legislation and before a decision on the claim
becomes final, an ``eligible person'' may submit an application to VA
or a motion to a court to be substituted as the claimant. They would
require VA or the court to grant such an application or motion if
timely filed.
S. 1188 would not limit its application to claims for benefits in
which benefits are due and unpaid under existing ratings or decisions
or in which evidence sufficient to decide the claim has already been
developed. Under section 5121, the findings necessary to support an
award of accrued benefits must be made on the factual record
established during the deceased claimant's lifetime. In contrast,
section 5127(f) contemplates that a substitute claimant may submit
evidence to substantiate the deceased's claim. Section 5127(d) would
require VA to assist the substitute claimant in developing the claim
pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in
essentially the same manner as if the claimant had survived.
VA opposes this legislation primarily because it would impose
significant additional burdens by requiring evidentiary development
after the veteran's death, when the veteran cannot provide critical
information necessary to properly develop and adjudicate the claim.
Inasmuch as VA would be unable to rely upon the veteran to provide
information about events in service, treatment during and after
service, and the nature and extent of his or her condition, as the VCAA
contemplates, it would be unusually difficult and burdensome for VA to
develop those claims to the extent required by the VCAA. Indeed, in
many cases, it simply may be impossible for VA to obtain sufficient
information to resolve the claim. Claims for disability compensation
often cannot be resolved without examining the veteran to discern the
nature and extent of the claimed disability and determine whether the
disability may be related to events or injuries in service. In
requiring VA to conduct medical examinations when necessary to a
decision, the VCAA recognizes that, absent a medical examination of the
veteran, the evidence will often be insufficient for VA to make a
reasoned decision on the claim. Even if the issue of service connection
can be resolved, there may be no basis on which to establish a degree
of disability. Accordingly, VA's inability to contact or examine a
deceased veteran may be an insurmountable obstacle to the proper
development and adjudication of a claim for benefits or to an accurate
rating of a disability.
Moreover, the notification requirements in section 3 of S. 1188
would impose an additional burden on VA's already overtaxed
adjudication system. Under section 5127(c), VA would be required to
notify ``the eligible person'' that the claim will be dismissed unless
an application for substitution is received within one year of the
claimant's death, within 6 months of the date of the Secretary's
notification, or within 3 months of notification of an adverse decision
under section 5121, whichever is latest. It appears that this provision
would require VA to send multiple notices because there is no way of
knowing which of several of potentially eligible persons is actually
eligible until they submit an application for substitution. Not only
would this provision require multiple notices, it would require a
burdensome search of the deceased's complete file to see if it
contained addresses of any individuals in the listed classes. In
addition, other VA records, such as hospital records, would apparently
have to be searched. Further, if VA records were found to contain
addresses of potentially ``eligible persons,'' VA would have to send
notices to all such persons, even if the information identifying them
was many years old and VA had no way of knowing whether they were
surviving.
Sections 3 and 4 of S. 1188 would not afford VA or a court
sufficient discretion in carrying out their provisions. Sections
5127(a) and 7270(b) would require VA or a court to approve ``any''
timely application for substitution submitted by an eligible person.
The substitution-of-parties portion of S. 1188 may be intended to
provide veterans' families with benefits in the same manner as is
currently done for survivors of Social Security claimants. The Social
Security Act provides for adjustment of underpayments of Supplemental
Security Income by payment to the underpaid individual's surviving
spouse or, if the underpaid individual was a disabled or blind child,
by payment to the child's surviving parents if the deceased individual
had lived with such spouse or parents within the 6 months preceding
death. 42 U.S.C. Sec. 1383(b)(1)(A). That Act also provides for
adjustment of underpayments of Old-Age and Survivors Benefits by
payment to survivors of the underpaid individual. 42 U.S.C.
Sec. 404(d). Thus, the current differences between treatment of Social
Security benefits and veterans benefits upon the death of an unpaid
individual are the two-year limitation on certain retroactive payments
under 38 U.S.C. Sec. 5121 and the parties to whom the unpaid benefits
can be paid. We believe that such differences can best be addressed by
eliminating the two-year-limitation, which is addressed by section 2 of
S. 1188, and by expanding that provision to authorize payment to adult
children.
VA estimates that enactment of these provisions of S. 1188 could
result in benefit costs of $16.1 million for FY 2004 and $62.5 million
for the period FY 2004 through FY 2013 and administrative costs of
$661,000 in FY 2004 and $2.6 million for the period FY 2004 through FY
2013.
S. 1199
S. 1199, the ``Veterans Outreach Improvement Act of 2003'' would
define the term ``outreach'' for title 38 purposes and would establish
a new subchapter IV under Chapter 5 of title 38, entitled ``OUTREACH,''
covering outreach funding and activities by the Department.
``Outreach'' would be defined as meaning the act or process of
reaching out in a systematic manner to proactively provide information,
services, and benefits counseling to potentially eligible beneficiaries
to ensure they are fully informed about and receive assistance in
applying for benefits.
The new subchapter would require that the Secretary establish a
separate ``outreach account,'' with sub-accounts for funding outreach
activities for each of VA's Administrations, i.e., Health (VHA),
Benefits (VBA), and National Cemetery (NCA), and require separate
budgeting for each sub-account. Subchapter IV, further, would require
VA to establish procedures for effectively coordinating outreach
activities between and among the Administrations, the Office of Public
Affairs, and the Office of the Secretary, with periodic review and
modification of such procedures to better achieve outreach
requirements. Finally, this new subchapter would require VA to assist
states in providing outreach and assistance in locations proximate to
eligible veteran populations and enter into cooperative agreements and
arrangements with veterans' agencies of the various States to
implement, coordinate, and improve such outreach. In this regard, VA
would be authorized to award grants to State veterans agencies to
achieve outreach purposes, including enhancing assistance in
development and submission of claims for veterans' and veterans'-
related benefits. The State agencies, in turn, could award these grants
to local governments or other entities in the State for such purposes.
Mr. Chairman, we certainly appreciate this interest in outreach
activities for veterans and their dependents. However, we already
provide extensive and effective outreach information and assistance,
and are implementing and planning new initiatives. Consequently, we
believe this measure is unnecessary.
S. 1199 would require a new infrastructure within the Department to
coordinate all Department outreach activities and to oversee the
proposed new outreach award grants. However, each VA Administration
currently has Outreach Coordinators/Offices assigned to develop,
implement, and oversee outreach activities. VA's Office of Public
Affairs has the responsibility to coordinate the outreach activities of
these three Administrations, in conjunction with the Secretary's
wishes. A strategic work group has been formed by the Deputy Assistant
Secretary for Public Affairs, which includes key executives and public
affairs representatives from all three Administrations. This existing
structure already affords the necessary internal and external
coordination to achieve VA's outreach objectives.
Recently such coordination has resulted in sharing of resources and
staffing at the Public Service Recognition Week activities at the
National Mall and for the upcoming AARP Conference in September 2003.
Further, NCA is teaming up with VHA and VBA to extend its message to
groups that more routinely come into contact with those entities. In
this regard, a comprehensive plan is being implemented to improve
awareness of NCA's benefits among VHA and VBA counselors and social
workers who, because of their direct contact with the hospice industry
and with families at the time of imminent loss, can be instrumental in
having burial benefit information distributed to those families. All VA
Administrations will be participating in a scheduled meeting to discuss
and coordinate the Department's FY 2004 outreach activities.
VA's field offices also engage in and are encouraged to sponsor
joint outreach events. This is currently being done in ``Stand-downs''
where the Homeless Outreach Coordinators from the regional offices and
medical centers work hand-in-hand in gaining sponsorship and staffing
of these worthwhile events.
Mr. Chairman, we view outreach as an extremely important part of
our mission to assure that no veteran or eligible dependent is left
behind in being made aware of the benefits VA provides and their
ability to apply for and receive all of those benefits to which they
may be entitled. We take this mission seriously in our efforts, for
example, to meet the existing title 38 requirements for outreach to
veterans and dependents, including specially targeted groups: recently
separated veterans, active duty personnel (to include Reserves/Guard),
elderly, homeless, women, Gulf War, those exposed to Agent Orange in
Vietnam, minority, Native American, Former Prisoners of War, service-
disabled, Asian and Pacific Islanders, eligible dependents, and first
time applicants for VA benefits and services. VHA has an aggressive
outreach program directed at veterans living on the streets and in
shelters who otherwise would not seek assistance, and at those veterans
suffering post-traumatic stress syndrome.
Although not covered by this bill, our outreach programs are not
limited to veterans and dependents, but include active duty and reserve
service members; partner organizations such as Veterans Service
Organizations, State approving agencies, military education counselors
and recruiters; as well as community service providers, lenders, the
funeral industry, and other non-veteran groups.
We certainly welcome and encourage the interest in and
participation of veterans' agencies and other agencies of the states in
outreach to veterans and their dependents. We will continue to
cooperate and coordinate with those agencies. However, we believe VA's
current outreach program meets the statutory requirements and provides
both the quality and uniformity of benefit information and assistance
necessary to be effective.
S. 1213
S. 1213 would amend title 38, United States Code, to improve
benefits for Filipino veterans of World War II, and their survivors,
who lawfully reside in the United States, by expanding their
eligibility for VA health care, compensation, DIC, and burial benefits.
S. 1213 would also extend VA's authority to maintain a regional office
in the Philippines through 2008. This bill reflects proposed
legislation submitted by the Secretary of Veterans Affairs to the
President of the Senate by letter dated May 12, 2003, and we greatly
appreciate the Chairman's courtesy in introducing S. 1213. The full
rationale and justification for this proposed legislation, as well as
our cost estimates, are contained in the Secretary's May 12th letter.
For the reasons stated in that letter, VA strongly supports this
legislation and recommends that Congress approve S. 1213 as introduced.
S. 1239--SPECIAL COMPENSATION FOR FORMER PRISONERS OF WAR
Section 2 of S. 1239, the ``Former Prisoners of War Compensation
Act of 2003,'' would add a new subchapter at the end of chapter 11 of
title 38, United States Code, to authorize special compensation for
former POW's. This special compensation would be in addition to any
service-connected disability compensation or pension to which a former
POW may be entitled and would be exempt from attachment, execution, or
levy in the same manner as special pension paid to Medal of Honor
recipients is exempt pursuant to 38 U.S.C. Sec. 1562. The bill would
authorize the Secretary of Veterans Affairs to pay monthly to each
former POW, including active duty personnel, special compensation at a
rate of payment determined by the cumulative length of confinement as a
POW. Thirty days would be the minimum period of confinement for which a
former POW would be eligible to receive special compensation. The bill
would establish three rates of special compensation based on the length
of the period of the former POW's confinement, as follows:
------------------------------------------------------------------------
Special Compensation
Length of Former POW's Confinement Monthly Rate
------------------------------------------------------------------------
30-120 days.................................... $150.00
121-540 days................................... $300.00
541 days or more............................... $450.00
------------------------------------------------------------------------
We estimate that benefit-costs for the POW portion of the bill
would be $134.4 million for FY 2004 and $839.5 million for FY 2004
through FY 2013. We estimate administrative costs to be an additional
one-time cost of $654,000 in the first year. These amounts are not
included in the President's FY 2004 budget request, so the Department
cannot support this provision's enactment. However, we are sensitive to
the contributions and needs of former POW's and will consider
additional benefits for them in formulating future budget requests. I
would add that we have recently submitted legislation to remove the
minimum internment periods for purposes of POW's dental care and
presumptions of service connection, and to exempt them from the co-
payments for VA medications.
PROHIBITION AGAINST COMPENSATION FOR SUBSTANCE-ABUSE DISABILITIES
Section 3(a) of S. 1239 would amend 38 U.S.C. Sec. Sec. 1110 and
1131 to clarify that the prohibition on payment of compensation for a
disability that is a result of the veteran's own abuse of alcohol or
drugs applies even if the abuse is secondary to a service-connected
disability. Section 3(b) would make that amendment applicable to claims
filed on or after the date of enactment and to claims filed prior to,
but not finally decided as of that date. We strongly support this
provision, which is also proposed in the President's budget.
Sections 1110 and 1131 of title 38, United States Code, authorize
the payment of compensation for disability resulting from injury or
disease incurred or aggravated in line of duty in active service,
during a period of war or during other than a period of war,
respectively. Sections 1110 and 1131 also currently provide, ``but no
compensation shall be paid if the disability is a result of the
veteran's own willful misconduct or abuse of alcohol or drugs.'' Before
their amendment in 1990, the provisions currently codified in sections
1110 and 1131 prohibited compensation ``if the disability is the result
of the veteran's own willful misconduct.'' In 1990, they were amended
to also prohibit compensation if the disability is a result of the
veteran's own alcohol or drug abuse.
VA had long interpreted those provisions to authorize compensation
not only for disability immediately resulting from injury or disease
incurred or aggravated in service, but also for disability more
remotely resulting from such injury or disease. That interpretation is
embodied in 38 C.F.R. Sec. 3.310(a), which provides that, generally,
disability which is proximately due to or the result of a service-
connected disease or injury shall be service connected. Thus, VA does
pay, in specific cases, compensation for primary service-connected
disability and for secondary service-connected disability. However,
consistent with the plain meaning of sections 1110 and 1131, if a
disability, whether primary or secondary, is a result of the veteran's
own alcohol or drug abuse, VA did not pay compensation.
This has changed. On February 2, 2001, a three-judge panel of the
United States Court of Appeals for the Federal Circuit interpreted
section 1110 as allowing compensation for an alcohol or drug-abuse-
related disability arising secondarily from a service-connected
disability. Allen v. Principi, 237 F.3d 1368, 1370 (Fed. Cir. 2001).
More specifically, the panel held that section 1110 ``does not preclude
compensation for an alcohol or drug abuse disability secondary to a
service-connected disability or use of an alcohol or drug abuse
disability as evidence of the increased severity of a service-connected
disability.'' Id. at 1381. The Government filed a petition for
rehearing and rehearing en banc, which the panel and full court denied
on October 16, 2001. Allen v. Principi, 268 F.3d 1340, 1341 (Fed. Cir.
2001). However, five of the eleven judges who considered the petition
for rehearing en banc dissented from the order denying rehearing,
opining that the court's interpretation is wrong. 268 F.3d at 1341-42.
We are concerned that payment of additional compensation based on
the abuse of alcohol or drugs is contrary to congressional intent and
is not in veterans' best interests because it provides an incentive to
engage in debilitating and self-destructive behavior by providing
additional compensation for the disability caused by such behavior.
The Federal Circuit's interpretation in Allen could also greatly
increase the amount of compensation VA pays for service-connected
disabilities. Under the court's interpretation, any veteran with a
service-connected disability who abuses alcohol or drugs is potentially
eligible for an increased amount of compensation if he or she can offer
evidence that the substance abuse is a result of a service-connected
disability, i.e., that the substance abuse is a way of coping with the
pain or loss the disability causes. Under this interpretation, alcohol
or drug abuse disabilities that are secondary to either physical or
mental disorders are compensable.
The potential for increased costs is illustrated by mental
disorders, which are frequently associated with alcohol and drug abuse.
Almost 421,000 veterans are currently receiving compensation for a
service-connected mental disability. About 324,000 of those
disabilities are currently rated less than 100 percent and could
potentially be rated totally disabling on the basis of secondary
alcohol or drug abuse. Even if the service connection of disability
from alcohol or drug abuse does not result in an increased schedular
evaluation, temporary total evaluations could be assigned whenever a
veteran is hospitalized for more than twenty-one days for treatment or
observation related to the abuse. Even the 97,000 cases of a service-
connected mental disability evaluated at 100 percent disabling have
potential for increased compensation for secondary alcohol or drug
abuse if the statutory criteria for special monthly compensation are
met.
The potential increase in compensation does not end there. Under
the Federal Circuit's interpretation, VA is required to pay
compensation for the secondary effects of the abuse of alcohol or
drugs. Once alcohol or drug abuse is service connected as being
secondary to another service-connected disability, then service
connection can be established for any disability that is a result of
the service-connected abuse of alcohol or drugs. If alcohol or drug
abuse results in a disease, such as cirrhosis of the liver, then that
disease would also be service connected and provide a basis for
compensation under the court's interpretation.
Of course, an increase in the amount of compensation VA pays for
service-connected disabilities will increase the benefit cost of the
compensation program. Section 3 of S. 1239 would avoid those increased
costs. Our estimate of savings that would result from enactment of this
provision is based on the payment of only basic compensation for
alcohol or drug abuse disabilities secondary to service-connected
disabilities. We estimate that this provision would result in benefit
savings of $127 million and administrative savings of $44 million in FY
2004 and benefit savings of $4.6 billion and administrative savings of
$97 million for the ten-year period FY 2004 through FY 2013. This
amount does not include the savings that would be associated with
payment of compensation for temporary total evaluations, special
monthly compensation, or compensation for the secondary effects of
alcohol or drug abuse.
DENTAL CARE FOR FORMER PRISONERS OF WAR
Section 4 of S. 1239 would require VA to provide outpatient dental
services and treatment, and related dental appliances, for any non-
service-connected dental condition or disability from which a veteran
who is a former POW is suffering. Currently, a veteran who is a former
POW may receive dental benefits for non-service-connected dental
conditions or disabilities only if the veteran was incarcerated for 90
days or more. By eliminating the 90-day requirement, section 4 would
authorize VA to treat all former POW's the same, regardless of their
length of captivity, with respect to dental care for a non-service-
connected condition or disability. It would also make the eligibility
rules for dental benefits for former POW's the same as for other
health-care services for former POW's.
This provision is identical to VA's recent proposal, and we
strongly support its enactment.
Costs resulting from enactment of this provision would be
insignificant.
S. 1282
S. 1282 would direct the Secretary of Veterans Affairs to establish
national cemeteries for geographically underserved populations of
veterans. It would direct the Secretary to identify the ten burial
service areas in the United States, as determined by the Secretary,
most in need of a new national cemetery to ensure that 90 percent of
the veterans who reside in each service area live within 75 miles of a
national cemetery. The bill would define ``burial service area'' as
having a radius of approximately 75 miles, containing a minimum
population of approximately 170,000 veterans, and not being served by a
national or state veterans' cemetery. In addition, the bill would
direct the Secretary to submit to Congress a report setting forth each
burial service area identified by the Secretary as needing a cemetery
and a schedule and cost estimate for the establishment of each new
national cemetery. The first report would be due within 120 days after
the date of enactment, and annual status reports would be required
until the ten cemeteries were completed.
Not all of America's veterans and their families have easy and
convenient access to a national cemetery. In the Veterans Millennium
Health Care and Benefits Act, Pub. L. No. 106-117 (1999), Congress
directed VA to identify areas of the country with the greatest
concentrations of veterans who do not have reasonable access to a
burial option in a national or state veterans' cemetery. Substantial
documentation demonstrates that 80 percent of burials in national
cemeteries involve individuals who resided within 75 miles of the
cemetery. VA has determined that a veteran population threshold of
170,000 within a 75-mile service radius is an appropriate threshold for
the establishment of a new national cemetery.
In response to the Veterans Millennium Health Care and Benefits
Act, on May 15, 2002, VA transmitted to Congress a report entitled,
Study on Improvements to Veterans Cemeteries--Volume 1: Future Burial
Needs. An independent contractor, Logistics Management Institute (LMI),
prepared the report. It assesses the number of additional cemeteries
needed to ensure that 90 percent of veterans live within 75 miles of a
national or state veterans' cemetery between 2005 and 2020. The report
identified 31 locations recommended by LMI as areas of greatest need.
Six sites had over 170,000 veterans who currently were not being served
by a burial option by a state or national cemetery within 75 miles of
their residences. On June 4, 2003, VA transmitted revised veteran
population estimates, based on 2000 United States Census data. From the
two listings, eleven locations were identified as meeting VA's
population threshold. VA plans to meet the identified unmet burial
needs in each location by either establishing a new national cemetery
or expanding an existing national cemetery.
Several steps are involved in establishing a new national cemetery.
Depending on the size of the project, the cost of these steps can range
from $100,000 to $250,000 for environmental compliance requirements; $3
million to $6 million for land acquisition, if required; $1 million to
$2 million for master planning and design; and $15 million to $25
million for construction. Even with an aggressive schedule, it
generally takes 4\1/2\ to 5 years to open a cemetery to initial
burials. A new national cemetery's average annual operating costs range
between $1 million and $2 million, without consideration of headstones
and grave liners, which are purchased through mandatory funds.
Because the Future Burial Needs report released last year and the
updated demographic data transmitted to Congress earlier this year
satisfy the intent behind S. 1282, enactment of this bill is
unnecessary. However, VA is committed to begin addressing those
identified locations with unmet burial needs within the annual
budgetary process.
S. 1360
Section 1(a) of S. 1360 would amend 38 U.S.C. Sec. 7105(b) to
provide, in effect, that a writing filed by a claimant, a claimant's
legal guardian, an accredited representative, attorney, or authorized
agent, or a legal guardian expressing disagreement with a decision of
an agency of original jurisdiction shall be recognized as a notice of
disagreement (NOD). The amendment made by section 1(a) would apply to
any document filed on or after the date of enactment of S. 1360 and any
document filed prior to the date of enactment that was not rejected as
an NOD by VA as of that date. Section 1(b) of S. 1360 would provide
that, if a document filed as an NOD between March 15, 2002, and the
date of enactment of S. 1360 meets the requirements of section 1(a) for
an NOD, but VA determined that it did not constitute an NOD pursuant to
38 C.F.R. Sec. 20.201, VA would have to treat the document as an NOD if
the claimant makes a request, or VA makes a motion, within one year
after the date of enactment, to treat it as a NOD.
S. 1360 would overturn the decision of the United States Court of
Appeals for the Federal Circuit in Gallegos v. Principi, in which that
court held that 38 C.F.R. Sec. 20.201, defining an NOD as a writing
expressing a desire for appellate review, is a reasonable and
permissible construction of 38 U.S.C. Sec. 7105, which sets forth the
necessary steps for appellate review by the Board. Defining a writing
as an NOD irrespective of whether it expresses a desire for appellate
review would represent a major change in the statutory scheme of 38
U.S.C. Sec. 7105, which refers to an NOD only in the context of
initiating an appeal to the Board.
It does not serve veterans to initiate appeals of their claims
against their wishes. However, requiring VA to treat any document
disagreeing with an initial VA determination or decision on a claim as
an NOD, without regard to whether it expresses a desire for appellate
review, would impose a substantial burden on the VA claims adjudication
system and hinder us in achieving our objective of improving the
efficiency of claim adjudications and reducing the time necessary to
resolve claims. VA is inundated on a daily basis by myriad
correspondence from claimants and their representatives. Under the
proposed amendment, in any case in which such correspondence could be
construed as expressing disagreement with an initial claim decision, VA
would be required to initiate a time-consuming, multi-step process
under which it is obligated to reexamine the claim and determine if
additional review or development is warranted and, ultimately, prepare
a statement of the case summarizing the evidence, citing applicable
laws and explaining their affect, and providing the reasons for making
the determination in question. This process would apparently be
required even in cases where, although a claimant has expressed
disagreement with a VA decision, it is quite plain from the claimant's
submission that the claimant has no desire for appellate review of the
decision.
VA opposes S. 1360 and believes that the goal of the bill can
better be achieved by amending VA's procedures to assure that VA
ascertains the intent of a claimant who expresses disagreement with an
initial VA claim decision.
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. Jim Bunning
to Daniel Cooper
Question: VA supports legislation restoring the traditional
prohibition on disability compensation for drug and alcohol related
disabilities. But even if we prohibit those benefits, drug and alcohol
abusing veterans will still receive compensation for other disabilities
that can be used to feed their habit. Would the VA support prohibiting
all payments to abusing veterans until they successfully complete
substance abuse treatment?
Answer: VA's justification for opposing compensation for
disabilities resulting from substance abuse was primarily that
compensating for such disabilities can provide an incentive for
engaging in disability-producing behaviors. Compensating for other
disabilities not related to substance-abuse does not provide an
incentive for drinking excessively or using drugs illegally (although
it may provide the means for obtaining them). Furthermore, it would be
counterproductive to deny such veterans the assistance in supporting
themselves and their families such compensation is meant to provide.
Senator Nelson of Nebraska. I understand there may be 46
pages to your written testimony.
Mr. Cooper. Yes, sir.
Senator Nelson of Nebraska. It is admitted to the record
and it will be reviewed. We appreciate it very much, Admiral.
Were there any other comments from anybody else here with you?
Mr. Cooper. No, sir, I believe no.
Senator Nelson of Nebraska. We do not have the time for
extended questions for the witnesses or to hear oral statements
of the veterans service organizations. I am sorry. I assume the
witnesses, your written statements are going to be in and the
committee members will have an opportunity to question the
witnesses in writing, which we traditionally do and will be
glad to do.
[Statements of various veterans service organizations
follow:]
Prepared Statement of Phillip R. Wilkerson, Deputy Manager of
Operations and Training, Veterans Affairs and Rehabilitation, The
American Legion
Mr. Chairman and members of the Subcommittee: Thank you for this
opportunity to present The American Legion's views on these important
issues. We commend the Subcommittee for holding this hearing.
S. 257--THE VETERANS BENEFITS AND PENSION PROTECTION ACT OF 2003
This legislation amends 38 U.S.C. Sec. 5301, and prohibits any type
of agreement assigning the payment of a veteran's compensation,
pension, or survivor's DIC benefits to another person to include
penalties against persons entering into such agreements with a veteran
or other beneficiary.
The American Legion is concerned by reports of various loan scams
used by unscrupulous companies and individuals to take advantage of
unsuspecting, sick and disabled veterans and their families. These
entities offer instant lump-sum cash payment in exchange for the
individual's VA benefits. However, the actual payment is steeply
discounted by 60-70 percent or higher, according to a VA investigation.
The companies go to great lengths to avoid calling these arrangements
loans, which could violate State and Federal laws against loan sharking
and truth-in-lending requirements. Veterans should be free to do what
they want with their benefits; however, there is a loophole in the
current law that should be closed to prevent veterans from being
victimized by such predatory practices.
This legislation also authorizes the appropriation of $3 million to
be used over the next four years by VA for the purpose of outreach and
education concerning the prohibition to assignment of their veterans'
benefits and financial risks of entering into any such an arrangement.
The American Legion believes this proposal will help protect veterans
and other beneficiaries and provide substantial penalties for violators
of the law.
S. 517--THE FRANCIS W. AGNES PRISONER OF WAR BENEFITS ACT OF 2003
This legislation eliminates the current requirement in 38 U.S.C.
Sec. 1112(b), that an individual had to have been detained or interned
for a period of not less than 30 days in order to be entitled to
presumptive service connection. This bill also eliminates the
requirement that an individual be detained or interned for a period of
no less that 90 days in order to be eligible for VA outpatient dental
treatment.
The American Legion has long supported the elimination of these
requirements. Studies have shown that there can be long lasting adverse
health effects resulting from even a relatively short period of
confinement as a prisoner of war. Access to medical and dental care is
important factors in helping maintain these particular veterans'
overall good health and strongly support the change in law.
The bill also expands the list of presumptive prisoner-of-war
diseases in 38 U.S.C. Sec. 1112, to include heart disease, stroke,
liver disease, diabetes mellitus, and osteoporosis. It specifically
authorizes the Secretary of Veterans Affairs to create regulations
adding or deleting diseases enumerated in Sec. 1112(b), on the basis of
sound medical and scientific evidence, to include recommendations from
the VA's Advisory Committee on Former Prisoners of War.
This legislation represents a solid step toward ensuring former
POW's receive the compensation and medical care they are clearly
entitled to. In addition to those diseases that would be presumed to be
service connected, The American Legion recommends that the list also
include the organic residuals of hypothermia, e.g. trench foot,
immersion foot or hand, or Raynaud's Disease; arthritis, including
osteoporosis; and chronic pulmonary disease where there is a history of
forced labor in mines during captivity.
S. 1131--THE VETERANS' COMPENSATION COST-OF-LIVING ADJUSTMENT ACT OF
2003
This legislation increases the rates of compensation and dependency
and indemnity compensation (DIC), effective December 1, 2003. This
adjustment is the same percentage as that authorized for Social
Security recipients. The American Legion believes that annual cost-of-
living adjustments (COLAs) are necessary to ensure that the benefits
provided service disabled veterans and their survivors keep pace with
inflation.
S. 1133--THE VETERAN'S BENEFITS IMPROVEMENT ACT OF 2003
Section 2, increases the rates of compensation and DIC, effective
December 1, 2003. This adjustment would be at the same percentage as
that authorized for Social Security recipients. The American Legion
believes that annual COLAs are necessary to ensure that the benefits
provided service disabled veterans and their survivors keep pace with
inflation.
Section 3, repeals the 45-day effective date rule for the award of
death pension. In many instances, the surviving spouse is unable to
meet this restrictive and arbitrary filing deadline and, as a result,
benefits for this period to which they would otherwise be entitled are
lost.
Section 4, amends title 38, U.S.C., Sec. 1503 to exclude lump-sum
proceeds of any life insurance policy on a veteran for the purposes of
determining entitlement to death pension. This includes both government
as well as commercial life insurance policies. Under the current rule,
the effective date of award that applies in death pension cases is the
first day of the month in which the veteran's death occurred, only if
the application was received within 45 days of the date of death.
Otherwise, it will be based on the date the claim is received.
If a surviving spouse receives the veteran's life insurance
proceeds within 45 days of the veteran's death, but does not file a
claim for death pension until some time after, the insurance proceeds
are not considered as countable income for VA death pension purposes.
If the proceeds are received and a claim for death pension are filed
within 45 days of the veteran's death, the proceeds are then considered
countable income, which may disqualify the surviving spouse for pension
benefits for the entire year. The American Legion does not believe
these surviving spouses should be put in this position.
The American Legion also supports an increase in the surviving
spouse's pension rate to 90 percent of that for a veteran without
dependents as well an exclusion of the proceeds from Government life
insurance policies from countable income.
Section 5, prohibit the payment of compensation for a drug or
alcohol disability, even if the abuse were secondary to a service-
connected disability.
The American Legion is concerned with this provision. It proposes
the amendment of title 38, U.S.C., Sec. 1110 and 1131, to specifically
provide that disability compensation shall not be paid to any veteran,
which would include a former prisoner of war, who is suffering from an
alcohol or substance abuse disability even when such disability is
determined to be secondary to a service connected disability. The
American Legion has always held the position that veterans who succumb
to alcohol or drug-abuse that is caused by their service-connected
disability are entitled to a level of compensation that reflects all
aspects of their disability. These disabled veterans are in a very
different class from those individuals who become alcoholics or drug
abusers because they have engaged in conscious, willful wrongdoing or
prohibited behavior. The American Legion is opposed to any attempt to
legislate away the rights of veterans who are suffering from
disabilities resulting from their military service. At the April 2003
hearing before the House of Representatives Subcommittee on Benefits,
The American Legion testified similarly on H.R. 850, which contains the
same bar to benefits.
Clearly, the intent of this proposal is to overturn the 2001
decision of the United States Court of Appeals for the Federal Circuit
(the Federal Circuit or the Court) in Allen v. Principi, 237 F.3d 1368
(Fed. Cir., 2001). The Court held that Congress, in enacting P.L. 96-
466, the ``Omnibus Budget Reconciliation Act of 1990'' (OBRA 90), did
not intend to preclude compensation for an alcohol or drug-related
disability resulting from or secondary to a non-willful misconduct
service-connected disability. Prior to OBRA 90, VA considered
alcoholism and drug abuse disabilities unrelated to a service connected
psychiatric disorder as willful misconduct. The term ``willful
misconduct'' was defined in VA regulations as a deliberate and
intentional act involving conscious wrongdoing or known prohibited
action, with knowledge of or wanton and reckless disregard of the
probable consequences. However, the definition noted that the mere
technical violation of police regulations and ordinances would not, per
se, constitute willful misconduct unless it is the proximate cause of
injury, disease, or death. VA's policy was that the misconduct bar to
benefits did not apply to those veterans whose alcohol or drug
addiction was secondary to a service connection mental or physical
disability. OBRA 90 specifically provided in 38 U.S.C. Sec. Sec. 1110
and 1131, that an injury or disease resulting from the abuse of alcohol
or drugs is not considered to have been incurred in the line of duty
and VA may not pay compensation for disabilities that are the result of
``the veteran's own willful misconduct or alcohol or drug abuse.''
Under OBRA 90, VA as a matter of policy and practice, would not grant
secondary service connection for substance abuse, but would, where
appropriate, incorporate the symptoms of alcohol and drug abuse into
the overall evaluation of the primary service connected disability. As
an example, a veteran may have been rated for ``PTSD with alcoholism.''
In 1998, the United States Court of Appeals for Veterans Claims (CVAC),
in Barela v. West (11 Vet. App. 280) (1998), held that, while OBRA 90
provided for service connection of alcohol and drug-related
disabilities as being secondary to a service connected disability, VA
could not pay compensation for such disabilities.
As a result of the Federal Circuit's interpretation of 38 U.S.C.
Sec. Sec. 1110 and 1131, in the Allen decision, there are now three
possible categories of disabilities involving alcohol and drug abuse.
There is the category where an alcohol or drug abuse disability,
developing during service, which results from the voluntary and willful
abuse of alcohol or drugs and OBRA 90 still bars service connection for
primary alcoholism or drug addiction and any associated disability.
Then, there is the category where an alcohol or drug abuse disability
is recognized as secondary to a service connected condition. And the
category where there are disabilities that result from or are
aggravated by an alcohol or substance abuse disability for which
secondary service connection has been established
Scientific studies over the years have highlighted the fact that
there is a higher incidence of substance abuse problems among veterans
who suffer from severe physical or psychiatric disabilities. A recent
article by Dr. Andrew Meisler, entitled ``Trauma, PTSD, and Substance
Abuse'', from the PTSD Research Quarterly notes, ``Studies of
individuals seeking treatment for PTSD have a high prevalence of drug
and/or alcohol abuse.'' Research has suggested ``that 60-80 percent of
treatment seeking Vietnam combat veterans with PTSD also met the
criteria for current alcohol and/or drug abuse.'' Also cited was a
study of Persian Gulf War veterans that found a PTSD diagnosis was
strongly linked to problems with depression and substance abuse which
supports earlier research on co-morbidity. If enacted, this provision
would severely penalize veterans whose service connected condition has
caused them to develop an alcohol or drug-abuse disability.
The American Legion believes Congress should not be seeking ways to
deprive these veterans of their right to compensation benefits earned
by virtue of their service to this nation. It is recommended that
Section 5 of this bill be stricken, so that the merits of the other
benefit provisions of S. 1131 can be clearly considered.
Section 6, provides several enhancements to the VA insurance
program and The American Legion is supportive of their enactment.
Regarding life insurance settlements to alternate beneficiaries,
when principal beneficiaries cannot be located, VA has some 4,000
outstanding cases. These represent approximately $23 million in
insurance with some 200 new cases added each year, in which life
insurance proceeds cannot be paid under the existing rules. This
creates a situation where the original intent of the life insurance
contracts is negated by current law, and settlement to a contingent or
other equitably entitled person(s) cannot be made. Further, the VA
advises the number of such cases where a principal beneficiary does
finally come forward at some later date to make a claim for proceeds is
approximately one or two per year.
The American Legion believes this proposed change would better
serve the affected veteran's population in general, and provide a more
fair and reasonable solution in ensuring the fulfillment of the intent
of these insurance contracts than does existing law.
The American Legion recommends VA consider the feasibility of
additionally permitting a face value payment in those cases where a
principal beneficiary does come forward, even though full payment of
proceeds has already been rendered. This is a reasonable provision from
the standpoint of equity and good conscience and because of the extreme
rarity of such occurrences.
Section 7, amends 38 U.S.C. Sec. 5102 to provide that if
information a claimant or the claimant's representative has been
notified of that is necessary to complete an application is not
received by VA within one year of such notification, no benefit may be
paid or furnished by reason of the claimant's application.
This amendment addresses several problems with existing provisions
of the law relating to the absence of any time limitation on the
receipt of information needed to complete a claimant's application.
Prior to the enactment of the VCAA, Sec. 5103 requires VA to notify the
claimant of evidence or information needed to complete the application
and give the claimant one year within which to respond, otherwise the
claim will be considered abandoned. Now, in the absence of a specific
time limit in Sec. 5102, the application technically remains pending
indefinitely and could be the basis for a claim for retroactive
benefits. The American Legion believes this was an oversight in the
VCAA and supports this clarification.
Section 8, amends 38 U.S.C. Sec. Sec. 2303 and 2307 to authorize
the payment of the current $300 plot allowance to a state when an
eligible veteran is interred in a state veterans' cemetery. The
American Legion continues to support the State Cemetery Grants Program
as an important adjunct and complement to the National Cemetery System
in helping meet veterans' burial needs. The American Legion supports
additional financial support for the operation of state veterans'
cemeteries.
Section 9, extends entitlement to a government headstone or grave
marker regardless of whether the veteran's grave already had a non-
government marker back to November 1, 1990. P.L. 107-103, as amended,
authorized the furnishing of a government headstone or grave marker
where a veteran's grave was already marked by a private headstone for
those veterans who died after September 11, 2001. The proposed change
is consistent with this effort to assist those families who wish to
have the veteran's service recognized and honored by having a
government headstone or marker placed on the veterans' grave.
Section 10, authorizes the burial of a remarried surviving spouse
in a national cemetery. The American Legion has no formal position on
this proposal.
Section 11, amends 38 U.S.C. Sec. 2408, to permanently authorize VA
to make grants to states for the establishment, expansion, and
improvements to state veterans' cemeteries. The American Legion
continues to support efforts to improve the State Cemetery Grants
Program and believe the enactment of this provision will enhance VA's
long-term planning ability for this program.
Section 12, amends 38 U.S.C. Sec. 6105 by adding conviction for
offenses involving biological and chemical weapons, nuclear material,
genocide, and weapons of mass destruction to those offenses currently
enumerated in Sec. 6105. The American Legion's historic position is
that an individual who acts against the national interests of the
United States and its citizens forfeits the right to any benefits based
on prior military service in the United States Armed Forces.
Section 13, extends the life of the Veterans' Advisory Committee on
Education. The committee provides valuable assistance to the Department
in developing and carrying out the various program of educational
assistance to veterans and other eligible beneficiaries. The American
Legion continues to support the work of the Advisory Committee and
fully supports extending it through December 31, 2009.
Section 14, terminates VA's authority to provide loans under 38
U.S.C., Subchapter III of Chapter 36, and the repeal of the Educational
Loan Program under this subchapter. The American Legion has no formal
position on this proposal.
Section 15, authorizes the extension of the delimiting period for
Chapter 35 educational assistance benefits to an eligible individual
who is a member of the National Guard and who is involuntarily called
to full-time National Guard duty.
Current law allows for an extension of the Chapter 35 delimiting
period, if the individual serves on active duty. In view of the
expanded duties and responsibilities of the National Guard in
supporting and augmenting the active duty armed forces, The American
Legion strongly believes it is both fair and timely to recognize their
valuable role in the overall defense of the nation. This change to the
Chapter 35 program ensures that entitlement to these educational
assistance benefits is preserved during their period of active service
in the National Guard. The American Legion fully supports this
proposal.
Section 16, provides for the expansion of benefits under the
Montgomery GI Bill for certain self-employment training. It allows
qualified veterans to utilize their GI Bill entitlement for training in
state accredited courses that provide the knowledge and skills needed
for successful self-employment.
The American Legion recognizes that there are non-traditional
employment opportunities available in today's economy and veterans
should be allowed to utilize their earned educational benefits to
pursue self-employment options. The Montgomery GI Bill is an important
tool in assisting veteran's transitioning from the military to civilian
life and the program must continue to evolve in response to veterans'
changing educational needs.
S. 1188
This legislation repeals the two-year limitation on the payment of
accrued benefits to which a claimant would have otherwise been entitled
to at the time of their death, as currently set forth in 38 U.S.C.
Sec. 5121. It authorizes the continuation of a claim that was pending
at the time of the claimant's death by the substitution of another
eligible person. It similarly authorizes the substitution of a claimant
in a pending appeal before a court.
VA currently has over 279,000 pending claims and another 102,000
cases requiring some type of action. While considerable progress has
been made over the past year in reducing the overall backlog with
particular attention to the older pending claims, a substantial number
of these cases have essentially been ``in process'' for years.
Conversely, as pending claims have been reduced pending appeals have
increased; currently 105,000 appeals await adjudication by VA.
The veterans filing claims and appeals are very ill and, because of
the long processing times, may, unfortunately, die before a final
decision is ever made on their claim. The delays they and their
families experience can result in adverse health effects and financial
hardship. Upon the veteran's death, the pending claim or appeal also
dies, unless a claim for accrued benefits is filed within one year of
the veteran's death. Regardless of how long the veteran's case had been
pending, whether at the regional office level or the Board of Veterans
Appeals or court, an eligible survivor can only receive a maximum of
two years retroactive benefits, rather than the full amount the veteran
would have been entitled to had he or she lived.
The American Legion's longstanding position has been that any
limitation on the payment of accrued benefits is unfair. The enactment
of P.L. 104-275 in 1996, which extended entitlement to accrued benefits
from one year to two years, was a step in the right direction. However,
it fell short of providing appropriate compensation to the veteran's
family in a claim that had been pending for more than two years prior
to the veteran's death. Under this legislation, the full amount of
accrued benefits could also be paid where there was an appeal pending
before a court at the time of the claimant's death.
S. 1213
This legislation improves benefits to qualified Filipino veterans
legally residing in the United States, including medical care,
compensation and DIC, and burial. It also authorizes VA to furnish
hospital, nursing home care, and other medical services to former
members of the Philippine Commonwealth Army and New Philippine Scouts
residing in the United States as a U.S. citizen or as a permanent
resident alien.
In addition, extends VA's authority to maintain a regional office
in the Philippines through December 31, 2005. The American Legion has
long supported the continued presence of a VA Regional Office in the
Philippines to help assist these veterans and their families. The
American Legion continues to advocate for the earned veterans benefits
of those Filipino Commonwealth soldiers who served and were recognized
as members of the U.S. Armed Forces during World War II, and fully
supports this legislation.
S. 1239
This legislation establishes a special compensation program for
former prisoners of war based on the length of their confinement. It
authorizes payment of $150 monthly for those held up to 120 days; $300
monthly, if held more than 120 days but less than 540 days; and $450
monthly, if held more than 540 days. This benefit would not be affected
by any other benefits to which the veteran may be entitled and is not
considered income or resources for purposes of determining eligibility
for any Federal or federally-assisted program.
The American Legion takes no formal position on this proposal.
Mr. Chairman, Section 3 of 1239 is the same as Section 5 of S.
1133. The American Legion has the same concerns. The American Legion
reiterates its position that Congress should not seek ways to deprive
former American prisoners of war their right to compensation benefits
earned by virtue of their service to this nation.
S. 1281--THE VETERANS INFORMATION AND BENEFITS ENHANCEMENT ACT OF 2003
This legislation expands presumption of service connection for
additional diseases of former prisoners of war for compensation
purposes and enhances the Dose Reconstruction Program of the Department
of Defense (DoD), and other epidemiological studies.
Section 3, mandates VA and the DoD to jointly conduct a review of
the Defense Threat Reduction Agency's (DTRA) Dose Reconstruction
Program and to determine whether any additional action is required to
ensure the quality control and assurance mechanisms of the program are
adequate. In addition, VA would determine whether any actions are
required to ensure the communication and interaction with veterans were
adequate, including mechanisms to permit veterans to review the
assumptions utilized in their dose reconstructions. It also establishes
a VA/DoD advisory board to provide review and oversight of the Dose
Reconstruction Program.
Since the 1980s, claims by ``atomic veterans'' exposed to ionizing
radiation for a radiogenic disease, which is not among those listed in
38 U.S.C. Sec. 1112(c)(2), have required an assessment to be made by
DTRA as to nature and amount of the veteran's radiation dose(s), in
accordance with 38 C.F.R. Sec. 3.311. Under this guideline, ``When dose
estimates provided pursuant to paragraph (a)(2) of this section are
reported as a range of doses to which a veteran may have been exposed,
exposure at the highest level of the dose range will be presumed.''
From a practical standpoint, VA routinely denied the claims by many
atomic veterans on the basis of dose estimates indicating minimal or
very low-level radiation exposure.
As a result of the case of National Association of Radiation
Survivors (NARS) v. VA, and studies by GAO and others of the U.S.'s
nuclear weapons test program, the accuracy and reliability of the
assumptions underlying DTRA's dose estimate procedures came under
public scrutiny. It has been shown that very often many of the records
from nuclear weapons tests including individual film badges had been
lost or are incomplete. Also noted, not all participants were issued
dosimeter badges or had been worn at all times. Information about an
individual's activities during these tests has often been sketchy or
completely lacking, which raises further uncertainties about the method
by which DTRA developed the reported dose estimates.
On May 8, 2003, the National Research Council's Committee to Review
the DTRA Dose Reconstruction Program released its report. It confirmed
the often-unheeded complaints of thousands of atomic veterans that,
historically, DTRA's dose estimates have often been based on arbitrary
assumptions resulting in underestimating the amount of actual radiation
exposure. Based on a sampling of past DTRA cases, it was found that
existing documentation of the individual's dose reconstruction, in a
large number of cases was unsatisfactory and evidence of any quality
control was absent.
The committee concluded their report with a number of
recommendations that would, in their opinion, improve the dose
reconstruction process of DTRA and VA's adjudication of claims by
atomic veterans. These recommendations included: the establishment of
an independent advisory board to provide ongoing external review and
oversight of DTRA's dose reconstruction and VA claims adjudication
process; reevaluate the method of dose reconstruction to establish more
credible upper-bound estimates; a comprehensive manual for standard
operating procedures for dose reconstruction; a state-of-the-art
quality assurance and quality control; the principle of the benefit of
the doubt be consistently applied in all dose reconstructions;
interaction and communication with atomic veterans be improved. It
further recommended to include allowing individual atomic veterans to
review the scenario assumptions used in their dose reconstruction
before this information is furnished to VA; and create more effective
methods to communicate the meaning of the radiation risk information;
and that information should be disseminated to the community of atomic
veterans advising them and their survivors of changes in the method of
dose reconstruction and the possibility of have prior assessments
updated and a reopening of their prior VA claim.
The American Legion was encouraged by the mandate for a study of
the dose reconstruction program. While pleased that S. 1281 is
responsive to the committee's recommendation, nonetheless, The American
Legion is concerned that the dose reconstruction program may still not
be able to provide the type of information that is needed for atomic
veterans to receive fair and proper decisions from VA. Congress should
not ignore the fact that, according to the National Research Council's
report and other reports, the dose estimates furnished VA by DTRA over
the past fifty years have been flawed and have seriously prejudiced the
adjudication of the claims of tens of thousands of atomic veterans. It
remains practically impossible for an atomic veteran or their survivor
to effectively challenge a DTRA dose estimate.
The American Legion believes that before the proposed advisory
committee begins to consider possible changes in dose reconstruction
procedures, they should address the fundamental question of whether the
dose reconstruction program, as it relates to the requirements of 38
C.F.R. Sec. 3.309, should continue. The American Legion believes this
provision should be eliminated in the claim of a veteran with a
recognized radiogenic disease who was exposed to ionizing radiation
during military service.
The American Legion supports the portion of S. 1281 pertaining to
the Report on the Disposition of USAF ``Ranch Hand'' study. Although
The American Legion has objected to the way the Ranch Hand study has
been conducted, we realize that vast quantities of data have been
accumulated during the last 20 years. Since such data could be
potentially valuable for future research, a thorough study regarding
the disposition of Ranch Hand study, and associated data, upon the
conclusion of the study is warranted.
S. 249
This legislation amends 38 U.S.C. Sec. 103(d), to establish the
remarriage of a surviving spouse of a veteran in receipt of dependency
and indemnity compensation (DIC) after the age of fifty-five would not
result in the termination of DIC benefits.
Currently, the law bars the payment of benefits upon the remarriage
of the veteran's surviving spouse at any age, unless that remarriage is
subsequently terminated by divorce, annulment, or the death of the
second spouse. It eliminates the disparity that exists between the DIC
surviving spouses who lose their VA benefits if they remarry and other
Federal annuitant who continue to receive their survivor benefits if
they remarry after the age of 55. The American Legion is not opposed to
this change in the DIC program.
S. 938
Amends 38 U.S.C. Sec. 1313(b)(3) deleting the effective date of
September 30, 1999 for entitlement to dependency and indemnity
compensation (DIC) to those survivors of former prisoners-of-war who
were rated totally disabled for one year immediately preceding death.
The American Legion supported the enactment of P.L. 106-419, the
``Veterans' Millennium Benefits Act.'' which included a provision
expanding entitlement to DIC to former prisoner-of-war rated totally
disabled for a period of not less than one year immediately preceding
death. However, it only applied in those cases where the veteran's
death occurred after September 30, 1999. This legislation was felt to
be a step in the right direction in recognizing the long-term adverse
health effects of the prisoner-of-war experience. The American Legion
has continued to advocate the removal of this arbitrary date of death
restriction on the payment of this benefit and are pleased to support
S. 938.
S. 1132--THE VETERANS SURVIVORS BENEFITS ENHANCEMENT ACT
This legislation increases the monthly educational assistance rates
for veterans' survivors and dependents. Title 38 U.S.C. Sec. 3532(a),
rates will change from $670 for full-time to $985, from $503 for three-
quarter time to $740, and from $335 for half time to $492.
Section 3, reduces the length of Chapter 35 educational assistance
from 45 to 36 months for individuals who first files a claim under this
chapter after the date of the enactment of this provision. The American
Legion has no formal position on this proposal.
Section 4, increases the rate of DIC by $250 for a surviving spouse
with one or more children. This would be in addition to the DIC
dependency allowance payable. The increased rate would continue for the
five-year period following the veteran's death. The American Legion is
supportive of the proposed increases in educational assistance and DIC
benefits.
Section 5, authorizes the burial of a remarried surviving spouse in
a national cemetery. The American Legion has no formal position on this
proposal.
Section 6, authorizes spina-bifida benefits for those disabled
children of veterans who are presumed to have been exposed to Agent
Orange while serving in Korea. This provision extends the same benefits
and services as those disabled children of veterans who served in the
Republic of Vietnam. DoD recently released information identifying
units that were assigned to areas during the 1967-68 time frame that
may have been exposed to Agent Orange. It essentially updates current
statutes to reflect new information concerning the use of Agent Orange
in areas of the world outside of the Republic of Vietnam and The
American Legion believes this change is both appropriate and timely.
S. 792 AND S. 1136--SERVICE MEMBERS CIVIL RELIEF ACT
This legislation amends the Soldiers' and Sailors' Civil Relief Act
of 1940 to rename the Act the Service members' Civil Relief Act and
revises provisions with respect to certain civil protections and rights
afforded to service members while on active duty assignment.
Additionally, it provides certain protections of service members
against default judgments, including a minimum 90-day stay of
proceedings, with respect to the payment of any tax, fine, penalty,
insurance premium, or other civil obligation or liability.
While The American Legion does not have an official position on
this particular bill, The American Legion has long supported fair and
equitable provisions for Guard and Reserve service members as provided
in the Soldiers' and Sailors' Civil Relief Act.
S. 806--THE DEPLOYED SERVICE MEMBERS FINANCIAL SECURITY AND EDUCATION
ACT OF 2003
This legislation improves the benefits and protections provided for
regular and Reserve members of the Armed Forces deployed or mobilized
in the interests of the national security of the United States.
While The American Legion does not have an official position on
this particular bill, The American Legion has long supported fair and
equitable provisions for Guard and Reserve service members as provided
in the Soldiers' and Sailors' Civil Relief Act.
S. 978--THE VETERANS HOUSING FAIRNESS ACT OF 2003
This legislation authorizes the use of veterans' housing loan
benefits for the purchase of residential cooperative apartment units.
Expanding veterans housing benefits to include cooperative dwellings
allows veterans who may otherwise be restricted from obtaining
conventional hosing to realize the benefits of home ownership. The
American Legion fully supports this legislation.
S. 1124--THE VETERANS BURIAL BENEFITS IMPROVEMENTS ACT OF 2003
This legislation increases the Burial and Funeral Allowance for a
veteran eligible under 38 U.S.C. Sec. Sec. 2302(a) and 2303(a)(1)(A)
from $300 to $1135. Also under this section, the burial allowance for
veterans who die as result of a service-connected condition increases
$2000 to $3712. This legislation increases the burial plot allowance
for veterans eligible as described above from $300 to $600. The bill
also ties these allowances to the Consumer Price Index, requiring the
VA to adjust the allowance for inflation annually and eliminating the
need for legislative action to bring the allowances in line with the
original intent of Congress to pay 22 percent of the burial expenses of
a veteran.
Considering the average funeral service with casket now costs over
$5000, exclusive of grave marking and burial plot, these increases are
desperately needed by families of deceased veterans. The American
Legion finds these proposals reasonable and supports them fully.
S. 1199--THE VETERANS OUTREACH IMPROVEMENTS ACT
This legislation would provide specific authority and requirements
for VA's outreach activities to coordinate between its various
divisions of benefits and compensation, education and health care. In
addition, mandates the VA to identify within its discretionary budget
line amounts for such activities. This legislation also authorizes VA
to enter in cooperative agreements and arrangements in order to carry
out, coordinate, improve, or otherwise enhance both VA's and the States
outreach programs. Under such cooperative agreements, VA would be
authorized to make grants to State veteran agencies for the purpose of
outreach and providing direct assistance in claims for veterans' and
veterans-related benefits.
The American Legion is supportive of efforts to expand and improve
VA's outreach to veterans and other eligible beneficiaries. The
contracting out provision of this bill however, has the potential to
fundamentally change the nature of the relationship between the VA and
the State's veteran's agencies. The American Legion does not have a
formal position on authorizing the VA to contract with the States to
expand direct service and assistance.
S. 1282
The American Legion notes that the National Cemetery Administration
(NCA) was required by the Veterans Millennium Health Care Act of 1999
(Pub. L. 106-117) to review the burial needs of the veteran population,
in five year increments, through the year 2020 beginning in 2005. The
report of a study commissioned by VA in 2001, concluded that an
additional 31 national cemeteries will be required to meet the 2020
objective of serving 90 percent of veterans within a 75 mile radius of
any area in the country with a population density of approximately 10
veterans per square mile, or roughly 170,000 veterans within the burial
serve area.
This legislation authorizing the establishment of ten new national
cemeteries, together with the six new cemeteries already either
approved or under construction will go a long way toward fulfilling
this need. NCA has already determined, under the above criteria that
the ten current most underserved areas are in Sarasota, FL; Salem, OR;
Birmingham, AL; St. Louis, MO; San Antonio, TX; Chesapeake, VA; Sumter,
FL; Jacksonville, FL; Bakersfield CA; and Philadelphia, PA. New
Cemeteries are currently authorized or are under construction in
Atlanta, GA; Detroit, MI; Miami, FL; Sacramento, CA; Pittsburgh, PA;
and, Oklahoma City, OK. Fort Sill National Cemetery near Oklahoma City
opened on November 2, 2001. Some of these projects have commenced under
NCA's ``Fast Track'' cemetery construction program, in which within a
very short time after the beginning of the project, interments are
accepted by setting up minimum facilities while the major construction
goes forward. The interment of veterans in national cemeteries has
increased from 36,400 in 1973 to 84,800 in 2001. This rate is expected
to continue to rise to 115,000 in 2010. The average time to complete
construction of a national cemetery is seven years.
This legislation will allow NCA to keep pace with demand for burial
space if enacted and fully funded this year. The American Legion
asserts that Congress must provide sufficient major construction
appropriations to permit NCA to accomplish its mandate of ensuring that
burial in a national cemetery is a realistic option for 90 percent of
the nation's veterans. Construction funding must be continually
adjusted to reflect the true requirements of the NCA, as must
appropriations for operation, maintenance and renovation of existing
national cemeteries.
The American Legion fully supports this legislation requiring the
establishment of additional national and state veterans' cemeteries
wherever a need for them is apparent and petition Congress to provide
the required operations and construction funding to meet NCA's goals.
S. 1360
Currently, if a claimant is dissatisfied with a decision on their
VA claim, the appellate process is initiated by the filing of a Notice
of Disagreement (NOD). 38 U.S.C. Sec. 7105(b)(1) states, in part, that
``Such notice, and appeals, must be in writing and filed with the
activity (agency of original jurisdiction) which entered the
determination with which disagreement is expressed.'' P.L. 87-666 added
this provision in 1962. The regulation implementing this provision of
the law, 38 CFR 19.118, defined the term notice of disagreement as
``written communication expressing dissatisfaction or disagreement with
an adjudicative determination in terms that can be reasonably construed
as evidencing a desire for a review of that determination.'' There was
no additional or special wording required or specified.
However, in 1992, this regulation was revised and redesignated as
Sec. 20.201. It now required that, in order for a NOD to be valid, it
must not only be in writing, but it must also express a desire for
appellate review of the determination in question. However, despite the
restrictive language of the regulation, VA maintained its previous
liberal interpretation of what constituted a valid NOD. Few, if any
NOD's, were rejected as invalid due to a claimant's failure to include
a specific request for appellate review. The fact that a claimant filed
a NOD was generally taken at its face value as an expression of a
desire to appeal a particular determination.
In 2000, the United States Court of Appeals for Veterans Claims
(CAVC), in Gallegos v. Gober, 14 Vet. App. 50, 57-58 (2000) invalidated
38 C.F.R. Sec. 20.201. It held that the 1992 change added a
``technical, formal requirement for a NOD beyond the requirements set
by the statute.'' In 2001, VA appealed the CAVC's decision to the
United States Court of Appeals for the Federal Circuit (the Federal
Circuit). The Federal Circuit overturned the CVAC decision and held
that it was ``reasonable and permissible for VA to require that, in
order for a NOD to be valid, it must express a desire for appellate
review.''
In the opinion of The American Legion, the Federal Circuit's
interpretation of 38 U.S.C. Sec. 7105(b)(1) imposes an unnecessary
legal burden on veterans and other claimants who are trying to exercise
their appellate rights. This decision has the effect of making the VA
claims adjudication process increasingly formal, legalistic, and
adversarial, which is contrary to the informal, ex parte system that
Congress always intended something that The American Legion is strongly
opposed to. The draft bill proposes to nullify the Federal Circuit's
decision in Gallegos by amending 38 U.S.C. Sec. 7105(b)(1), to
specifically provide that ``for the purpose of an appeal to the Board
of Veterans Appeals,'' a valid notice of disagreement need only express
in writing the claimant's disagreement with the adjudicative
determination of the agency of original jurisdiction.
Mr. Chairman, The American Legion, once again thanks you for the
opportunity to presents its views on these various pieces of
legislation to enhance and improve the benefits of our nation's
veterans. The American Legion again reasserts its position that while
the legislation we have discussed today tries to fix the many
challenges facing the Veterans Administration and its mission to
provide compensation and benefits, they do not fix the overall problem
with VA.
Until adequate funding is provided to implement the various
programs affected by the proposed legislation, VA will continue to
struggle to provide benefits in a fair and timely manner. The Congress
must do all it can to ensure that proper financial support is available
for the VA to institute the many long awaited and needed changes being
discussed today.
I thank you again for your commitment to veterans and look forward
to working with you and the Committee on these important issues that
concludes our testimony.
__________
The Prepared Statement of Richard Jones,
National Legislative Director, AMVETS
Chairman Specter, Ranking Member Graham, and members of the
Committee: On behalf of National Commander W.G. ``Bill'' Kilgore and
the nationwide membership of AMVETS, thank you for the opportunity to
present testimony to the Veterans' Affairs Committee on pending
legislation regarding VA-provided benefits programs.
Mr. Chairman, AMVETS has been a leader since 1944 in helping to
preserve the freedoms secured by America's Armed Forces. Today, 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.
S. 257--THE VETERANS BENEFITS AND PENSIONS PROTECTIONS ACT OF 2003
Senator Nelson's legislation, S. 257, would expand the definition
of assignments of benefits. The aim of this bill is to end the practice
of some companies paying lump-sum cash payments in exchange for
collection of a veteran's future pension or disability benefits. The VA
Inspector General has termed these types of contracts a ``financial
scam.'' We believe these practices take unfair advantage of vulnerable
veterans receiving VA benefits. In one case, the Inspector General
reports that a veteran received a lump sum total of $73,000 in return
for his monthly benefit checks of $2,700 over 10 years, an annual
interest rate of 28.5 percent. AMVETS fully supports this bill to close
the loophole in law that prohibits the assignment of benefits.
S. 517--THE ``FRANCIS W. AGNES PRISONER OF WAR BENEFITS ACT OF 2003''
S. 517, introduced by Senator Murray, would amend current statute
that requires a 30-day minimum period of capture prior to the
designation of service connection for the purpose of payment of
veterans' disability compensation and healthcare treatment for certain
illnesses. It would also add to the list of diseases that are termed
presumptive for association to the experience of being a prisoner of
war. The list includes: heart disease, stroke, liver disease, diabetes
(type 2), and osteoporosis. In addition, it would grant to the
Secretary authority for making the determination of presumption for a
non-listed disease.
AMVETS supports this legislation for the following three reasons:
First, the swiftness of war and communications today makes the need
to eliminate the 30-days period to qualify for POW benefits
appropriate. The traumatic experience of meeting an enemy face-to-face,
not knowing what is going to happen next is sufficient stress even
though a long period of incarceration does not follow.
Second, research over time and in-depth study by the National
Academy of Science and others has established the need for the addition
of the five designated presumptives to cover these medical problems
resulting from the POW experience.
Third, granting authority to the Secretary regarding future
determinations is the same standard used for delivering presumptives
for Vietnam veterans. It is also the standard recommended by the VA POW
Advisory Committee. If the evidence for the association is equal to or
outweighs the evidence against the association between the occurrence
of a disease and the POW experience should be considered positive.
S. 1133--``VETERANS' COMPENSATION COST-OF-LIVING ADJUSTMENT ACT OF
2003''
S. 1133, introduced by Chairman Specter, would provide a cost-of-
living adjustment for veterans' benefits programs and help protect the
veterans' benefit against the erosion effects of inflation. The
principle programs affected by the adjustment would be compensation
paid to disabled veterans, dependency and indemnity compensation
payments made to surviving spouses, minor children and to other
dependents of service members who died in service or who died as a
result of service-connected injuries or disabilities. AMVETS supports
the adjustment and would encourage Congress to take one more step
making the payment adjustment to totally disabled veterans more
generous than the consumer-price-index as measured by the Department of
Labor. It is time we recognize that the compensation to totally
disabled is too low and there are a number of ways to make the
adjustment within the current budget.
S. 1133--THE ``VETERANS PROGRAMS IMPROVEMENT ACT OF 2003''
S. 1133, introduced by Chairman Specter (by request), would address
several benefit programs relating to compensation, DIC, education and
memorial benefits. First, the bill would allow the cost-of-living
increase in the rates of disability compensation benefits to be
determined administratively. AMVETS appreciates the concern about
protecting the affected benefits, however we remain confident in the
current method of COLA adjustment accomplished by Congress in annual
statute. Second, the bill would eliminate the 45-day rule regarding the
filing of a death pension claim. Currently, claimants who receive
insurance proceeds within 45-days of death and file for pension claims
within 45-days of death can have their insurance proceeds counted as
income for pension purposes. However, those who wait 45 days or longer
to file pension claims do not. AMVETS supports this change. Surviving
spouses who deserve help from VA should not have life insurance
proceeds counted against them as income for purposes of being barred
from the pension program. Third, the bill would prohibit payment of
compensation for alcohol or drug-related disability. AMVETS agrees with
this section of the bill. We do not support payment of compensation for
a disability that is a result of the veteran's own alcohol or drug
abuse.
AMVETS supports provisions in this bill affecting burial benefits.
We support the expansion of the burial plot allowance to allow payment
of a plot allowance to States for each veteran interred in a State
veterans' cemetery. Current law disallows such payment to the State, if
the family seeks reimbursement of expenses for a veteran entitled to
related service-connected burial benefits. We also support provision in
this bill to allow VA to provide a marker for the private-cemetery
grave of a veteran who died between November 1, 1990, and September 11,
2001. This provision closes a gap in VA benefits by extending the honor
of this authority to the burial site of all veterans. In addition, we
support expansion of burial eligibility for remarried spouses, as it
reflects the importance of the first marriage to the veteran's family.
Also, we support making permanent the authority of VA to make grants to
States to assist them in establishing, expanding, or improving State
veterans' cemeteries. The VA State Cemetery Grants Program has proven
itself as an important complement to the national cemetery program and
making it permanent would assist planning in this benefit program.
AMVETS also supports provisions in this bill that enhance and
expand veterans' education programs. In particular we cite our support
for legislation to extend educational benefits for individuals who have
been called to full-time National Guard duty. The provision in this
bill would extend the amount of time equal to that period of full-time
duty plus 4 months to allow those who are qualified for chapter 35
benefits time to reestablish their curriculum.
S. 1188--THE ``VETERANS' SURVIVOR BENEFITS ACT OF 2003''
S. 1188, introduced by Senator Murray, would repeal the two-year
limitation on the payment of accrued benefits that are due to an
unresolved benefits claim at the time of a veteran's death. AMVETS and
the members of The Independent Budget have recommended such a change
for a number of years. With the time period for processing claims and
appeals often being a matter of years, the two-year limitation is
inequitable. Long delays should not be a factor in our nation's
compensation paid to the surviving spouse or child of a disabled
veteran.
S. 1213--THE ``FILIPINO VETERANS' BENEFITS ACT OF 2003''
Mr. Chairman, AMVETS is certainly mindful of the brave and historic
contributions made by Filipino nationals during World War II. Their
actions as part of the allied effort are legendary. Measured in these
terms, we believe Filipino veterans of World War II certainly deserve
our grateful appreciation for their heroic contributions they made
during the war effort, regardless of where they may reside. And, in a
fiscally unconstrained environment, AMVETS would most assuredly support
allowing these individuals access to appropriate veterans benefits.
However, despite the efforts of the chairman and this committee, VA
funding has been chronically deficient for far too long. With this in
mind, AMVETS must offer its opposition to S. 1213, the Filipino
Veterans' Benefits Act of 2003, introduced by the chairman at the
request of Secretary Principi. By the secretary's own figures, this
bill would cost VA an additional $16.2 million for fiscal year 2004 and
total in excess of $130 million over the next decade. These are
expenditures VA can little afford to make.
AMVETS certainly values the contributions and sacrifices made by
our Filipino comrades in arms during World War II, yet we believe the
interests of American veterans must continue to come first. We would
certainly prefer a fiscal climate where both the interests of similarly
situated Filipino beneficiaries and American veterans could be
satisfactorily accommodated. However, it is difficult to see a positive
effect on our veterans by extending benefits to Filipino veterans, at
this time.
S. 1239--THE ``FORMER PRISONER OF WAR SPECIAL COMPENSATION ACT OF
2003''
S. 1239, introduced by Senator Craig, would create a new
compensation system establishing a three-tiered special monthly pension
for former prisoners of war. POW's detained 30 to 120 days would
receive $150 a month, those detained 121 to 540 days would receive $300
a month, and those detained form 541 or more days would receive $450 a
month. Payment would be made without regard to any other compensation
under federal law. Current law requires a period of internment of not
less than 90 days to qualify. AMVETS supports this bill.
S. 1281--THE ``VETERANS INFORMATION AND BENEFITS ENHANCEMENT ACT OF
2003''
S. 1281, introduced by Ranking Member Graham, would augment
research in specific exposures to radiation and toxins such as Agent
Orange and the risk of later disease. AMVETS supports the provisions
contained in this legislation as a means to continue efforts to find
remedies and better understand the agents used on the battlefield.
S. 249--A BILL TO PROVIDE THAT REMARRIAGE OF THE SURVIVING SPOUSE OF A
DECEASED VETERAN AFTER AGE 55 SHALL NOT RESULT IN TERMINATION OF
DEPENDENCY AND INDEMNITY COMPENSATION
S. 249, introduced by Senator Clinton, would allow the spouse of
veterans who remarry after the age of 55 to continue to receive DIC
payments. The current program that disqualifies spouses who remarry is
the only federal annuity program that does not permit a recipient of
dependency compensation to continue benefits after age 55. AMVETS
supports this bill to retain benefits eligibility.
S. 938--A BILL TO PROVIDE FOR THE PAYMENT OF DIC TO THE SURVIVORS OF
FORMER PRISONERS OF WAR WHO DIED ON OR BEFORE SEPTEMBER 30, 1999
S. 938, introduced by Senator Murray, is similar to H.R. 886,
introduced in the House by Pennsylvanian Representative Tim Holden. It
would update and correct inequities in disability and indemnity
compensation (DIC) for all survivors of Prisoners of War (POW's) rated
totally disabled at time of death.
Current law provides DIC benefits only to surviving spouses of
eligible POW's who died after September 30, 1999. Before 1999,
surviving spouses of POW's were eligible for DIC benefits providing the
POW was rated 100 percent disabled for a minimum of 10 years prior to
the POW's passing. Due to unresolved eligibility issues, many POW's
passed away prior to being considered 100 percent disabled for ten
years. This problem was addressed by enactment of the Veteran's
Millennium Healthcare Act of 1999, which allowed surviving spouses to
qualify for DIC benefits if their POW spouse was rated 100 percent
disabled for at least one year and died after September 30, 1999.
However, establishment of this date left many widows with
unresolved cases penalized due to this cutoff. This legislation would
treat all surviving spouses of POW's equally and grant them DIC
benefits regardless of when their POW spouse passed away. We believe
these changes honor all those who have been held captive in service to
our nation. AMVETS also wishes to recognize the support of AMVETS
Department of Pennsylvania for this legislation.
S. 1132--THE ``VETERANS SURVIVORS BENEFITS ENHANCEMENTS ACT OF 2003''
S. 1132, introduced by Chairman Specter, would enhance several
benefits programs for spouses and children of those killed or injured
in military service to our nation. First, it would increase the
Survivors' and Dependents Education Assistance benefit available to
eligible spouses and children to equal the benefit provided veterans.
Second, the bill would increase the DIC benefit over a five-year
period. It recognizes that the DIC basic rate of $948 monthly for a
total of 36 months does not adequately meet the needs of surviving
spouses with dependent children. Third, the bill extends VA authority
to allow remarried spouses the right to burial with their previous
spouse, already buried in a national cemetery. Fourth, the bill would
provide benefits to spina-bifida children of veterans who served in or
near the Korean DMZ between 1967 and 1969. This provision is crafted
under the same rational as the benefit extended to children of Vietnam
veterans. AMVETS supports the compassionate provision of benefits
contained in this legislation.
S. 792--THE ``SERVICE MEMBERS CIVIL RELIEF ACT''
S. 792, introduced by Senator Miller, would amend and update the
Soldiers' and Sailors' Civil Relief Act of 1940. The bill is similar to
HR 100, legislation approved on May 7 in the House of Representatives,
and S. 1136, legislation introduced in the Senate by Chairman Specter.
The bill would clarify and strengthen the rights and protections
provided to persons in military service. Under current statute coverage
includes service members' financial obligations and liabilities, such
as rent, mortgages, installment contracts and leases; civil (but not
criminal) legal proceedings; life insurance; taxes; and rights in
public lands.
Congress enacted the Soldiers' and Sailors' Civil Relief Act in
1940 to protect individuals called to active duty. It is intended in
large part to promote the national defense by suspending enforcement of
civil liabilities of service members to enable them to devote their
entire energies to freedom's defense. For example, the act provides for
forbearance and reduced interest on certain obligations incurred prior
to service and restricts default judgments against service members and
rental evictions of service members and their dependents.
Mr. Chairman, as the scope and role of our National Guard personnel
has changed, so must the laws that govern their service. AMVETS
supports these changes. They are needed as recognition of the changing
responsibilities of the modern world.
S. 806--THE ``DEPLOYED SERVICE MEMBERS FINANCIAL SECURITY AND EDUCATION
ACT OF 2003''
S. 806, introduced by Ben Nelson, would provide financial
assistance to reserve and active troops deployed for prolonged tours of
duty. Since the end of the Cold War, and especially since the terrorist
attacks of September 11, National Guardsmen and Reserves have seen an
upward spiral in the rate of deployment and mobilizations. Often these
deployments last for long periods keeping these military personnel away
from their jobs and their normal lives sometimes up to 2-years.
This bill would lessen the financial burdens potentially carried by
those called from their employment to active duty. It would amend the
Soldiers' and Sailors' Civil Relief Act to protect the educational
status and tuition payments and limit the interest rate on student
loans of service for our citizen soldiers. It would allow members of
reserve components to withdraw from new 401(k) accounts to supplement
military income when mobilized or completing a military career. In
whole, this bill helps recognize the stress on our brave volunteers and
see that help is available as they fulfill their national defense and
homeland security mission.
S. 1136--THE ``SERVICE MEMBERS' CIVIL RELIEF ACT''
S. 1136, introduced by Chairman Specter, would update and upgrade
the Soldiers' and Sailors' Civil Relief Act of 1940. The bill is
similar to legislation approved on May 7 in the House of
Representatives and S. 792, companion legislation introduced in the
Senate in April by Senator Zell Miller.
S. 1136 retains the core protections in place for over 6 decades
such as providing a stay in civil proceedings, capping interest rates
on individual debts at 6 percent, and protecting from evictions in
rental agreements and residential leases. However, it takes an
additional step to upgrade the rent ceiling on evictions from the
current level of $1,200 per month to $1,950 per month or the amount of
a service member's basic allowance for houses whichever is higher.
Since the basic allowance is annually adjusted, this change would avoid
erosion of the benefit over time. The legislation also would include
leased automobiles in the relief protections. It would allow service
members to terminate automobile leases just they can for real property
leases. Moreover, the bill would provide protections for small business
owners during military service. Reservists and guardsmen deserve
protection that postpones or suspends certain civil obligations with
which military service could interfere. AMVETS gives its full support
for swift consideration and passage of this measure.
S. 1124--THE ``VETERANS BURIAL BENEFITS IMPROVEMENT ACT OF 2003''
S. 1124, introduced by Senator Mikulski, would amend the burial
benefits provided families of our brave and dedicated veterans. It is
important to note that Congress, with minor, yet significant exception,
has not increased veterans' burial benefits for several decades. A
PricewaterhouseCoopers study, submitted to VA in December 2000,
indicates serious erosion in the value of burial allowance benefits.
While these benefits were never intended to cover the full costs of
burial, they now pay for only a fraction of what they covered in 1973,
when the Federal Government first started paying burial benefits for
our veterans.
While some adjustments were made in the 107th Congress to adjust
the plot allowance from $150 to $300 and the service-connected benefit
from $1,500 to $2,000, it's important to note that these increases
remain significantly lower, as a percentage of original expense, than
originally provided. For instance, in 1973 the plot allowance benefit
covered approximately 13 percent of a veterans' funeral. Today it
covers only 6 percent. Increasing the plot allowance from $300 to $670
would restore the benefit to an amount proportionally equal to the
benefit paid in 1973. Similarly the bill would raise the service-
connected benefit and the non-service-connected benefit to percentage
levels appropriate to a more meaningful contribution to the costs of
burial for our veterans. Finally this bill would adjust burial benefits
for inflation annually to avoid the erosion of this important benefit
to the families of veterans.
S. 1199--THE ``VETERANS OUTREACH IMPROVEMENT ACT OF 2003''
S. 1199, introduced by Senator Feingold, would establish a new
grant program to fund State-run outreach programs conducted by State
Departments of Veterans Affairs. AMVETS firmly believes that outreach
programs provide important information to veterans about their earned
benefits. Moreover the current program funded in the State of Wisconsin
is well operated. However, we do not believe a separate funding line
should be created. It is already well known that overall funding is
inadequate: Over 167,000 veterans are currently denied enrollment in
the VA health care system due to shortfalls in funding and more than
136,000 waiting six months or more for their first appointment to see a
VA doctor; VA benefits are running delays measured in months and in too
many cases years; Burial benefits are under funded with maintenance of
national cemeteries reported to be nearly $920 million in arrears.
Though AMVETS is committed to improving the lives of our Nation's
veterans, we do not believe the time is ripe for establishment of an
outreach program that is more the responsibility of VA than the State
Departments.
S. 1282--A BILL TO REQUIRE THE SECRETARY OF VA TO ESTABLISH NATIONAL
cemeteries for geographically-underserved populations of veterans
S. 1282, introduced by Ranking Member Bob Graham, would direct the
VA secretary to ensure burial access to veterans located within a
reasonable distance of their homes. It would authorize the construction
of ten new cemeteries in the ten top areas of veterans population
identified to be in greatest need. These sites would include: Sarasota,
Fla.; Salem, Ore.; Birmingham, Ala; St. Louis, Mo.; San Antonio, Tex.;
Chesapeake, Va.; Sumter, Fla.; Bakersfield, Cal.; Jacksonville, Fla.;
and Philadelphia, Penn. AMVETS supports the construction of new
cemeteries to ensure that burial needs of veterans and their family
members will be met in the future.
S. 1360--A BILL TO AMEND SECTION 7105 OF TITLE 38, UNITED STATES CODE,
TO CLARIFY THE REQUIREMENTS FOR NOTICES OF DISAGREEMENT FOR APPELLATE
REVIEW OF DEPARTMENT OF VETERANS AFFAIRS ACTIVITIES
S. 1360, introduced by Ranking Member Bob Graham, would clarify the
level of formality necessary for a veteran to file notice of
disagreement regarding a VA denial of claim for benefits. The bill
specifies that a claimant's filing is appropriate as long as it
complies with section 7105 of title 38, which simply requires that a
notice of disagreement must be filed in writing within 1-year from the
initial denial with the regional office that issued the decision in
disagreement. Regulations issued by VA require, extra statutorily, that
the notice also state in writing ``a desire for appellate review.'' VA
regulations were upheld in the United States Court of Appeals for the
Federal Circuit on appeal in Gallegos v. Gober (later Principi). AMVETS
supports this legislation. Filing of a notice of disagreement should be
no more convoluted than prescribed by law. Moreover, NOD's previously
set aside by use of VA's expanded regulation should be restored.
This concludes our testimony. Again, thank you for the opportunity
to testify on this important legislation, and thank you, as well, for
your continued support of America's veterans.
__________
The Prepared Statement of Rick Surratt, Deputy National Legislative
Director, Disabled American Veterans
Mr. Chairman and Members of the Committee: The agenda today
includes a number of bills of importance to the more than 1,252,000
members of the Disabled American Veterans (DAV). As always, we
appreciate this Committee's efforts to improve benefits and services
for disabled veterans, and we are grateful for the opportunity to
provide our views on legislation affecting our members. With a few
exceptions, the provisions of these bills are beneficial and justified.
bills relating to veterans' disability compensation benefits--s. 257
The Veterans' Benefits and Pensions Protection Act of 2003, S. 257,
would clarify that the prohibition on assignment of veterans' benefits
includes any agreement between a beneficiary and a third party under
which the third party acquires for consideration the right to receive
any compensation, pension, or dependency and indemnity compensation
(DIC) of the beneficiary. The bill provides criminal penalties for
violations, and directs the Secretary of Veterans Affairs to conduct an
outreach program to inform veterans and other potential recipients of
compensation, pension, or DIC of the prohibition against the assignment
of those benefits, including information on various schemes to evade
the prohibition and means of avoiding such schemes.
After its May 2, 2002, hearing on several bills that included last
year's version of S. 257, that is, S. 2003, this Committee merged S.
2003 into S. 2237 and favorably reported it for a vote by the Senate.
The Senate passed S. 2237 with these provisions included as section
105. Unfortunately, section 105 was removed in conference, and the
provisions were thus not included in the bill enacted as Public Law
107-330.
The DAV testified in support of S. 2003 last year, and the DAV
fully supports S. 257. The disability benefits Congress provides to
veterans and their dependents are intended to relieve the effects of
impairments and other economic disadvantages. To safeguard these
benefits against loss and to ensure they are not diverted to or
siphoned off by third parties, Congress enacted legislation making
veterans' benefits non-assignable. Certain commercial companies
nonetheless entice veterans to assign their future compensation
payments to the companies in exchange for smaller amounts advanced as
lump sums. This practice defeats the public policy principles
underlying the non-assignability provisions of section 5301 of title
38, United States Code, because a portion of government payments become
profits benefiting commercial concerns.
Under some of these ``factoring'' arrangements, the lump sum paid
to the veteran is only a fraction of the total amount that must be
repaid over the term for repayment and far exceeds the amount of total
payments of principal and reasonable interest that would be due in a
legitimate loan. Such factoring agreements may in effect violate usury
laws.
The Department of Veterans Affairs (VA) Inspector General made an
inquiry into this practice in 2001. He observed that these ``schemes
seem to target the most financially desperate veterans who are the most
vulnerable.'' He noted, ``for many unsuspecting veterans, these benefit
buyouts could be financially devastating.'' Surprisingly, VA cavalierly
testified against this legislation in last year's hearing, stating a
belief that veterans should be free to dispose of their benefits as
they wish. Such a position by VA is irresponsible and should be
disregarded by this Committee, as it was last year. The DAV urges the
Committee to favorably report S. 257.
S. 517
The Francis W. Agnes Prisoner of War Benefits Act of 2003 would
amend certain statutory requirements for presuming service connection
of disabilities in the case of former prisoners of war (POW's) and for
providing VA dental care to former POW's. It would repeal the current
30-day minimum period of internment that is a prerequisite for the
presumption of service connection for recognized POW-related diseases.
It would repeal the current 90-day minimum period of internment that is
a prerequisite for eligibility for VA dental care. It would add to the
list of diseases subject to the statutory presumption of service
connection heart disease, stroke, liver disease, type 2 diabetes, and
osteoporosis and would provide for the presumption of service
connection of other diseases through administrative rules promulgated
by the Secretary of Veterans Affairs when the Secretary determines
there is a positive association between the experience of being a
prisoner of war and such diseases. The short title of this bill honors
a well-known former POW and a survivor of the Bataan Death March.
This bill is consistent with DAV's resolution calling for expansion
of the list of disabilities subject to presumptive service connection
for former POW's. The DAV supports S. 517.
S. 1131
The Veterans Compensation Cost-of-Living Adjustment Act of 2003, S.
1131, provides for adjustment of disability compensation, DIC, and
clothing allowance rates for the annual increase in the cost of living
as will be determined by the Consumer Price Index. To avoid a decrease
in purchasing power, these benefits for service-connected disabled
veterans and their survivors must be adjusted annually, commensurate
with increases in the cost of living. The DAV supports S. 1131.
S. 1133
In addition to a cost-of-living adjustment for compensation, DIC,
and the clothing allowance, this bill, which was introduced by request,
includes a variety of other provisions, apparently sought by VA.
Although its short title is the ``Veterans Programs Improvement Act of
2003,'' some of the bill's provisions do not improve veterans'
programs. Other provisions are beneficial.
Section 3 of S. 1133 would repeal the rule that requires an
application for death pension to be received by VA within 45 days of a
veteran's death for the effective date for an award of death pension to
be retroactive to the first day of month of the veteran's death. This
change would restore the prior rule under which the effective date
would be the first day of the month of the veteran's death provided the
application was received within 1 year from the date of death. The DAV
has no mandate from its membership on this provision, but we note it
would have a beneficial effect for claimants and would be more
practical for VA to administer as well.
Section 4 adds lump-sum life insurance proceeds to the list of
items that are excluded from income calculations for purposes of
entitlement to death pension. Again, the DAV has no resolution on this
specific issue, but we note this provision would be beneficial for
veterans' survivors who have very limited incomes.
Consistent with a legislative proposal in the fiscal year (FY) 2004
budget for VA, section 5 of the bill would amend the law to prohibit
compensation for disability from alcohol or drug abuse that was caused
by a service-connected disability. For the reasons stated below in our
discussion of the same provision in S. 1239, the DAV strongly opposes
this provision.
Section 6 would authorize the payment of the proceeds of a National
Service Life Insurance (NSLI) or United States Government Life
Insurance (USGLI) policy to a contingent beneficiary when the primary
beneficiary does not claim the proceeds within 2 years of the insured's
death. After the passage of the 2-year period, the primary beneficiary
would be treated as if he or she had predeceased the insured.
Further, if within four years after the death of the insured, no
claim has been filed by a designated beneficiary, payment of the
insurance proceeds may be made to such person as may, in the judgment
of the Secretary, be equitably entitled to such proceeds.
Annually, VA sends statements to policyholders regarding the status
of their policies. Recently, VA requested that policyholders resubmit
beneficiary designations to enable VA to electronically file the
designations in its new imaging system. These forms also requested
beneficiaries' social security numbers. As part of VA's annual mailing
to policyholders, it should continue to request updated beneficiary
information to ensure its records are current and allow it to carry out
veterans' wishes as to recipients of life insurance policy proceeds.
It is unclear what action VA currently takes to ensure a deceased
veteran's beneficiary is located and receives notice that life
insurance proceeds are available. Further, a 2-year window of
opportunity for a primary beneficiary to file a claim appears to be a
very short period of time, especially in light of the fact that after
that 2-year period, the primary beneficiary is treated as if he or she
had predeceased the insured and, therefore, is precluded from receiving
the life insurance proceeds. Likewise, a secondary beneficiary would
have only 2 years in which to file a claim after the primary
beneficiary's 2-year period has elapsed.
We are unaware of any private insurance company that has similar
restrictions. Accordingly, the DAV is opposed to the provisions
contained in Section 6 of this bill.
Section 7 of the bill would amend section 5102 of title 38, United
States Code, to impose a 1-year time limit upon a claimant's submission
of information necessary to complete an application for benefits, other
than Government life insurance benefits. We have no objection to this
amendment. It would also amend section 5103 of title 38, United States
Code, by removing the 1-year time limitation for the submission of
information or evidence necessary to perfect a claim for benefits. We
do not understand why VA would want to remove this time limit unless it
desires, by the absence of any statutory time limit, the discretion to
impose its own requirement of less than 1 year. We believe existing
section 5103(b) should be retained, and we suggest that the time limit
include a ``good cause'' exception. Such exception is now included in
VA's regulation, section 3.109(b), title 38, Code of Federal
Regulations. Section 3.109(a) (2) specifies the types of claims to
which the time limit applies and makes an exception for evidence that a
claimant might submit to support the credibility of a witness or to
authenticate documentary evidence timely filed. When a disposition has
become final under section 3.158 or sections 3.160(d), 20.1103, 20.1104
of title 38, Code of Federal Regulations, ``evidence to enlarge the
proofs and evidence originally submitted'' are not admissible in that
claim. Section 3.109 implemented the provisions of section 5103 in
effect before the amendments made by the Veterans Claims Assistance Act
of 2000, Pub. L. No. 106-475 (VCAA). VCAA made only minor, non-
substantive changes in the language of the 1-year time limit.
In addition, any time limitation on the submission of evidence
should expressly indicate it is subject to other provisions that
suspend the finality of VA decisions. For example, under section 7105
of title 38, United States Code, an appeal initiated with a notice of
disagreement suspends the finality of a VA decision. Thus, under VA
regulations, evidence submitted before a decision becomes final by
expiration of the 1-year appeal period or submitted during the pendency
of an appeal has the same effect as if it were submitted with the
application for benefits. See 38 C.F.R. Sec. Sec. 3.156(b),
3.400(q)(i), 20.1304(b)(i) (2002). Thus, the 1-year rule does not
operate when finality is suspended and a claim continues to be open and
pending.
Section 8 would expand eligibility for the burial plot allowance to
make it consistent with eligibility for burial in a national cemetery
and provide for a plot allowance to a state for burial in a state
cemetery when a service-connected burial allowance is paid to a
veteran's survivor. The change in eligibility for the plot allowance is
a recommendation of The Independent Budget, of which DAV is one of the
coauthors in the partnership of four veterans' organizations. The DAV
supports section 8 of this bill.
Section 9 would establish an earlier effective date for provisions
authorizing government-furnished markers for privately marked veterans'
graves. The DAV has no mandate from its membership on this issue, but
the legislation is liberalizing, and we have no opposition.
Section 10 would expand eligibility for interment in national
cemeteries to veterans' spouses who survived the veteran and who were
remarried at the time of their death. The DAV has no position on this
section.
Section 11 would remove the FY 2004 sunset from the state cemetery
grant program. The DAV has no mandate from its membership on this
issue, but the state cemetery grant program should continue as long as
there is a need for state veterans' cemeteries to augment the limited
availability of burial space in national veterans' cemeteries.
Section 12 would add more offenses to the list of subversive
activities that will result in forfeiture of entitlement to veterans'
benefits. Added to the list would be (1) crimes involving development,
possession, use, etc., of biological weapons, chemical weapons, or
nuclear materials; (2) genocide; (3) use of weapons of mass
destruction; and (4) terrorist acts. The DAV opposes the addition of
crimes involving biological, chemical, or nuclear materials, without
qualification beyond their respective broad statutory definitions, in
sections 175, 229, and 831 of title 18, United States Code. These
statutes include use of the prohibited materials in crimes against
individuals--for example, poisoning or attempted poisoning of a
person--which are not necessarily within the class of subversive
activities, and are thus not of a magnitude to warrant forfeiture of
all veterans' entitlements. Currently, the commission of a capital
crime disqualifies a veteran for certain burial benefits but does not
cause forfeiture of other entitlements. According to Black's Law
Dictionary, 7th edition, a ``subversive activity'' is one in which
there is a ``pattern of acts designed to overthrow a government by
force or other illegal means.'' Therefore, section 6105 of title 38,
United States Code, in incorporating a list of offenses that will
result in forfeiture, should only do so with language that limits the
applicability of these crimes to circumstances in which they were
committed for subversive ends. Under other circumstances of crimes
against the person, the veteran should not suffer a forfeiture of
veterans' rights because that would constitute a dual penalty for a
crime: the government would impose the first penalty for commission of
the crime and the second penalty because the perpetrator was
incidentally a veteran.
Section 13 of S. 1133 would amend requirements for appointments to
the Veterans' Advisory Committee on Education. Current provisions
require the VA Secretary to appoint veterans ``representative of World
War II, the Korean conflict era, the post-Korean conflict era, the
Vietnam era, the post-Vietnam era, and the Persian Gulf War.'' Section
13 would require such appointments to the extent practicable and would
make a technical amendment to a cross-reference in section 3692 of
title 38, United States Code. The DAV has no position on this section
13.
Section 14 would repeal the education loan program. The DAV has no
position on this issue.
Section 15 would amend provisions for extension of the period for
using educational benefits under chapter 35 of title 38, United States
Code. Under current law, the period of eligibility, the ``delimiting
period,'' may be extended for the length of time an eligible person
serves on active duty during their delimiting period. Section 15 would
add compulsory full-time National Guard duty to types of military
service that will warrant an extension. The DAV has no specific mandate
from its membership on this issue, but this would be a beneficial
change for persons eligible for educational assistance under chapter
35, and we therefore support it.
Section 16 would authorize payment of education benefits under the
Montgomery GI Bill for veterans pursuing self-employment training as
specified by the section. The DAV has no position on this issue.
S. 1188
The Veterans' Survivors Benefits Act of 2003, S. 1188, would repeal
provisions that impose a 2-year limitation on retroactive benefits
payable to an eligible survivor by reason of death of the entitled
beneficiary before adjudication can be finalized or payment can be
disbursed. Section 5121 of title 38, United States Code, authorizes VA
to pay to immediate surviving family members the benefits due a veteran
or due an eligible dependent at the time of death, but the statute
restricts payment to those benefits ``due and unpaid for a period not
to exceed two years.''
Other than an arbitrary limitation, there is no rational basis to
pay benefits for a fixed period that is less than the period for which
benefits are actually and rightfully due. No circumstances or factors
inherent in the merits of the matter warrant nullification of all a
veteran's entitlement to benefits except for the 2 years immediately
preceding death simply because, by the chance of time and perhaps
administrative variations, a veteran's death occurs before VA can issue
payment of all benefits owed.
Workload variations and differentials in efficiency between VA
field offices can result in different outcomes and unequal treatment of
identically situated survivors. The widow of one veteran might get the
benefit of a full retroactive award because the VA regional office
decided the veteran's claim and made full payment of all amounts due to
the veteran just a day or so before the veteran's demise, while the
unfortunate widow of another veteran may get the benefit of only a 2-
year retroactive award because her regional office took enough extra
days to dispose of the claim that the veteran's death occurred before
VA could pay him the benefits he was due. Although the same as the
first widow in all respects, the second widow's accrued benefits would
be subject to the 2-year limitation solely because of administrative
variations.
With the persistence of high error rates in VA's adjudication of
claims, correct decisions only follow from appeals that take years, in
many instances. With an aging veteran population and protracted claims
and appeals processing times, seriously ill and aged veterans may die
before VA can properly finalize their claims. Because effective dates
for beginning benefit entitlement are tied to the dates veterans file
their claims, retroactive awards spanning more than 2 years almost
always occur because of some administrative error or delay beyond the
veteran's control.
Compensation and other benefits provide economic assistance for
loss of earning power or other reasons. To the extent the veteran was
deprived of the income from benefits due, his or her immediate family
members are also deprived of the value of that income. A surviving
spouse or child, who shared and suffered the effects of economic
deprivation for an extended period while the claim was pending, should
not be barred from receipt of a substantial portion of the relief the
veteran would have received but for his or her death merely because the
veteran did not live long enough to see his or her claim properly
resolved by VA.
To remedy this injustice, section 2 of S. 1188 strikes from section
5121 the limiting phrase ``for a period not to exceed two years,''
thereby authorizing payment of all accrued benefits to eligible family
members. This legislation addresses DAV Resolution No. 22 that calls
for repeal of the limitation on payment of accrued benefits and a
recommendation by The Independent Budget that Congress remove this
unfair restriction.
To remedy the lack of any survivor designated to receive a deceased
child's benefits accrued under chapter 18 of title 38, United States
Code, section 2 of the bill designates the child's surviving parents as
eligible recipients.
For cases in which benefits are not payable based on existing
ratings or decisions, or not payable based on the evidence on file at
the date of death, sections 3 and 4 of S. 1188 would authorize those
survivors who would have been eligible to receive accrued benefits, had
accrued benefits been payable, to continue to prosecute claims and
appeals for the purpose of establishing, after the claimant's death,
entitlement to the benefits sought by the deceased claimant. However,
these substituted parties, may only prosecute claims or appeals for
compensation, DIC, or pension, and therefore could not prosecute claims
or appeals for the broader range of periodic monetary benefits subject
to the accrued benefits provisions of section 5121.
The purpose of this section is for practicality and administrative
economy, and to remove inequities in current law. For example, if a
veteran died while his case was before the Board of Veterans' Appeals
or the United States Court of Appeals for Veterans' Claims, a
substituted party could continue to prosecute the pending appeal
without the necessity of beginning an entirely new claim as a claimant
for accrued benefits with the knowledge that VA is unlikely to award
the survivor accrued benefits based on the same evidence on which it
denied the veteran's claim and with the expectation that another appeal
from the denial of accrued benefits would inevitably be required. It
also removes the inequity that results from circumstances in which one
survivor would receive accrued benefits because the veteran had been
able to submit sufficient evidence to prove his entitlement before
death and a similarly situated and equally entitled survivor would be
denied benefits because the veteran had been unable to submit full
proof of entitlement before his or her death occurred. Current law does
not permit a survivor to submit evidence necessary to prove a
claimant's entitlement after the claimant's death. Under the provisions
of this bill, survivors, as substituted parties, would in effect have
all the rights the claimant had while living to submit evidence or
appeal in an effort to establish entitlement.
The provisions of S. 1188 address one of the DAV's legislative
priorities and remedy serious inequities in current law. We urge the
Committee to make this bill one of its legislative priorities this
year.
S. 1213
Section 3 of S. 1213, the Filipino Veterans' Benefits Act of 2003,
would authorize payment of the full-dollar rate of compensation for
service-connected disability suffered by a person who served in the
Philippine Scouts under authority of section 14 of Public Law 79-190
(known as ``new'' Philippine Scouts) who resides in the United States
as an American citizen or permanent resident and would pay the full-
dollar amount of DIC to an eligible survivor of a Commonwealth Army
veteran or new Philippine Scout if the survivor resides in the United
States as an American Citizen or permanent resident. Section 5 would
extend full-dollar burial benefit entitlement and national cemetery
eligibility to a new Philippine Scout residing in the United States as
an American citizen or permanent resident. Section 4 would extend VA's
authority to operate a regional office in the Philippines to 2008. The
DAV recognizes the contributions of these Filipino veterans during
World War II, and we support S. 1213.
S. 1239
As the short title of S. 1239 indicates, the Former Prisoners of
War Special Compensation Act of 2003 would establish a special
compensation benefit for former POW's. For service members and veterans
who were held as prisoners of war for at least 30 days, monthly
benefits would be paid at three different rates, based upon the length
of time an individual was in POW status. Those held 30 to 120 days
would receive $150 monthly; those held 121 to 540 days would receive
$300; and those held more than 540 days would receive $450. This
special compensation would not be considered income or resources for
purposes of determining eligibility to any other Federal or federally
funded program and would not be subject to attachment, execution, levy,
tax lien, or detention under any process whatever.
In addition to special compensation for POW's, the bill would
remove the requirement that a POW must have been a prisoner of war for
not less than 90-days to be eligible for VA dental care. This provision
addresses a legislative proposal in the VA budget for FY 2004.
Also in response to a legislative proposal in the VA budget, the
bill would amend the law to prohibit compensation for disability from
alcohol or drug abuse that was caused by a service-connected
disability. Currently, the law bars compensation for disability that is
the result of abuse of alcohol or drugs, except when alcohol or drug
abuse is secondary to a service-connected disability. Unlike the other
provisions of the bill, which are beneficial to POW's, this provision
in H.R. 850 is not specifically related to POW benefits, although it
will adversely affect some disabled POW's, as it does other disabled
veterans.
Veterans in no other group as a whole have borne a greater burden
on behalf of our Nation and deserve more in return than our former
POW's. Many suffered unimaginable horrors from torture, humiliation,
other physical and psychological trauma and abuse, deprivation,
isolation, and malnutrition. In addition to the effects of physical and
mental trauma, many suffered from diseases caused by unsanitary
conditions and inadequate diets. Many, perhaps, never fully recover
from a life experience that is far more traumatic than most in society
ever have to endure. The families of POW's also suffer, especially
families of those confined for long periods of time under uncertain
circumstances, families of those who never recover after they return to
civilian lives, and the families of those who never return at all. To
the extent we can provide former POW's benefits that address their
special needs or afford some general recompense in proportion to their
suffering and sacrifices, we should never hesitate to do so, but the
special benefits we provide should have some equitable correlation to
their degree of sacrifice.
Although the DAV fully supports, in principle, special compensation
for former POW's, we have some doubts about the appropriateness of the
formula in S. 1239 under which special compensation would be provided.
The three tiers of monthly benefit rates appear to be designed to
provide higher monetary amounts for longer periods of confinement,
i.e., $150 for 30-120 days, $300 for 121-540 days, and a maximum of
$450 for any number of days in excess of 540. A former POW imprisoned
for 30 days would receive the same monthly rate as a POW imprisoned 120
days, or four times as long. A former POW imprisoned for 120 days would
receive $150 monthly while a former POW imprisoned 1 day longer would
receive $300, or twice as much. A former POW, who was confined 121
days, or roughly 4 months, would receive $300, while a former POW
imprisoned 540 days, or 18 months, would also only receive $300. A
former POW who was detained or interned for 121 days would receive $300
while a former POW imprisoned for any period more than 540 days would
receive $450, only $150 more per month.
At a monthly rate of $150, the former POW held for 30 days would
receive $5 monthly for each day of confinement. A former POW held for
120 days would receive $1.25 for each day of confinement, while a
former POW held for 121 days would receive $2.47 for each day of
confinement. A former POW held for 540 days, or 18 times as long as a
30-day POW, would receive only $0.55 for each day of confinement, as
compared with $5 per day for the 30-day POW. A POW held for 541 days
would receive $0.83 for each day of confinement, with that rate per day
of confinement dropping with each additional day after 541 days.
According to VA statistics, there were 42,781 living former POW's
as of January 1, 2002. Data from the VA in a report entitled ``Study of
Former Prisoners of War'' from the Studies and Analysis Service of the
Office of Planning and Program Evaluation, shows the estimated average
length of internment of World War II POW's in Europe as 347 days or .95
years; World War II POW's in the Pacific, 1,148 days or 3.15 years; and
the Korean Conflict, 737 days or 2.02 years. This report notes that the
82 crew members of the naval intelligence ship U.S.S. Pueblo were
interned by North Korea for 11 months. Although the report does not
provide average internment times for Vietnam veterans, it acknowledges
that they were held ``longer than any other POW group--up to seven
years.'' However, Navy pilot, Everett Alverez, was imprisoned by North
Vietnam for more than eight-and-a-half-years. Under the formula in H.R.
850, he would receive a few pennies a month for each day of his
captivity. Moreover, this formula provides no special benefit for the
families of the hundreds of heroic POW's who died in captivity, and
thus made the ultimate sacrifice.
Any special benefit for former POW's that differentiates between
groups and provides different benefit rates according to the time they
were held as POW's should have a more meaningful correlation to their
degree of sacrifice and suffering and be money well-spent by grateful
American taxpayers. The three classifications and benefit rates for
POW's in S. 1239 do not equitably compensate POW's proportionate to
their varying lengths of detainment or internment.
The removal of the 90-day internment or detainment eligibility
threshold for dental care is straightforward, however, and makes
requirements for dental care consistent with requirements for other
medical services provided to POW's.
Generosity to POW's commensurate with their service to the Nation
is commendable, but the provisions to bar compensation for the effects
of secondary service-connected disabilities from alcohol abuse blemish
this otherwise benevolent and well-intentioned bill for POW's. In
seeking this change, VA ignores the distinction between alcohol abuse
arising from the use of alcohol to enjoy its intoxicating effects and
alcohol abuse that results from a service-connected disability. A
review of the pertinent statutory and regulatory provisions is helpful
to understanding this issue.
Under general provisions of law, a disability incurred during
active military, naval, or air service is deemed to have been incurred
in the line of duty unless the disability was the result of the
affected person's own willful misconduct. Under section 3.310(a) of
title 38, Code of Federal Regulations, ``disability which is
proximately due to or the result of a service-connected disease or
injury shall be service connected,'' and when ``service connection is
thus established for a secondary condition, the secondary condition
shall be considered a part of the original condition.''
In section 8052 of Public Law 101-508, the Omnibus Budget
Reconciliation Act of 1990, Congress amended section 105 of title 38,
United States Code, regarding line of duty and misconduct, and sections
1110 and 1131 of that title, that govern payment of wartime and
peacetime disability compensation, to provide that, in addition to
disabilities resulting from willful misconduct, disabilities from abuse
of alcohol and drugs are not in the line of duty and that compensation
shall not be paid for disability that is a result of the veteran's
abuse of alcohol or drugs.
To implement these statutory changes, VA published its proposed
rule in the Federal Register on March 1, 1994. In response, the DAV
reminded VA, as already provided in its own instructions in a circular
and its adjudication manual, that the changes in law did not apply to
alcohol-related disabilities where the alcohol abuse is a manifestation
of a service-connected disability, such as posttraumatic stress
disorder (PTSD), or where drug abuse arises out of therapy for a
service-connected disability. We recommended that these circular and
manual instructions be included in the new regulations. With the
publication of its final rule in the Federal Register on May 24, 1995,
VA addressed our comment in the preamble:
The same commenter noted that the Veterans Benefits Administration
Manual M21-1 and VBA Circular 21-90-12 provide that alcohol- or drug-
related disabilities will be considered service-connected if alcohol
abuse is a manifestation of a service-connected disability such as post
traumatic stress disorder, or if drug abuse arose out of therapy for a
service-connected disability.
He stated that these are substantive rules that should be included
in the amendment to Sec. 3.301.
The manual and circular provisions which the commenter cited are
examples of the application of 38 CFR 3.310(a), which provides that
disability that is proximately due to or the result of a service-
connected disease or injury shall be service-connected and that when
service connection is thus established for a secondary condition the
secondary condition shall be considered a part of the original
condition. In circumstances such as those raised by the commenter, VA
is required by Sec. 3.310(a) to consider conditions that it has
determined are secondary to a service-connected condition to be part of
that service-connected condition rather than a result of the abuse of
alcohol or drugs. Since that requirement is established elsewhere in
VA's regulations, it is unnecessary to incorporate those provisions
into Sec. 3.301.
VA therefore declined to incorporate its circular and manual
provisions in the rule because section 3.310(a) already addressed this
matter adequately, according to VA. VA's circular and manual provisions
initially implementing Public Law 101-508, as reinforced by its
comments in conjunction with its final rule, indicated that it
interpreted the changes in Public Law 101-508 as inapplicable to
alcohol abuse secondary to a service-connected disability. In the final
rule, VA's definition of drug abuse, codified at 38 C.F.R.
Sec. 3.301(d), explicitly excluded addiction or the effects of drug use
arising out of treatment of a service-connected disability but did not
expressly exclude alcohol-related disability secondary to a service-
connected disability. As noted, VA argued that section 3.310(a)
adequately addressed this. The definition provided:
For the purpose of this paragraph, alcohol abuse means the use of
alcoholic beverages over time, or such excessive use at any one time,
sufficient to cause disability to or death of the user; drug abuse
means the use of illegal drugs (including prescription drugs that are
illegally or illicitly obtained), the intentional use of prescription
or non-prescription drugs for a purpose other than the medically
intended use, or the use of substances other than alcohol to enjoy
their intoxicating effects.
Without addressing or explaining why it believed its original
interpretation was wrong, VA later took the position that Public Law
101-508 prohibits compensation for alcohol abuse even when due to a
service-connected disability. In an April 7, 1997, letter to the VA
General Counsel, Congressman Lane Evans of the House Veterans' Affairs
Committee advised VA that it was not the intent of Congress in Public
Law 101-508 to bar compensation for alcohol-related disabilities when
such disabilities are secondary to another service-connected
disability. Congressman Evans said: ``Where the addiction results from
the medical condition incurred or aggravated during military service,
Public Law 101-508 was not intended to preclude payment of benefits.''
In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the court
agreed with DAV's argument that the law does not bar compensation for
disability from alcohol abuse when caused by a service-connected
disability, and an expanded panel of judges, finding VA's argument
unpersuasive, rejected VA's request that the court rehear the case.
Having had its erroneous interpretation against veterans set aside by
the Court and having apparently determined it unlikely that further
appeal would be successful, VA now looks to Congress to reinstate its
incorrect view of the law. Congress should reject VA's recommendation.
Although VA's Veterans Health Administration (VHA) is a recognized
leading authority in research on and treatment of PTSD, and thus
possesses extensive information and insight into the relationship
between PTSD and alcohol abuse, VA's leadership and its Veterans
Benefits Administration (VBA) apparently understand little about the
subject, despite much puffing about the ``One-VA'' concept. Even before
the American Psychiatric Association recognized PTSD as a distinct
psychiatric disorder in 1980, those counseling Vietnam veterans
suffering from its symptoms recognized alcohol abuse as a frequent
component. Studies from the 1970s and later revealed that Vietnam
combat veterans exhibited substantially higher levels of alcohol
consumption than other veterans and non-veterans and that many combat
veterans appeared to use alcohol as an anti-anxiety agent to induce a
form of ``psychic numbing.'' It was observed that many combat veterans
appeared to be ``self-medicating'' with alcohol to suppress PTSD
symptoms.
Numerous studies about the relationship between psychiatric
disorders, particularly PTSD, and alcohol abuse have been conducted,
and VA's own National Center for PTSD recognizes the relationship. From
the Center's Internet website at www.ncptsd.org, a number of fact
sheets, articles, and clinical newsletters about PTSD and alcohol may
be accessed. One entitled ``Effects of Traumatic Experiences: A
National Center for PTSD Fact Sheet,'' explains under the heading ``How
Do Traumatic Experiences Affect People?'' that trauma survivors ``may
turn to drugs or alcohol to make them feel better.'' Under the heading
``What are the Common Basic Effects of Trauma?'' and subheading, ``All
of these problems can be secondary or associated trauma symptoms,'' the
fact sheet states:
Alcohol and/or drug abuse: can happen when a person wants to avoid
bad feelings that come with PTSD symptoms, or when things that happened
at the time of the trauma lead a person to take drugs. This is a common
way to cope with upsetting trauma symptoms, but it actually leads to
more problems.
Another fact sheet entitled ``PTSD and Problems with Alcohol Use''
observes:
Sixty to eighty percent of Vietnam veterans seeking PTSD treatment
have alcohol use disorders. Veterans over the age of 65 with PTSD are
at increased risk for attempted suicide if they also experience
problematic alcohol use or depression. War veterans diagnosed with PTSD
and alcohol use tend to be binge drinkers. Binges may be in reaction to
memories or reminders of trauma.
Other articles by various authors on the subject accessible from
the Center website include the following:
<bullet> PTSD and Substance Abuse: Clinical Assessment
Considerations
<bullet> Dual Diagnosis: PTSD and Alcohol Abuse
<bullet> Chronic PTSD in Vietnam Combat Veterans: Course of Illness
and Substance Abuse
<bullet> Substance abuse and post-traumatic stress disorder co-
morbidity
<bullet> Post-Traumatic Stress Disorder and Comorbidity:
Psychological Approaches to Differential Diagnosis
Under an article titled ``Identifying the PTSD paradox,'' in a
recent issue (Vol. 24, No. 1) of the Vet Center Voice, published by
VA's Readjustment Counseling Service, the author presents ``models''
related to PTSD and its treatment. ``Model A'' lists ``Self-medicate''
as the first feature of avoidance devices and symptoms. The author, a
PTSD treatment team leader at a VA Vet Center, explains in the
introduction how the veteran may be unable to escape the trauma of the
past and become entrapped by PTSD symptoms and consequent alcohol
abuse:
Other veterans, however, continue to experience distress as they go
through life, as if they must continue to live today under the rules
and regulations that were imposed upon them in the past, during moments
of trauma. Not only do some veterans continue to live in the past, but
new learning in the present seems to have come to a standstill: today
is just like yesterday which is just like 30 years ago; there are no
differences--``I am my trauma; I am my PTSD.'' The self becomes
enmeshed with the past, exposure to traumatic events, and PTSD symptoms
in the presence of such distortions. The self is surrounded by a layer
of trauma, followed by a layer of PTSD symptoms, followed in some cases
by a layer of substance abuse. Reins of control are in the hands of
PTSD. Under these conditions, a relationship in the present with others
and life and living is difficult and distressing. Indeed, a
relationship with the past, trauma, and PTSD is maintained to the
exclusion of one's relationship with life today and living in the
present.
Under his discussion of ``Model B,'' the author explains:
``Hyperarousal also contributes to cognitive distortions, heightened
emotionality and maladaptive behaviors such as aggression, isolation,
sleep disturbance, lack of concentration and self-medication.'' Under
another model, the ``Negative SORC'' (Situation, Organism, Reaction,
Consequences), the author shows how an individual with PTSD might react
to a negative event with emotional symptoms, and negative reactions,
such as to ``Start drinking.''
The VA's 1985 edition of the Physician's Guide for Disability
Evaluation Examinations stated that substance abuse ``may be either
primary, or secondary to posttraumatic stress disorder.'' The
Clinicians' Guide that replaced it states that substance abuse ``may
occur as a result of PTSD'' and ``when a veteran's alcohol or drug
abuse is secondary to or is caused or aggravated by a primary service-
connected disorder, the veteran may be entitled to compensation.''
Among other things, the Clinicians' Guide instructs examiners to
explain why ``substance abuse had onset after PTSD and clearly is a
means of coping with PTSD symptoms.''
Many former POW's suffer from PTSD and other psychiatric disorders.
These conditions are so common in POW's that anxiety, depressive, and
psychotic disorders affecting former POW's are presumed service
connected under section 1112 of title 38, United States Code. This
provision in S. 1239 will prohibit them from being compensated for the
effects of alcohol-related disabilities caused by PTSD.
The fact sheet quoted above, ``PTSD and Problems with Alcohol
Use,'' states: ``Women exposed to trauma show an increased risk for an
alcohol use disorder even if they are not experiencing PTSD. Women with
problematic alcohol use are more likely than other women to have been
sexually abused at some point in their lives.'' With women in the Armed
Forces being captured and held as POW's, and with the possibility that
female POW's could be brutalized and sexually abused by undisciplined,
unprincipled enemy forces, the possibility exists that female POW's
might begin to abuse alcohol as a means to escape the unforgettable
horrors of their experiences. Will they then become victims of the
insensitivity of our own government?
Obviously, this provision to prohibit compensation for alcohol
abuse, included in S. 1239 at the urging of VA, does not have
recognized medical principles and fair and equitable treatment of
veterans as its bases. Regrettably, this recommendation reflects very
negatively upon the agency that is charged with understanding and
having insight into the effects of trauma and severe disabilities upon
veterans. It evidences a narrow-minded insensitivity to the real nature
of the effects of severe trauma and severe disability upon young men
and women who bear these extraordinary burdens and suffer these
extremely traumatic experiences. We oppose such an unwarranted,
inequitable change in the strongest possible terms, and we urge that
this Committee not report S. 1239 with this objectionable provision
included.
S. 1281
Section 2 of S. 1281, the Veterans Information and Benefits
Enhancement Act of 2003, would add to the list of diseases subject to
the statutory presumption of service connection based on internment or
detainment as a POW cardiovascular disease, cerebrovascular disease,
and chronic liver disease, including cirrhosis and primary liver
carcinoma. Section 3 would require the Secretaries of VA and the
Department of Defense to jointly conduct a review of the radiation Dose
Reconstruction Program of the Department of Defense (DoD) to determine
how well that program is working and report to Congress the findings of
the review. In addition, section 3 would establish oversight
requirements for the Secretaries and an advisory board to conduct
periodic audits of dose reconstructions and perform other functions to
ensure the integrity of the program. Section 4 would require the
Secretary of Veterans Affairs to determine the appropriate disposition
of the Air Force Health Study of personnel who were involved in aerial
spraying of herbicides during the Vietnam Era. Section 5 would require
the VA and DoD Secretaries to make funds available to the National
Academy of Sciences for epidemiological research on members of the
Armed Forces and veterans.
It is self-evident that the provisions in each of these sections
would serve to improve veterans' programs and the scientific data upon
which entitlement decisions are made. Certainly, the accuracy of the
Government's radiation dose reconstruction program has been doubted and
questioned for a long time, and recent information indicates that those
doubts were justified. Similarly, the Government's actions with regard
to herbicide exposure and its consequences have not engendered public
confidence. The DAV supports S. 1281. We also suggest that the better
solution to radiation dose estimates is to remove the uncertainties
related to dose quantification and the supposed corresponding risk of
harmful effects from the consideration altogether, as has already been
done for determinations of service connection under presumptive
provisions.
BILLS RELATING TO VETERANS' SURVIVOR BENEFITS--S. 249
This bill would amend the law to provide continued eligibility for
DIC when the surviving spouse remarries after age 55. Under current
law, DIC eligibility terminates upon remarriage of the surviving
spouse. Section 103(d)(2)(B) of title 38, United States Code, exempts
medical care for certain veterans' spouses from the general rule that a
surviving spouse's eligibility for veterans' benefits terminates upon
his or her remarriage. This bill would amend (d)(2)(B) of section 103
to include DIC in the exemption by adding a cross-reference to section
1311 of title 38, United States Code.
Veterans' benefits are provided to family members because they are,
or were during the disabled veteran's lifetime, dependent upon the
veteran for support. Entitlement to those benefits ends when the
dependence ends by reason of age, marriage, or remarriage. Under
section 1310 of title 38, United States Code, DIC may be paid to
surviving spouses, children, and dependent parents of veterans. Section
1318 of title 38, United States Code, authorizes DIC for surviving
spouses and children of veterans whose deaths were preceded by total
service-connected disabilities for specified periods. Under section
101(14) of title 38, United States Code, DIC is a benefit paid to a
``surviving spouse, child, or parent.'' Under section 101(3),
``surviving spouse'' is defined as, among other things, a spouse who
``has not remarried,'' and section 101(4) conditions status as a
``child'' upon the child being ``unmarried.'' Thus, by definition, DIC,
as it pertains to a surviving spouse or child, is a benefit for a
survivor who is unmarried. Under section 103(d) of title 38, United
States Code, entitlement to DIC revives upon the termination of a
disqualifying marriage of a surviving spouse.
The DAV has no mandate from its membership on this issue, but the
purpose of this bill is one beneficial to surviving spouses of disabled
veterans, and we therefore have no objection to its favorable
consideration. However, because section 1311 is not the authority for
DIC but rather sets the payment rates and because this amendment would
make the existing definition of DIC under section 101 incongruent with
the nature of the benefit insofar as it would be paid to remarried
spouses, we question whether S. 249 would accomplish the change in the
most appropriate manner under principles of good statutory drafting.
S. 938
Under section 1318(b)(3) of title 38, United States Code, DIC is
authorized for certain surviving spouses and children of former POW's
whose deaths were preceded by total service-connected disabilities.
Before enactment of Public Law 106-117, eligibility criteria for DIC
under section 1318 required that veterans must have been totally
disabled by a service-connected condition for a period of 10 years or
more immediately preceding death. Public Law 106-117 eliminated the 10-
year time requirement for survivors of POW's. Congress recognized that
knowledge of the cause-and-effect relationships between the harsh
conditions of confinement as a POW and many diseases had only recently
come to light, and provisions for presumptive service connection had
therefore not been in effect sufficiently long for POW's to have
established service connection and a total rating for the requisite 10-
year period although many had in fact suffered total disability from
these conditions for 10 or more years. However, Congress did not make
these liberalizing provisions applicable retroactively. The change
applied only to claims based on deaths after September 30, 1999, the
effective date of Public Law 106-117.
This bill would make the 1-year total disability requirement
applicable to any DIC claim based on total service-connected disability
of a former POW. The DAV supports S. 938.
S. 1132
This bill, the Veterans' Survivors Benefits Enhancements Act of
2003, would make several changes in the benefits provided to veterans'
survivors, dependents, and disabled children. Section 2 would increase
the monthly allowances provided under the survivors' and dependents'
educational assistance program. Section 3 would reduce the duration of
assistance under the survivors' and dependents' educational assistance
program from 45 to 36 months. Section 4 would add $250 monthly to the
DIC payment for a surviving spouse with one or more children below age
18, with such additional payment to continue until every child has
attained age 18 or until the end of the 5-year period beginning on the
date of the veteran's death, whichever is earlier. As with section 10
of S. 1133, section 5 of this bill would allow spouses who survived the
veteran and who were remarried at the time of their death to be buried
in national cemeteries. Section 6 would extend benefits for spina-
bifida now available to children of herbicide-exposed Vietnam veterans
to children of veterans who were exposed to herbicide agents in Korea
during the period beginning on January 1, 1967 and ending December 31,
1969, with a prohibition against duplication of benefits based on
exposure in both locations.
The DAV supports section 2, which would provide greater assistance
to dependents and survivors pursuing a course of education. However,
the DAV does not support section 3, which would reduce the duration of
that program from the current 45 months to 36 months. While 36 months
may be adequate to obtain a 4-year degree in most circumstances, we
question whether the availability of more time for special
circumstances would have any significant budgetary impact. The DAV
supports section 4 which would provide higher rates of DIC for
surviving spouses who have a greater financial burden during the period
in which there are minor children in the home. The DAV has no position
on section 5, which would authorize burial of a remarried spouse in a
national cemetery. The DAV does not have a mandate from its membership
on section 6; however, we note, as a matter of fundamental fairness,
benefits provided on account of exposure to herbicides should not be
granted to one group and denied another solely because the veteran
parents in the first group were exposed in Vietnam and the veteran
parents in the second group were exposed in Korea.
PROPOSED SOLDIERS AND SAILORS CIVIL RELIEF ACT AMENDMENTS
S. 1136, S. 792, AND S. 806
These three bills address current circumstances in which a need
exists to afford certain relief and assistance to service members who
have been called away from jobs and families for extended periods to
serve on active duty. Although meritorious, the purposes of these bills
are beyond the scope of the DAV's legislative mission, i.e., issues
pertaining to rights and benefits for service-connected disabled
veterans and their dependents and survivors. We have no position on S.
1136, S. 792, and S. 806.
BILLS RELATING TO OTHER MATTERS--S. 978
The Veterans Housing Fairness Act of 2003 would make VA housing
loans available for purchase of residential cooperative housing units.
This expands authority for VA home loans to add this option for home
ownership in the changing marketplace. The DAV has no mandate from its
membership on this issue, but finds the legislation to be beneficial.
S. 1124
The Veterans Burial Benefits Improvement Act of 2003 would increase
the base burial and funeral allowance from $300 to $1,135, the burial
allowance for service-connected deaths from $2,000 to $3,712, and the
burial plot allowance from $300 to $670. In addition, S. 1124 would
provide for automatic future annual adjustments indexed to increases in
the cost of living.
Like disability compensation, DIC, and the clothing allowance,
burial and plot allowances should be adjusted annually. For every year
in which these allowances remain the same despite an increase in the
cost of living, their value erodes. Because Congress has not regularly
enacted legislation to adjust these benefits, their value has seriously
eroded.
These increases are consistent with recommendations of The
Independent Budget for FY 2004, which states:
Congress has not substantially increased veterans burial benefits
for the families of our wounded and disabled veterans for over a
decade. A PricewaterhouseCoopers study, submitted to VA in December
2000, indicates serious erosion in the value of burial allowance
benefits. While these benefits were never intended to cover the full
costs of burial, they now pay for only a fraction of what they covered
in 1973.
In the 107th Congress, the plot allowance . . . was increased for
the first time in over 28 years to $300 from $150 . . . The IBVSO's
recommend increasing the plot allowance from $300 to $670, an amount
proportionately equal to the benefit paid in 1973.
Also in the last Congress, the allowance for service-connected
deaths was increased from $500 to $2,000. Prior to this adjustment, the
allowance had been untouched since 1988. Clearly, it is time this
allowance was raised to make a more meaningful contribution to the
costs of burial for our veterans. The IBVSO's recommend increasing the
service-connected benefit from $2,000 to $3,700, bringing it back up to
its original proportionate level of burial costs.
The non-service-connected benefit was last adjusted in 1978, and
today it covers just 6 percent of funeral costs. We recommend
increasing the non-service-connected benefit from $300 to $1,135.
Finally, the IBVSO's recognize the need to adjust burial benefits
for inflation annually to maintain the value of these important
benefits.
For these reasons, the DAV's membership has adopted a resolution
for the DAV to support legislation increasing burial benefits and
providing for automatic annual adjustments based on the Consumer Price
Index. We therefore urge favorable action by the Committee on S. 1124.
S. 1199
To improve the dissemination of information on programs for
veterans, the Veterans Outreach Improvement Act of 2003 would first
define outreach according to its methods and goals to guide VA actions.
It would establish by law separate funding line items for outreach
activities within the budgets of VA and its three administrations, VHA,
VBA, and the National Cemetery Administration (NCA). Separate funding
would serve to assure that the resources provided by Congress are used
to meet the goals of this legislation. The bill would require the VA
Secretary to establish and maintain procedures to coordinate outreach
activities between the Office of the Secretary, the Office of Public
Affairs, VBA, VHA, and NCA to gain economies of scale and avoid
duplication and inconsistency. It would authorize VA collaboration with
state governments to take advantage of and supplement their resources
with grants for the purpose of providing outreach. The DAV supports S.
1199.
S. 1282
This bill would require the VA Secretary to determine from current
population data the 10 areas in the United States where the need for
new national cemeteries is most urgent, toward the goal of ensuring
that 90 percent of the veterans within a 75-mile radius of a population
center have access to a national cemetery. The Secretary would be
required to carry out advanced planning for the establishment of
cemeteries in these 10 ``burial service areas,'' report to Congress his
findings, and establish a national cemetery in each such area.
The provisions of this bill are consistent with the DAV's
resolution calling for an adequate number of national cemeteries and
recommendations by The Independent Budget. The DAV supports S. 1282.
S. 1360
By reference to existing statutory provisions regarding the form of
a ``notice of disagreement,'' this bill would provide that a document
conforming to the existing requirements will be accepted by VA as a
notice of disagreement. Under section 7105 of title 38, United States
Code, a veteran may initiate an appeal by notifying VA in writing of
his or her disagreement with a VA decision. The statute requires
nothing more to trigger the appellate process within VA. This bill
would override a decision by the United States Court of Appeals for the
Federal Circuit that upheld VA's regulation, which has requirements
beyond those set forth in section 7105. The change would apply to any
notice of disagreement filed on or after the date of enactment of S.
1360 and any existing notice of disagreement that had not been rejected
by VA at the time of enactment. For any document rejected as a notice
of disagreement by VA as not conforming to its regulatory requirements,
the bill provides that VA must accept the document as a notice of
disagreement if affirmatively requested to do so by the veteran or
other claimant within the time prescribed for such request. Also, the
Secretary may, on his own motion, accept the previously rejected
document as notice of disagreement.
The process Congress established for veterans' claims and appeals
is designed to be simple, informal, and pro-veteran. Because the
process is non-adversarial and because VA has the obligation of
assisting the veteran in prosecuting claims and appeals, adverse
actions based purely on formalities are inappropriate. In the case
leading to the decision by the Federal Circuit, the veteran had
notified VA of his disagreement in accordance with the requirements of
the statute but had not expressly stated that he desired appellate
review, as required by VA's regulation. This seems somewhat absurd
inasmuch as the purpose of a notice of disagreement is to formally
lodge an appeal. It inherently communicates a desire for appellate
review. To require the veteran to also expressly state he or she
desires appellate review is a redundant and unnecessary formality.
Regrettably, this represents the mindset of today's VA in which VA will
resort to an extremely strict literal reading of somewhat imprecise
regulatory text to justify a result against a veteran. The pertinent
general words on which VA relied to reject the veteran's notice of
disagreement in the case decided by the Federal Circuit were: ``the
Notice of Disagreement must be in terms which can reasonably be
construed as disagreement with [the] determination and a desire for
appellate review.''
It is regrettable that it becomes necessary for Congress to
intervene to prevent such behavior by VA, but it has nonetheless become
necessary in this instance. We urge the Committee to act favorably and
promptly to restore reason to VA's appellate process.
These many beneficial provisions included in these several bills
demonstrate the sincere efforts of members and staff of this Committee,
as well as other Senators who introduced and co-sponsored some of these
bills, to improve veterans' programs. We appreciate this strong support
for our Nation's disabled veterans.
__________
Prepared Statement of Carl Blake, Associate Legislative Director,
Paralyzed Veterans of America
Chairman Specter, Ranking Member Graham, Members of the Committee,
PVA would like to thank you for the opportunity to testify today
concerning the proposed veterans benefits legislation. PVA is pleased
to present our views on the important issues that you have addressed
with these measures.
S. 257--THE ``VETERANS BENEFITS AND PENSIONS PROTECTION ACT OF 2003''
PVA supports S. 257, the ``Veterans Benefits and Pensions
Protection Act of 2003.'' This measure would provide protection to some
of our most vulnerable veterans. S. 257 would close a current loophole
by prohibiting assignment contracts transferring certain veterans'
benefits for cash ``buy-outs'' to non-veteran entities for specified
periods. The Department of Veterans Affairs (VA) Inspector General has
stated in previous testimony that ``these schemes seem to target the
most financially desperate veterans who are most vulnerable. For many
unsuspecting veterans these benefit buyouts could be financially
devastating.''
S. 517--THE ``FRANCIS W. AGNES PRISONER OF WAR BENEFITS ACT OF 2003''
S. 517 would repeal the current requirement that a former prisoner
of war be interned for at least 30 days in order for the VA to
recognize a presumption of service-connection for certain listed
diseases directly associated with that internment, for purposes of the
payment of veterans' disability compensation. It would also repeal the
90-day minimum period of internment in order for the veteran to be
eligible for dental care furnished by the VA. The proposed legislation
adds heart disease, stroke, liver disease, Type 2 Diabetes, and
osteoporosis to the list of diseases presumed to be service-connected
for former prisoners of war. PVA recognizes that prisoners of war have
suffered extreme hardships in defense of this country. We also
recognize that veterans who were held as prisoners of war for less than
30 or 90 days did not necessarily suffer any less than those veterans
who were held longer. PVA supports this legislation.
S. 1131--THE ``VETERANS' COMPENSATION COST-OF-LIVING ADJUSTMENT ACT OF
2003''
PVA supports S. 1131, a bill to increase the rates of compensation
for veterans with service-connected disabilities and the rates of
dependency and indemnity compensation for certain disabled veterans. We
oppose again this year, as we have in the past, the provision rounding
down to the nearest whole dollar compensation increases.
S. 1133--THE ``VETERANS PROGRAMS IMPROVEMENT ACT OF 2003''
As stated previously, PVA supports Section 2 of S. 1133 which would
increase the rates of compensation for veterans with service-connected
disabilities and the rates of dependency and indemnity compensation.
However, we oppose the provision requiring the rounding down to the
nearest whole dollar amount compensation increases.
Section 3 of the proposed legislation would repeal the 45-day rule
for the effective date of award of death pension. The award of death
pension would be placed in the same section as death compensation and
DIC. This means that death pension benefits can be paid as long as an
application for these benefits is made within one year, not 45 days.
The elimination of the 45-day rule is yet another issue of fairness for
claimants who are coping with the losses of loved ones. PVA supports
this section. Likewise, PVA supports Section 4 which would exclude the
proceeds of life insurance from consideration as income for purposes of
determining veterans' pension benefits.
PVA is deeply troubled by, and sees no need for, Section 5 of this
legislation as written. The narrowness of the Federal Circuit Court of
Appeals' holding in Allen v. Principi, 237 F.3d 1368 (U.S.C.A. Fed.
Cir. 2001), a narrowness repeatedly referenced by the Court, would
enable compensation only when there is ``clear medical evidence
establishing that the alcohol or drug-abuse disability is indeed caused
by a veteran's primary service-connected disability, and where the
alcohol or drug-abuse disability is not due to willful wrongdoing.'' We
are also concerned that this section would erase the important
distinction between willful and involuntary acts, a concern also
expressed by the Court.
Section 6 of the S. 1133 would ensure that insurance payments are
made to a primary beneficiary or a designated alternate beneficiary.
National Service Life Insurance (NSLI) and United States Government
Life Insurance (USGLI) are important benefits available to veterans and
their families. It is essential that these benefits be paid to the
proper beneficiary in the event that a veteran dies. Likewise, it is
important that an alternate beneficiary be designated by the veteran
who carries USGLI or NSLI so that an insurance payment may be made to
an appropriate beneficiary. The VA must play an active part in ensuring
that benefits intended for a veteran's surviving spouse or alternate
beneficiary are paid in full. PVA does have concerns about allowing the
Secretary of Veterans Affairs to determine who will receive the
benefits in the event that no claim has been filed within four years.
We do not understand how the Secretary has the knowledge and authority
to make such a decision.
Section 7 of the legislation allows the VA to not pay benefits to a
claimant if the claimant does not provide information requested by the
VA within one year of that request. PVA opposes this section. Veterans
should not be subject to a time limitation for anything related to the
completion of a claim for disability. The VA has a responsibility to
ensure that a veteran is given the benefit of the doubt when filing his
or her claim. That veteran should not be under pressure to meet a time
deadline because the VA does not want to take more time to ensure a
veteran is properly taken care of.
PVA supports the provisions of Section 8 of S. 1133. This provision
would allow the VA to pay states a plot allowance for burying veterans
in state cemeteries. Currently, states do not receive this allowance if
a veteran's surviving spouse files for reimbursement of funeral
expenses. Our position is consistent with the recommendations of The
Independent Budget. PVA also supports Section 9 of the bill. This
provision would allow the VA to furnish a government marker to the
family of veteran whose grave already has a private marker. Currently,
this is allowed for veterans who died after September 11, 2001. This
provision would extend that time period to include veterans that died
after November 1, 1990.
PVA has no position on Section 10 of this legislation. This section
would permit the surviving spouse of a veteran who remarries to be
eligible for burial in a national cemetery. Current eligibility allows
for a surviving spouse who is remarried to a non-veteran to be buried
in a national cemetery. The spouse is eligible if the remarriage is
terminated by divorce or the non-veteran spouse dies. The proposal
seems to be consistent with current law. PVA understands this proposal,
as it is written, allows a remarried spouse to be buried together with
the deceased veteran whether or not he or she is divorced from the new
spouse or the new spouse is deceased. PVA is concerned that this
section may be unnecessary.
Section 11 of S. 1133 would remove the end date for providing state
cemetery grants and make the program permanent. This program is
currently scheduled to end at the end of FY 2004. PVA has no objection
to this provision. Section 12 of the legislation adds to the list of
offenses that a veteran could be convicted of that would result in a
forfeiture of ``gratuitous'' VA benefits. Section 6105 provides that an
individual convicted after September 1, 1959, of any of several
specified offenses involving subversive activities shall have no right
to gratuitous benefits, including national cemetery burial, under laws
administered by the Secretary of Veterans Affairs and that no other
person shall be entitled to such benefits on account of such
individual. Congress' primary concern in enacting this provision was to
prevent VA benefits from being provided based on military service of
persons found guilty of offenses involving national security.
This section adds six classes of ``subversive'' activities. The
following offenses from title 18, United States Code, would be added:
sections 175 (Prohibitions with respect to biological weapons); 229
(Prohibited activities with respect to chemical weapons); 831
(Prohibited transactions involving nuclear materials); 1091 (Genocide);
2332a (Use of certain weapons of mass destruction); and 2332b (Acts of
terrorism transcending national boundaries). These activities are
recognized as threats to national security. PVA has no position on this
section.
PVA has no objection to the provisions of Section 13 or 14. PVA
supports Section 15 which provides for an extension in the period of
eligibility for survivors' and dependents' education benefits for
members of the National Guard who are involuntarily ordered to active
duty. The legislation would extend the delimiting date for use of
Chapter 35 education benefits. The amount of time available for this
benefit would be extended the length of the active duty service time
plus four additional months.
PVA fully supports the provisions of Section 16 of S. 1133. This
section would allow for a veteran who is eligible for Montgomery GI
Bill benefits to use those benefits to pay for self-employment
training. This provision would meet the intent of P.L. 106-50, which
PVA worked to get enacted, which fosters veteran-owned small business
entrepreneurship. A veteran would not be able to use these benefits
unless the program or entity providing the self-employment or on-the-
job training was certified by a state approving agency.
S. 1188
Under current law, if a veteran dies while a claim is being
processed by the Department of Veterans Affairs (VA), but before his or
her claim becomes final, the surviving spouse is entitled to no more
than two years of accrued benefits when the claim is decided in the
veteran's favor. S. 1188 repeals this two-year limitation allowing the
veteran's surviving spouse to receive the full amount of the award and
not be penalized by VA's failure to resolve a claim in a timely manner.
The Independent Budget clearly states that ``with the time period for
processing claims and appeals often being a matter of years, this
limitation is inequitable.'' A veteran's surviving spouse should not be
forced to suffer the consequences of the VA's inefficiency. PVA fully
supports Section 2 of S. 1188.
We do, however, have concerns regarding provisions of S. 1188 that
allow for substitutions before the Court of Appeals for Veterans
Claims. As the Court noted in Vda de Landicho v. Brown, ``the issues
involved in the Board's [of Veterans Appeals'] adjudication of the
deceased veterans' underlying claims are not identical to those needing
resolution in an accrued-benefits claim.'' 7 Vet. App. 42, 48 (1994).
In addition, these provisions conceivably could change the nature
of the Court, as well as implicate the ``case or controversy''
requirement. The Court is not generally considered to be an initial
trier of facts. As the Court stated in de Landicho, if it ``were to
permit a putative accrued-benefits claimant to continue the appeal,
there would be no guarantee that that individual would be entitled to
accrued benefits [.] Further, there is no innate guarantee, in the case
of the death of any veteran, that any accrued-benefits claimant exists;
a veteran may die without leaving a qualified spouse, child, parent, or
final-sickness-caregiver. Absent a BVA decision that a survivor is
qualified under section 5121, any decision the Court would render on
the deceased veterans' service-connection or increased-rating claims
could well be purely hypothetical.'' de Landicho at 49 [emphasis in
original].
S. 1213--THE ``FILIPINO VETERANS' BENEFITS ACT OF 2003''
PVA strongly supports S. 1213, the ``Filipino Veterans' Benefits
Act of 2003.'' This legislation would extend health care benefits to
certain Filipino veterans residing legally in the United States. It
would also eliminate statutory payment rates that allow Filipino
veterans and their survivors who live in the United States to be paid
less than other veterans and their survivors who live in the United
States. PVA supports the provision of health care and nursing home care
outlined in Section 2 of this bill.
Section 3 of the draft bill addresses a basic issue of fairness and
equality for payments of compensation and dependency and indemnity
compensation (DIC). Currently, Filipino veterans receive compensation
payments at the rate of $0.50 for every dollar that other veterans
receive. PVA supports Section 3. PVA also supports the extension of the
operation of a regional office in the Philippines provided for in
Section 4 and the offering of national cemetery burial to New
Philippine Scouts provided for in Section 5.
S. 1239--THE ``FORMER PRISONERS OF WAR SPECIAL COMPENSATION ACT OF
2003''
S. 1239 would allow the VA to pay a monthly special compensation to
veterans who were prisoners of war. The amount of this compensation
would be based on the length of time that the veteran was actually held
as a prisoner. The bill would also allow the VA to provide dental care
to all former prisoners of war, not just those who were held captive
for more than 90 days. PVA supports the provisions of Section 2 and 4
of the proposed legislation; however, we have concerns about whether or
not the formula used to determine the amount of compensation is fair
and equitable. We would urge the Committee to consider other
alternatives for the payment of compensation.
As we stated in our testimony regarding S. 1133: PVA is troubled by
Section 3 and sees no need for this legislation as written. The
narrowness of the Federal Circuit Court of Appeals' holding in Allen v.
Principi 237 F.3d 1368 (U.S.C.A. Fed. Cir. 2001), a narrowness
repeatedly referenced by the Court, would enable compensation only when
there is ``clear medical evidence establishing that the alcohol or
drug-abuse disability is indeed caused by a veteran's primary service-
connected disability, and where the alcohol or drug-abuse disability is
not due to willful wrongdoing.'' We are also concerned that this
section would erase the important distinction between willful and
involuntary acts, a concern also expressed by the Court.
S. 1281--THE ``VETERANS INFORMATION AND BENEFITS ENHANCEMENT ACT OF
2003''
PVA supports Section 2 of S. 1281 which would add three diseases to
the list of conditions presumed to be service-connected for former
prisoners of war. These diseases include cardiovascular disease,
cerebrovascular disease, and chronic liver disease. PVA also supports
the intentions of the provisions of Section 3 and Section 4 which would
require the Secretary to conduct a review of the Department of Defense
Dose Reconstruction Program and the Air Force Health Study. Finally,
PVA supports the Section 5 which would require both the VA and DoD to
provide funding for the Medical Follow-up Agency, a scientific body
charged with tracking the health of veterans and military service
members. This provision is consistent with the original law, P.L. 102-
585, which required the two agencies to fund this program.
S. 249
The proposed bill, S. 249, allows for the surviving spouse of a
deceased veteran to continue to receive Dependency and Indemnity
Compensation (DIC) if he or she remarries after the age of 55. This
bill would prevent the VA from stopping payment of these benefits to
the surviving spouse. PVA does not have a resolution addressing this
issue. This is an issue that staff members in our Veterans Benefits
department continue to monitor and evaluate. At this time, PVA does not
oppose this proposed legislation.
S. 938
S. 938 provides for the payment of DIC to survivors of veterans who
were former prisoners of war who died on or before September 30, 1999.
Under this proposed legislation, the same eligibility conditions that
apply to payment of DIC to the survivors of former prisoners of war who
die after that date will apply to this new group of survivors. It is
important that the surviving spouses and dependents of veterans who
were held as prisoners of war receive just compensation. This is an
issue of fairness and equity for all surviving spouses of former
prisoners of war. PVA fully supports S. 938.
S. 1132--THE ``VETERANS' SURVIVORS BENEFITS ENHANCEMENTS ACT OF 2003''
PVA supports Section 2 of the ``Veterans' Survivors Benefits
Enhancement Act.'' This section would increase the monthly Survivors'
and Dependents' Education Assistance, DEA, benefits from $680 to $985.
The surviving spouse or dependent child of a veteran who is killed
while in the service or fatally injured is entitled to these education
benefits. However, the small amount is not enough to provide for the
costs of tuition, fees, and room and board. PVA recognizes this as a
basic issue of fairness. Surviving spouses and dependent children are
still left with a heavy burden when paying for an expanded education.
This increased benefit would provide the resources they need to pay for
the costs of tuition, as well as other fees and room and board.
However, PVA has concerns with Section 3 of the proposed legislation.
As we understand it, this legislation would reduce the time frame for
use of the benefits from 45 to 36 months for any surviving spouse who
claims the benefits after the enactment of this bill. PVA opposes any
reduction in the amount of time that the veteran's family has to use
these benefits.
Section 4 of the bill would increase the rate of DIC by $250 per
month, from the current rate of $948, from the month immediately
following the death of a veteran. This increased rate would be in
effect for five years after the veteran's death and effect surviving
spouses who have dependent children. This rate will cease the first
month after all dependent children reach the age of 18. PVA supports
this section. This provision would reinforce the commitment of the VA
to both a veteran and his or her family.
PVA also supports Section 6 which would expand benefits available
to dependent children of veterans who suffer from spina-bifida. The
veteran whose children are eligible must have served in or near the
Korean demilitarized zone between January 1, 1967 and December 31, 1969
during which time the defoliant Agent Orange was utilized.
S. 792 AND S. 1136--THE ``SERVICE MEMBERS CIVIL RELIEF ACT''
We welcome both S. 792 and S. 1136 and thank Senators Nelson and
Specter for introducing them. Times are very different from when the
Soldiers and Sailors Civil Relief Act was introduced in 1940. In many
ways, the Act has not kept up with the times.
Though these bills are similar and we support both bills, we would
prefer to see the more beneficial provisions of S. 1136. These include
the higher monthly rent provision of Sec. 301, the inclusion of motor
vehicle leases in Sec. 305 and the provisions of Sec. 706 providing
protections of business obligations and 707 providing the opportunity
to return to educational classes with no extra costs.
Service members often live in high rent areas and implementing the
$1,950 rent level specified in Sec. 301 will benefit a large number of
service members. The addition of a provision using the monthly basic
allowance for housing as a guide will also protect the service member
against the wide disparities in lease costs that can occur nationwide.
Sec. 305 adds motor vehicles to the provisions that cover real
property leases. It makes no sense to permit a service member to
terminate a lease for housing while requiring them to maintain a lease
on a vehicle they have no opportunity to use. This is clearly different
from payments on a motor vehicle that is owned. A lease is payment for
the use of the vehicle. The inability of the service member to use the
vehicle should preclude their requirement to pay for it.
PVA applauds the inclusion of Sec. 706. Many service members are
engaged in small businesses or have professional obligations. This is
particularly true for Reservists and National Guardsman. The provisions
to protect the personal assets of a service member that are not part of
the business are needed to insure service to this nation does not
destroy the life, livelihood or family of the service member. We also
feel that Sec. 706(b) provides sufficient safeguards to obligators in
allowing for the courts to modify the relief.
Sec. 707 simply makes good sense. Our service members should not be
punished with extra costs or lost educational benefits because of their
military service.
S. 806--THE ``DEPLOYED SERVICE MEMBERS FINANCIAL SECURITY AND EDUCATION
ACT OF 2003''
We thank Senator Nelson for his introduction of S. 806, the
Deployed Service Members Financial Security and Education Act of 2003.
Today's service members face significant challenges with longer and
more frequent deployments. The impact on family members is significant,
especially on children. Another impact is the financial effect of
deployment. The added costs of phone calls, shipping costs for packages
and additional comfort items provided to their deployed family members
can be significant. In addition, soldiers often maintain part-time jobs
to supplement their lower pay. The $1,000 allowance would help defer
many of these extra expenses. PVA also supports the educational
provisions of the bill. As many service members try to continue their
educations while a member of the military, they should not be penalized
when called to defend the nation.
S. 978--THE ``VETERANS HOUSING FAIRNESS ACT OF 2003''
PVA supports the provisions of S. 978. 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.
S. 1124--THE ``VETERANS BURIAL BENEFITS IMPROVEMENT ACT OF 2003''
PVA fully supports this proposed legislation. The provisions are
consistent with the recommendations of The Independent Budget with
regards to burial benefits. The Independent Budget states:
Congress has not substantially increased veterans burial benefits
for the families of our wounded and disabled veterans in over a
decade[.] While these benefits were never intended to cover the full
costs of burial, they now pay for only a fraction of what they covered
in 1973, when the federal government first started paying burial
benefits for our veterans.
S. 1124 would increase the plot allowance from $300 to $670. It
would also increase the service-connected benefit from $2,000 to $3,712
and the non-service-connected benefit from $300 to $1,135. PVA also
appreciates the provision allowing for an annual inflation adjustment
in the burial benefits.
S. 1199--THE ``VETERANS OUTREACH IMPROVEMENT ACT OF 2003''
The ``Veterans Outreach Improvement Act'' is intended to improve
outreach activities performed by the VA. It does so by creating a new
budget line item for funding the outreach activities of the Veterans
Health Administration (VHA), the Veterans Benefits Administration
(VBA), and the National Cemetery Administration (NCA). This money is
currently drawn from the budget line item for general operating
expenses.
The bill also would create a structure within the VA to require the
Office of the Secretary, the Office of Public Affairs, the VBA, the
VHA, and the NCA to coordinate outreach activities. Coordinated
activities could improve the efficiency of each office and make them
more effective at providing for the needs of current veterans and new
veterans who will be returning home from new conflicts. The legislation
would also allow the VA to enter into cooperative agreements with State
Departments of Veterans Affairs regarding outreach activities and would
give the VA the authority to provide grants to these state departments.
PVA supports the provisions of S. 1199.
S. 1282
PVA fully supports the provisions of S. 1282. This bill would
require the VA to establish new national cemeteries in the 10 most
underserved geographic areas in the country. These areas are defined as
having 170,000 or more veterans living in the area who are more than 75
miles away from the nearest national cemetery. With the rate that
veterans are dying today, particularly World War II veterans, it is
imperative that the VA be able to provide a suitable burial location
for these men and women. It is also important that the families of
these deceased veterans have relatively easy access to these locations.
PVA cannot stress enough the need for adequate funding for the
construction of these new cemeteries as well.
S. 1360
S. 1360, is a measure that would amend 38 U.S.C. Sec. 7105, to
clarify the requirements for notices of disagreement for appellate
review of VA activities. This measure is in response to a U.S. Court of
Appeals for the Federal Circuit's ruling that upheld the VA's
regulation that is beyond the scope of statutory requirements. PVA
strongly supports S. 1360.
PVA appreciates the opportunity to testify before the Committee
today on this important legislation. As new veterans return from the
front lines of combat in Iraq, we must continue to work to expand the
benefits available. We look forward to working with this Committee in
the future to continue to provide for our nation's veterans.
__________
Prepared Statement of Dennis M. Cullinan, Director, National
Legislative Service, Veterans of Foreign Wars
Mr. Chairman and Members of the Committee: On behalf of the 2.6
million members of the Veterans of Foreign Wars of the United States
(VFW) and our Ladies Auxiliary, I would like to thank you for the
opportunity to offer our views on the following legislation under
discussion.
The VFW supports S. 257, the Veterans Benefits and Pensions
Protection Act of 2003, introduced by Senator Nelson. This bill will
prohibit unscrupulous companies from taking advantage of veterans by
cheating them out of their compensation, pension, or dependency and
indemnity compensation in return for services, securities, or other
agreements. Currently, veterans may not directly assign their benefits
to a third party. These companies, however, have found a loophole that
they unjustly use to defraud unsuspecting veterans wherein they offer a
large lump sum payment in return for the veteran's benefits for a
period of time. Unfortunately for the veteran, they receive pennies on
the dollar for their benefits and compensation. This legislation would
close the loophole and prevent these companies from taking advantage of
our nation's veterans.
We also applaud the bill's outreach provisions. Informing veterans
and their families of the deceitful practices these companies and
individuals use can only lessen the chances that these companies will
continue to take advantage of our veterans.
The VFW lends its support to S. 517, the Francis W. Agnes Prisoner
of War Benefits Act of 2003, introduced by Senator Murray.
We especially applaud Section 2(a), which would repeal of the 30-
day minimum period of internment prior to presumption of service
connection for certain listed diseases for purposes of payment of
veterans' disability compensation, Section 2(b) repeal of requirement
for minimum period of internment for presumption of service connection
for dental care and Section 2 (c) which adds additional diseases
presumed to be service connected to Sec.1112 of title 38, United States
Code.
The VFW is pleased to offer our support for S. 1131, introduced by
Chairman Specter, legislation that would provide an annual cost-of-
living adjustment to compensation, clothing allowance, and dependency
and indemnity compensation (DIC) rates for veterans and their families.
It greatly benefits those who are least able to adjust their incomes to
keep pace with inflation and is vital to many of our veterans and
retirees, many of whom have limited or fixed incomes. VFW Resolution
621 urges the Congress to approve an annual cost-of-living adjustment.
The VFW supports all sections of S. 1133, introduced by Chairman
Specter, the Veterans Programs Improvement Act of 2003 with the
exception of Section 5, which would amend the clarification of payment
of compensation for alcohol or drug, related disability to preclude
service connection on a secondary basis. Physicians often consider
alcohol and drug related disabilities to be secondary conditions of
Post Traumatic Stress Disorder resulting from such situations as
internment as a POW or from severe combat war wounds such as an
amputation.
This, coupled with their primary condition, impairs their ability
to manage day-to-day activities, like holding a job. Accordingly, their
earning potential is limited. Disability compensation was intended to
compensate the veteran for that limited earning potential due to
injuries suffered while defending this nation. Further, restricting
veterans from receiving these benefits, which were granted in relation
to a primary service connected condition, directly opposes the
principles behind service connected disability compensation.
We strongly support S. 1188, introduced by Senator Murray, and
would like to thank the members of the committee for addressing this
legislation that would repeal the inequitable two-year limitation on
accrued benefits.
Last summer, the voting delegates to the VFW National Convention in
Nashville, Tennessee, approved Resolution 628, which calls for the
removal of the limitation on payment of accrued benefits. Under current
law, if a veteran dies while a claim for VA benefits is being
processed, the surviving spouse is entitled to no more than two years
of accrued benefits. With the time period for processing claims and
appeals often taking over two years, this law unjustly penalizes the
survivor. The surviving spouse or children should not be made to suffer
economically if a veteran dies while a claim for VA benefits is being
processed.
S. 1188 would ensure that the veterans' survivor would receive the
full amount of accrued benefits. Further we support the section that
would allow an eligible person to take up the veteran's claim if the
original beneficiary dies while the claim is still pending.
The VFW has long supported legislation that seeks to restore
benefits to certain military forces of the Philippine Commonwealth Army
and the Philippine Scouts and is pleased to support S. 1213, introduced
by Chairman Specter by request. This legislation will provide a number
of benefits that our Filipino veterans have earned through their
service fighting side by side with American soldiers in WWII.
It is our belief that since such forces were in active service of
the U.S. Armed Forces they should be entitled to equal benefits under
the programs administered by The Department of Veterans' Affairs. As
many Filipino veterans of WWII are departing life every day, now is the
right time to fulfill our obligation as a grateful nation and restore
their full-earned benefits.
Next, the VFW will discuss S. 1239, the Former Prisoners of War
Special Compensation Act of 2003, introduced by Senator Craig. We
support Section 2, which would establish a three-tiered special monthly
compensation to former Prisoners of War to be based upon length of
captivity as follows:
<bullet> Those detained 30-120 days would receive $150 per month
<bullet> Those detained 121-540 days would receive $300 per month
<bullet> Those detained 540 or more days would receive $450 per
month
We believe, however, that all POW's should be included in this
special monthly compensation. Furthermore, we acknowledge Senator
Murray's legislation mentioned earlier which would repeal the 30-day
minimum period of internment prior to presumption of service connection
for certain listed diseases for purposes of payment of veterans'
disability compensation. By eliminating the 30-day starting period in
the first tier, so that eligibility starts from the moment of capture
those POW's who have been held for shorter intervals but have certainly
suffered most of the same physical and psychological trauma as other
POW's will be included.
The VFW objects to Section 3, which would amend the clarification
of payment of compensation for alcohol- or drug-related disability to
preclude service connection on a secondary basis. We stand by our
statement in S. 1133 which contains the same language in Section 5.
The VFW is pleased to support Section 4 which would extend
outpatient dental care to all former POW's regardless of their length
of captivity.
The VFW is supportive of S. 1281, introduced by Ranking Member
Graham. This legislation would amend Title 38, United States Code, to
presume additional diseases of former prisoners of war to be service-
connected for compensation purposes, to enhance the Dose Reconstruction
Program of the Department of Defense, and to enhance and fund certain
epidemiological studies. The VFW believes that Section 3, Dose
Reconstruction Program of Department of Defense may be premature at
this time. Recently the Government Accounting Office published a study
on the Defense Departments' Reconstruction Program. We believe that the
Department of Veterans' Affairs should be given the opportunity to
review and respond to the findings in that report.
The VFW supports S. 249 legislation introduced by Senator Clinton,
which would amend Title 38, United States Code to provide that
remarriage of the surviving spouse of a deceased veteran after age 55
shall not result in termination of DIC.
No other federally-funded survivorship program including Civil
Service, Social Security and Congress's own program makes a distinction
between unmarried and remarried surviving spouses. DIC was created to
replace family income loss due to the service member or veteran's death
and to serve as reparation for his death. Our nation has made a promise
to our veterans that their families will be taken care of should they
die for our country. It is our duty to ensure that that promise is kept
and S. 249 is a good step towards that goal.
The VFW also supports S. 938, introduced by Senator Murray,
legislation to provide for the payment of DIC to the survivors of
former prisoners of war who died on or before September 30, 1999, under
the same eligibility conditions as apply to payment of DIC to the
survivors of former prisoners of war who die after that date.
The VFW will next address S. 1132, legislation introduced by
Chairman Specter by request. We will comment on each section in order:
SECTION 2. INCREASE IN RATES OF SURVIVORS' AND DEPENDENTS'
EDUCATIONAL ASSISTANCE
The VFW supports this section, as it would make the monthly benefit
amount under the Dependents' Educational Assistance Program (DEA) equal
to what veterans receive under the Montgomery GI Bill (MGIB).
SECTION 3. MODIFICATION OF DURATION OF EDUCATIONAL ASSISTANCE
VFW has no objection to this section that would allow eligible
dependents 36 months of educational benefit upon enactment of the
Veterans' Survivors Benefits Enhancements Act.
SECTION 4. ADDITIONAL DEPENDENCY AND INDEMNITY COMPENSATION
The VFW supports this section, which would provide the surviving
spouse with dependent children under the age of eighteen additional DIC
compensation.
SECTION 5. ELIGIBILITY OF SURVIVING SPOUSES WHO REMARRY FOR BURIAL IN
NATIONAL CEMETERIES
The VFW supports this section that would permit remarried surviving
spouses of veterans to be eligible for burial in a national cemetery.
Current law does not allow the surviving spouse to be buried in a
national cemetery if the surviving spouse's remarriage remained in
effect at the time of death.
In 1994, Public Law 103-446 revised the eligibility criteria by
allowing a surviving spouse of an eligible veteran, whose subsequent
marriage to a non-veteran had been terminated by death or divorce, to
be buried in a national cemetery. This legislation would be consistent
with that amendment and further acknowledges the importance of the
veteran's first marriage.
SECTION 6. BENEFIT FOR CHILDREN WITH SPINA-BIFIDA OF VETERANS OF
CERTAIN SERVICE IN KOREA
The VFW supports this section that would now equitably include the
eligible child of any veteran, as stipulated in Chapter 18 of Title 38,
United States Code (U.S.C.), who was exposed to herbicides used in
certain other locations during the veteran's active military service on
the same basis as veterans who are eligible under Chapter 11 of Title
38, U.S.C. That authority, however, does not extend to those claimants
under Chapter 18, Title 38, U.S.C., because their entitlement was not
established until after P.L. 102-4 was enacted. It is our understanding
that VA is in the process of issuing regulations under the authority of
the Agent Orange Act of 1991 (P.L. 102-4) that would extend a
presumption of exposure to veterans who served in other locations where
herbicides, primarily Agent Orange, were used. Such locations included
Panama, Johnson Island and the Demilitarized Zone between North and
South Korea. These regulations have not been issued at this time.
The VFW strongly supports both S. 1136, introduced by Chairman
Specter and S. 792, introduced by Senator Miller. The Service members
Civil Relief Act as titled both provide much needed enhancements to the
original Soldiers' and Sailors' Civil Relief Act of 1940. We applaud
those sections that will modernize, reinforce, and expand judicial and
administrative protection for our service members. Both also offer
increased protection for future financial transactions, legal
representation, protection against default judgments, professional
liability, and health and life insurance protections and guarantee
residency for military members. Equally important is that it will
shield professionals and small business owners called to active duty by
protecting their assets from personal trade and business debts.
The VFW supports S. 806, the Deployed Service Members Financial
Security & Education Act of 2003, introduced by Senator Nelson. This
legislation much like the Service members Civil Relief Act would
improve the benefits and protections provided for regular and reserve
members of the Armed Forces deployed or mobilized in the interests of
the national security of the United States.
We would like to specifically comment on Section 3 which would
provide our military personnel a leave of absence from educational
commitments and financial relief on student loans, tuition and fees
paid for the period covering their active duty. Since September 11,
many of our nations Air Force, Army, Coast Guard, Marine Corps, Navy
and Reserve Components have put their postsecondary education on hold
in order to serve their nation without hesitation. The VFW believes
that offering them this waiver gives those called and their families'
peace of mind and is the right thing to do.
The VFW supports S. 978, introduced by Senator Schumer, which would
amend Title 38, United States Code, to provide housing loan benefits
for the purchase of residential cooperative apartment units. We believe
that this legislation would offer those veterans living in large urban
areas a more affordable option for using their VA housing loan.
The VFW strongly supports S. 1124, introduced by Senator Mikulski,
the Veterans Burial Benefits Improvement Act of 2003. This legislation
provides a long overdue increase in veterans' burial benefits. When
first enacted in 1973, the amount of the benefit for a service-
connected veteran covered 72 percent of the average burial expense,
today, the current benefit of $2,000 covers just 39 percent of those
costs. The non-service-connected veteran received 22 percent or $300,
which is 6 percent of today's funeral expenses. This bill will provide
service connected veterans an increase to $3,713 and non-service-
connected veterans an increase to $1,135, which returns the cost of
burial benefits back to the same percentages offered in 1973 when the
program was initiated.
It will also allow for annual adjustment to cover inflation which
we believe will help continue to address the burial needs of those who
have and continue to make the ultimate sacrifice.
The VFW supports S. 1199, introduced by Senator Feingold. This bill
would improve the outreach activities of the Department of Veterans
Affairs. We especially applaud Sec. 563, which would offer grants to
States to help them in their efforts to improve, carry out, and
coordinate outreach and assist veterans when applying for any veterans-
related health or benefit programs.
The VFW strongly supports S. 1282, introduced by Ranking Member
Graham, legislation to require the Secretary of Veterans Affairs to
establish national cemeteries for geographically underserved
populations of veterans.
The mortality rate of our World War II and Korean veterans is
increasing rapidly. VA estimates that approximately 665,000 veterans
will die during this fiscal year--that is more than 1,800 per day and a
figure much higher than previously projected.
This legislation is a step in the right direction. It identifies
areas that are currently underserved while mandating NCA to construct
and open these cemeteries in a reasonable time frame. We would also
encourage Congress to meet the present and future requirements of the
National Cemetery Administration by providing adequate funding to
ensure that existing cemeteries are properly maintained and new
cemeteries are constructed to provide access to burial options for
veterans and their eligible family members.
The VFW is also pleased to support S. 1360, introduced by Ranking
Member Graham, legislation that would amend section 7105 of Title 38,
United States Code, to clarify the requirements for notices of
disagreement for appellate review of the Department of Veterans
Affairs. We believe this legislation strengthens Congress' original
intent as to what constitutes a notice of disagreement.
Mr. Chairman and Members of the Committee, this concludes the VFW's
testimony. We again thank you for including us in today's most
important discussion and I will be happy to answer any questions you
may have. Thank you.
Senator Nelson of Nebraska. If there is no objection, and
since I am the only one here and I am not going to the object--
--
[Laughter.]
Senator Nelson of Nebraska. ----then it will be the order
of the chair that the business, having been accomplished, I
order this hearing adjourned. Thank you very much.
[Whereupon, at 3:46 p.m., the hearing was adjourned.]
A P P E N D I X
The Prepared Statement of Hon. Daniel K. Inouye,
U.S. Senator from Hawaii
Mr. Chairman and Members of the Committee: At the outset, I wish to
commend you for holding this hearing on veterans' benefits measures
that are pending before the Committee. I appreciate the opportunity to
comment on S. 1213, the Filipino Veterans' Benefits Act of 2003, which
would provide both health care and certain compensation benefits to
Filipino veterans residing legally in the United States.
Many of you are aware of my continued support and advocacy on
behalf of the Filipino World War II veterans, and the importance of
addressing their plight. As an American, I believe the treatment of
Filipino World War II veterans is bleak and shameful. Throughout the
years, I have sponsored several measures to rectify the wrong committed
against these World War II veterans. I am grateful to the Committee for
the assistance and considerations given to my past initiatives
involving the Filipino veterans. While some strides have been made, I
believe more needs to be done to assist these veterans who are in their
twilight years. Of the 120,000 that served in the Commonwealth Army
during World War II, there are approximately 59,899 Filipino veterans
currently residing in the United States and the Philippines. According
to the Department of Veterans Affairs, the Filipino veteran population
is expected to decrease to approximately 20,000, or roughly one third
of the current population, by 2010.
I support the intent of S. 1213, to provide health, disability
compensation, and burial benefits to Filipino veterans legally residing
in the United States. However, I remain concerned that the benefits in
S. 1213 are restricted to only those veterans residing in the United
States. In my view, a distinction should not be made between those
veterans residing in the United States and those residing in the
Philippines.
As a result of a citizenship statute enacted by the Congress in
1990, some Filipino veterans who were able to travel came to the United
States to become United States citizens. At the same time, many other
Filipino World War II veterans were unable to travel to the United
States and take advantage of the naturalization benefit because of
their advanced age. The law was subsequently amended under the Fiscal
Year 1993 Departments of State, Justice, Commerce and the Judiciary
Appropriations Act (Public Law 102-395), to allow the naturalization
process for these veterans to occur in the Philippines. Since then, a
distinction has been made to provide benefits to only those Filipino
veterans residing in the United States. I believe it is unfair to make
a distinction between those residing in the United States versus those
residing in the Philippines. The Commonwealth Army of the Philippines
was called to serve with the United States Armed Forces in the Far East
during World War II under President Roosevelt's July 26, 1941, military
order. Together, these gallant men and women stood in harm's way with
our American soldiers to fight our common enemies during World War II.
Because all Filipino veterans stood in equal jeopardy during World
War II, I do not believe we should draw a distinction based on their
current residency in the U.S. or in the Philippines. All of them were
at equal risk, and so all should receive equal benefits. Accordingly, I
introduced S. 68, the Filipino Veterans' Benefits Improvements Act of
2003, which has health and disability compensation benefits similar to
those provided in S. 1213, but without limitations based on the
residency of the veterans. S. 68 includes an outpatient health care
component at the Manila Veterans Affairs Outpatient Clinic for veterans
residing in the Philippines. I strongly urge the Committee to
incorporate provisions of S. 68 into S. 1213, and not make a
distinction between those veterans residing in the United States and
those veterans residing in the Philippines.
Heroes should never be forgotten or ignored, so let us not turn our
backs on those who sacrificed so much. Many of the Filipinos who fought
so hard for our nation have been honored with American citizenship, but
let us now work to repay all of these brave men and women for their
sacrifices by providing them the veterans' benefits they deserve.
__________
The Prepared Statement of Hon. Jim Bunning,
U.S. Senator from Kentucky
Thank you, Mr. Chairman. I am glad to be here today to begin the
legislative process on improving benefits for our veterans. We have
many good ideas on the agenda today, but unfortunately we don't have
much money to spend under this year's Budget Resolution.
First and foremost, we need to make sure our veterans receive a
cost-of-living increase in the benefits they rely on. The Budget
Resolution provides us with funding to ensure our veterans' benefits
are increased by the same amount as Social Security benefits, and we
have a bill on today's agenda to do just that. I am a co-sponsor of the
Chairman's bill, S. 1131, which will ensure our veterans' benefits
maintain their value and buying power. I fully support that bill, and
hope that we can quickly hold a markup and get it to the Senate floor.
Another important bill before us today is S. 1132, the Veterans'
Survivors Benefits Enhancements Act. I am also a co-sponsor of this
bill, which increases educational benefits for widows and children of
our service members killed in action. Spouses and children of deceased
service members would be eligible for the same level of educational
benefits as the service member, and a new payment would be made for
spouses with a minor child. Finally, remarried widows would be allowed
to be buried in VA cemeteries with their first spouse. I realize this
bill needs PAYGO offsets, and I hope we can find some so we can have
this bill signed into law.
Finally, I want to mention my support for S. 1136, another bill
introduced by the Chairman that I am a co-sponsor of. That bill makes
many important changes to the current Soldiers' and Sailors' Civil
Relief Act of 1940, which protects our military men and women when we
send them away from their homes. We have not updated this law
substantially since the first Gulf War, and we need to modernize it to
ensure our men and women who are increasingly deployed to fight
terrorism around the globe can be sure they have legal protections in
the courts and against creditors while they are fighting to protect our
country.
Again, thank you Mr. Chairman. I look forward to hearing from the
witnesses.
__________
The Prepared Statement of Hon. Hillary Rodham Clinton,
U.S. Senator from New York
Let me begin by thanking the chairman of this committee, Senator
Specter, and the Ranking Member, Senator Graham, for allowing me the
opportunity to submit this statement for the record in support of S.
249. I would also like to acknowledge my partner in this effort,
Senator Kay Bailey Hutchison. She is an original co-sponsor of this
legislation and has been its steadfast advocate. I also want to thank
The Gold Star Wives of America, who brought this issue to the attention
of Senator Hutchison and myself. They have worked tirelessly for its
passage.
Mr. Chairman, at this time when our nation's armed forces are once
again in harm's way defending the fundamental values of our nation, it
is a fitting moment to remedy a long-standing penalty in the benefit
system for the widows and widowers of United States veterans who served
their country and paid the ultimate price.
As you know, Dependency and Indemnity Compensation (DIC) is the
benefit provided to surviving dependents of members of the Armed Forces
who died in active duty or of a service-connected cause. However, it is
the only federal annuity program that does not allow a surviving spouse
who receives compensation to remarry after the age of 55 and retain
these benefits. Social Security and the Railroad Retirement allow
remarriage after 60 without the loss of benefits, while Civil Service
Survivor Benefits and the Federal Employees Compensation Act allow
remarriage after 55. This inherently unfair policy essentially demands
that the surviving spouses of these heroes who find a mate later in
life make an extraordinarily difficult and unjust choice.
I firmly believe these courageous men and women should not have to
choose between the person they love and financial security. By
eliminating this marriage penalty, S. 249 will enable these widows and
widowers, who have limited earning power, to continue to receive the
assistance they need to make ends meet. Additionally, it will provide a
small measure of comfort to those individuals who have been forced to
make profound sacrifices in the name of their country.
I urge my colleagues on the committee to join us in supporting this
important and meaningful legislation. It is time for these inequities
to be corrected. Thank you.
__________
The Prepared Statement of Hon. Bob Filner,
U.S. Congressman from California
I would like to thank Chairman Specter and Ranking Member Graham
for the opportunity to speak about providing Filipino World War II
veterans, widows and dependent children living in the United States
with increased benefits, including VA health care for Filipino veterans
in the same manner as other U.S. veterans. I would also like to thank
Chairman Specter for holding this hearing on this important issue.
As many of you know, I have been working to restore these benefits
for many years. By passing legislation for Filipino World War II
veterans, we are providing a giant step forward in our quest to restore
the benefits for Filipino soldiers that were rescinded by the 1946
Congress, shortly after World War II ended.
You also may know that over 50 years ago, Filipino soldiers were
drafted into service by President Franklin D. Roosevelt. They fought
side-by-side with soldiers from the United States mainland, exhibiting
great courage at the epic battles of Bataan and Corrigidor. Their
participation was critical to the successful outcome of the war in the
Far East. It was quite a shock when Congress deprived many of these
veterans of the benefits that they were expecting.
Because these veterans are in their 70s and 80s, their most urgent
need is for health care. So I sincerely appreciate the actions of the
Chairman and of VA Secretary Anthony Principi to restore health care
benefits to them.
Regarding the increase in compensation in S. 1213 and in my own
bill in the House of Representatives, H.R. 664, quoting Secretary
Principi: ``Filipino beneficiaries residing in the United States face
living expenses comparable to United States veterans and limiting the
payment of these subsistence benefits to these individuals based on
policy considerations applicable to Philippine residents is not only
inequitable, but may result in undue hardships.'' Our actions today
will benefit in a substantial way a number of these brave veterans and
their survivors.
But, at a deeper level, these bills are also about restoring
dignity and honor to these proud veterans. Over fifty years of
injustice burns in the hearts of the Filipino World War II veterans and
in the hearts of their sons and daughters. This bill says that we will
remedy this historical injustice. We will make good on the promise of
America.
Recently, the House of Representatives Veterans' Affairs Committee
passed the provisions of my bill, H.R. 664 and they now move for action
on the Floor of the House. I commend the Chair and the Ranking Member
on their fine work in bringing S. 1213 to the Senate Veterans' Affairs
Committee for consideration.
__________
Prepared Statement of Robert D. Evans, Director of Govermental Affairs,
American Bar Association
Dear Mr. Chairman: I am writing you in connection with the hearings
your committee held July 10, 2003, on S. 792 and S. 1136, legislation
to restate, clarify and revise the Soldiers and Sailors Civil Relief
Act of 1940 (SSCRA). We ask that the ABA voice be heard and this letter
be made a part of the record of the hearings. The ABA strongly supports
enactment of this important legislation to modernize the SSCRA, which
has had only a few changes since it was passed in 1940.
We strongly recommend that the escalator provisions based on the
Basic Allowance for Housing (BAH) found in Section 301 of S. 1136 be
included in the final version of the legislation reported from
Committee. We believe the BAH escalator is a much more realistic
escalator than other escalators since it reflects rental costs where
service members are assigned rather than escalators based on a national
average like the CPI. Due to rising and widely varying housing costs, a
realistic escalator provision or index is vitally needed.
We also support the provisions in S. 1136 and in Section 3 of S.
806, the ``Deployed Service Members Financial Security and Education
Act of 2003,'' that would extend the six percent interest cap to
federally insured student loans held by deployed service members.
Coverage of these loans is now prohibited by the Higher Education Act
of 1965.
Following the terrorist attacks of September 11th, our nation has
increased its focus on enhancing homeland security. Since the military
action against Iraq was initiated, the number of service members and
reservists on active duty has increased. Because our homeland security
is at stake, it is imperative that these brave men and women devote
their full and undivided attention to their military duties. As a
result, we must provide security at home for those who risk their lives
everyday, in order to protect our nation. S. 792 and S. 1136 take
several important steps toward that end.
Congress has an important opportunity to modernize and clarify the
SSCRA, which has become outdated as a result of the passage of 63 years
and advancements in case law. The revision of the SSCRA is an urgent
issue that should be addressed as soon as possible. Legislative action
will show our service members that we value their sacrifices and that
we fully support them and their families.
Thank you for considering the views of the ABA on this important
legislation.
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