|
VA Watchdog Stuff...
cups, hats, shirts...
click on item to order
and support the site.
Be sure to get all four
VA Watchdog dot Org
RSS feeds --
Daily VA
News Flashes
House CVA
Veterans' News
Senate CVA
Veterans' News
VA Press
Releases
Download your
free copy of the
2008 VA benefits
handbook here...
|
Printer-Friendly Version
VETS' ATTORNEYS TESTIFY ABOUT NEW VETERANS'
BENEFITS LEGISLATION -- Richard Cohen, Executive
Director of the National Organization of
Veterans'
Advocates, before the Senate Vets' Committee.
Here's a look at legislation that could have a
great impact on veterans' benefits.
This is a great way to keep up-to-date on
legislation and to see how the attorneys of NOVA are fighting to help keep
the system working in the favor of all veterans.
For more about NOVA, use the VA Watchdog search
engine...click here...
http://www.yourvabenefits.org/sessearch.php?q=nova&op=and
Testimony here...
http://www.veterans.senate.gov/publi
c/index.cfm?pageid=16&release_id=11612&sub_release_id=11670&view=all
Testimony below:
-------------------------
STATEMENT OF
RICHARD PAUL COHEN
EXECUTIVE DIRECTOR
NATIONAL ORGANIZATION OF VETERANS' ADVOCATES, INC.
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
MAY 7, 2008
MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE:
Thank you for the opportunity to present the views of the National
Organization of Veterans' Advocates, Inc ("NOVA") on legislation pending
before the Committee.
NOVA is a not-for-profit § 501(c)(6) educational organization incorporated
in 1993 and dedicated to train and assist attorneys and non-attorney
practitioners who represent veterans, surviving spouses, and dependents
before the Department of Veterans Affairs ("VA"), the United States Court
of Appeals for Veterans Claims ("CAVC") and before the United States Court
of Appeals for the Federal Circuit ("Federal Circuit").
NOVA has written many amicus briefs on behalf of claimants before the CAVC
and Federal Circuit. The CAVC recognized NOVA's work on behalf of veterans
when it awarded the Hart T. Mankin Distinguished Service Award to NOVA in
2000.
The positions stated in this testimony have been approved by NOVA's Board
of Directors and represent the shared experiences of NOVA's members, as
well as my own fifteen-year experience representing claimants at all
stages of the veteran's benefits system from the VA Regional Offices to
the Board of Veterans' Appeals to the CAVC and the Federal Circuit.
Because of space and time constraints, and in the interests of
concentrating on those areas in which our members have the most expertise
and the most information to add to the dialogue, NOVA will limit its
comments to those bills which directly impact the operation of the
Veterans Benefits Administration and the CAVC.
S. 2090, S.2091 and S.2737
In an effort to decrease the time required to
prepare the record for appeals, the CAVC has implemented Miscellaneous
Order No.03-08, adopting new Rules 10 and 28.1. Pursuant to these new
rules, the VA will scan a veteran's entire VA claims file onto a disk to
create the "Record Before the Agency". Thus, the veteran's confidential
and sensitive information will be transformed into electronic data.
Because the CAVC is preparing for the electronic filing of records
(including personal data such as military service records, past and
present medical treatment records, and veterans' personal statements,
etc.), briefs and motions and for remote access to these same
electronically-filed documents, there is an increased risk of unauthorized
disclosure of confidential information unless precautions are taken. NOVA
supports S. 2090 because it seeks to protect and secure veterans' private
information in these electronically-filed documents, a serious concern to
NOVA members and veterans alike.
 Consistent
with our testimony before this Committee on November 7, 2007, NOVA
continues to support S. 2091. As NOVA predicted, the number of notices of
appeals filed with the CAVC continues to increase, with a record-setting
high of 4,643 appeals filed during FY 2007. Because this trend of
increased appellate filings will likely continue, NOVA support S. 2091,
which would authorize adding two more judges to the CAVC. These two new
judges will help shorten the time a veteran's appeal waits for a judge to
render a decision. NOVA applauds Congress' proactive steps in this area to
date and further suggests Congress consider implementing legislation that
would add two judges for every two thousand additional appeals filed.
NOVA also supports S. 2737 because it seeks to amend 38 U.S.C. §7252 (b),
which provides for limited review of the Schedule of Ratings for
disabilities to determine whether it complies with the provisions of
Chapter 11. Currently, the CAVC has no jurisdiction to review the Schedule
of Ratings, which is utilized by the VA to determine the appropriate
percentage of a veteran's disability and thus the amount of VA
compensation to be paid. This legislation (S. 2737) would correct this
problem, as highlighted by the case of Wanner v. Principi, 370 F.3d
1124,1129 (Fed. Cir. 2004), which held that the statutory scheme "excludes
from judicial review all content of the ratings schedule as well as the
Secretary's actions in adopting or revising that content"..
For example, because of the Court's limited jurisdiction, veterans are
precluded from arguing that the "acoustic trauma" requirements contained
in the diagnostic code for tinnitus is contrary to 38 U.S.C. § 1110. This
principle also has been applied in later cases, such as Jones v. Principi,
18 Vet. App. 248 (2004) (rejecting challenge to failure to provide for
separate ratings for multiple scars under diagnostic code 7804); and Byrd
v. Nicholson, 19 Vet App. 388 (2005) (rejecting challenge to the Schedule
of Rating regarding exclusion of periodontal disease). It is appropriate
to open the CAVC's jurisdiction to include consideration of well-supported
challenges to the VA's rating schedule.
S. 2309
NOVA supports the modification to 38 U.S.C. §
1154(b) which provides that a service
member who served in a combat zone will be considered to have been in
combat with the enemy. Establishing combat with the enemy can be a crucial
first step in proving exposure to combat stressors, which is essential for
receipt of VA service-connected benefits for medical conditions such as
post-traumatic stress disorder (PTSD). This legislation would eliminate
the incredible barriers facing veterans who were in combat, but whose
service records do not include such designations (e.g., Combat Infantry
Badge (CIB) or a purple heart) and who only knew their service buddies by
nicknames. These barriers frustrate a veteran's later attempts to
establish what occurred during his or her service in a combat zone.
To truly benefit service members who have difficulty proving that their
PTSD is related to their military service, NOVA suggests a different
modification of § 1154(b). If the intent is to significantly assist combat
veterans in receiving the benefits they earned, the current proposal will
not bring about its intended purpose because 38 U.S.C. § 1154(b) does not
provide a presumption that a veteran is entitled to benefits for a service
connected injury or disorder even for those veterans whom the VA concedes
engaged in combat with the enemy. Rather, §1154(b) has been interpreted as
providing only a presumption of service incurrence which still requires
proof of medical nexus, Dalton v. Nicholson, 21 Vet. App. 23 (2006). In
order to accomplish the intended result, § 1154 (b) needs the following
addition:
‘(3) In the case of a veteran who has been diagnosed with PTSD after
military service and who engaged in combat with the enemy as defined in
(2) above, a connection between PTSD and active military service shall be
presumed and may be rebutted only by clear and convincing evidence to the
contrary.'
S. 2573
Although NOVA recognizes Congress' benevolent
intent to encourage veterans to agree to treatment and rehabilitation
which may prove beneficial, NOVA opposes S.2573, "Veterans Mental Health
Treatment First Act" primarily because of its likely unintended
detrimental financial and treatment consequences. Section 1712C will
impose upon veterans the "Hopson's choice"of treatment and a stipend or
the standard VA treatment and compensation program. Veterans who have a
diagnosis of service-connected PTSD and whose service-connected mental
condition severely impairs their ability to earn a living will be forced
to chose between the treatment first path or the path to receive adequate
VA compensation.
Specifically, S. 2573 proposes that, a veteran who is married, and who has
a disability which would be rated at 100% would forfeit the right to VA
compensation of $ 2,699 per month in exchange for receiving only $2,000 at
the beginning of the program and $3,000 at the conclusion and $ 500 per
month during the program. Thus, over a year-long program, such a veteran
would forfeit $21,388, (i.e., $32,388 less $11,000), and the veteran's
family would be forced to live on $11,000 for that year. According to the
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition,
Text Revision ( "DSM-IV-TR") veterans with PTSD may habitually attempt to
avoid thoughts or conversations associated with the trauma (DSM-IV-TR,
C.(1)). They may also have markedly diminished interest or participation
in significant activities (DSM-IV-TR, C.(4)) and irritability or outbursts
or anger (DSM-IV-TR D.(2)). Thus, the medical community recognizes that
such veterans may reject all treatment if treatment is compelled.
Furthermore, "[m]ost empirical studies or trials
conducted to date show no relationship between compensation seeking, PTSD
disability status, and treatment outcomes." IOM (Institute of Medicine)
and NRC (National Research Council). 2007. PTSD Compensation and Military
Service. Washington, DC: The National Academies Press, pages 183-184.
Finally, this bill would create two classes of
veterans and two programs of treatment: (1) the treatment first veterans;
and (2) the simultaneous benefits and treatment veterans. It follows that
all veterans would not be in the same treatment plans for the same
conditions and that care givers will come, however subconsciously, to
stigmatize the non- treatment first veterans.
S.2617
NOVA supports the Cost of Living Adjustments
provided in S.2617 but, additionally, supports the across the board
immediate 25% increase for loss of quality of life which was recommended
by the Veterans' Disability Benefits Commission ("VDBC") in its October
2007 report "Honoring The Call To Duty: Veterans' Disability Benefits In
The 21ST Century."
S. 2674
NOVA generally supports Title II of America's
Wounded Warrior Act, but with reservations concerning that portion of Sec.
201, i.e., (b)(6) and (c)(2)(F) and Sec. 203, which suggest a study of
whether disability compensation may be used as an incentive to encourage
veterans to undergo appropriate treatment and vocational rehabilitation.
This is especially inappropriate if the veteran's disability compensation
is contingent on the veteran getting treatment at a VA facility. Where and
when a veteran seeks treatment is his/her personal choice. Veterans do not
always seek treatment at a VA facility-especially if they have the means
(i.e. disability compensation) to go to a private doctor. As explained
above, with respect to S. 2573, NOVA is concerned that the implementation
of such a program would have the unintended consequence of discouraging
veterans from applying for benefits which they deserve.
NOVA also opposes (c)(2)(E) which would create different classes of
veterans according to their age at the time they file their claim. Any
attempt to revise the existing payment scale based on the veteran's age at
the date of the initial claim conflicts with the VDBC's conclusion that it
"does not concur with the recommendation" to investigate whether to
including factors such as the veteran's age would improve the ability of
the rating schedule to predict earnings losses. (VDBC 235.) A review of
VDBC's tables 7.2, 7.3 (VDBC 226,227) reflects the conclusion that
veterans who enter the VA disability system up to age 55 do not present a
problem in terms of income parity. Moreover, 54.6% of veterans receiving
initial VA disability awards are 55 years old or younger. (VDBC 101, Table
5.2.) Indeed, NOVA agrees with the VDBC's position that it "does not
support a policy of considering age or other vocational factors in
individual rating determinations" and does not believe that including
factors such as age
would improve the ability of the rating schedule to protect earnings
losses because such determinations are unjustified and unfair to our WWII,
Korean War and Vietnam veterans and to officers who are generally older
than the enlisted troops under their supervision. (VDBC 235.)
Because Sec. 1205 appears to represent an unwarranted renunciation of the
concepts of protected and permanent and total ratings (38 U.S.C. § 110; 38
U.S.C. § 1521; 38 C.F.R. § 3.951(b); 38 C.F. R. § 3.343(a)), NOVA opposes
the broad discretion for periodic reevaluation and adjustment of
disability evaluations contained in that section. Moreover, as found by
the Institute of Medicine with respect to ratings for PTSD, "It is not
appropriate to require across-the-board periodic reexaminations for
veterans with PTSD service-connected disability." IOM and NRC 2007. "PTSD
Compensation and Military Service". The National Academies Press, p. 195.
S. 2825
NOVA supports S. 2825 because it seeks to add
language to 38 U.S.C. § 1155, which would establish a minimum rating of
10% for a veteran who requires continuous medication or the use of an
adaptive device is equitable. NOVA supports this proposed legislation
because it is equitable and takes into account the real world limitations
and restrictions imposed by chronic impairments which have previously
slipped through the cracks and been non-compensable.
The "Veterans' Benefits Enhancement Act of 2008"
The "Veterans' Benefits Enhancement Act of 2008",
includes at Sec. 201 a modification of 38 U.S.C. by inserting §501A which
would grant the VA the authority, in the exercise of its own unsupervised
discretion, to stay the adjudication of claims whenever it determines the
stay to be "necessary.". NOVA opposes S. 201 modifications as an
unjustified intrusion into the jurisdiction of the CAVC by divesting the
CAVC of its inherent jurisdiction to grant or deny such stays. Moreover,
granting the VA the power to stay claims adjudication is dangerous because
in actual terms, it would give the VA unfettered power to stall the
development and consideration of hundreds of thousands of veterans' claims
for benefits whenever the VA deems it necessary. Based on the vast
experience of NOVA's members in assisting veterans with their appeals, it
is NOVA's position that the VA cannot be trusted to exercise its use of
this powerful tool in the best interest of our nation' s veterans.
NOVA's primary concern regarding this issue is highlighted by the VA's
history of opposition to adjudicating the claims of critically-ill Navy
veterans for benefits based upon illnesses caused by Agent Orange
exposure. Thus, in the case of Ribaudo v. Nicholson, 21 Vet. App. 137
(2007), after the Court held unlawful and rescinded the unilateral stay
instigated by the VA Secretary and imposed by the Chairman of the Board of
Veterans' Appeals on the processing of appeals, the VA reluctantly
resorted to the courts to obtain a stay of its obligation to continue
adjudicating claims under the principles set forth in Hass v. Nicholson,
20 Vet. App. 257 (2006), appeal docketed, No. 07-7036 (Fed. Cir. Nov. 8,
2006). In Ribaudo, the VA asserted that the harm to the VA of continuing
the adjudication of claims outweighed the harm to veterans ill with
cancers resulting from their exposure to Agent Orange during Navy service
off the coast of Vietnam. Another example of the VA utilizing procedural
bureaucracy to the detriment of veterans was criticized by the United
States Court of Appeals for the Ninth Circuit which observed that the
performance of the VA regarding the administration of benefits for
diseases caused by Agent Orange exposure has contributed substantially to
our sense of national shame, because the VA continues to resist payment of
benefits through obstructionist bureaucratic opposition, Nehmer v. U.S.
Dep. Of V.A. 494 F.3d 846, 849, 865 (9th Cir. 2007).
Similarly, NOVA is concerned about the effect of Sec. 202 which would
amend 38 U.S.C. § 7107(a)(1) to allow an earlier BVA docket number to be
ignored if "the earlier case has been stayed" or if "the earlier case has
been delayed for any reason".. There is no justification for departing
from time-honored procedures of docket management to provide the BVA with
complete discretion to juggle the docket and, without the possibility of
challenge, to stay or delay a veteran's appeal and cause appeals to
languish for many years longer than the usual 2 year waiting period until
the veteran dies.
-------------------------
posted by Larry
Scott
Founder and Editor
VA Watchdog dot Org
Don't forget to read all of today's VA
News Flashes (click here)
Click here to make VA Watchdog dot Org your homepage
email Larry
(go
back to VA Watchdog dot Org Home Page) |
Military
Medical Malpractice
Legal
Network
VA Watchdog Stuff...
cups, hats, shirts...
click on item to order
and support the site.
|
