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Pending Veterans Benefits Legislation

 

Chairman Bost, Ranking Member Esty and distinguished members of the Subcommittee on Disability Assistance and Memorial Affairs, on behalf of National Commander Denise H. Rohan and The American Legion, the country’s largest patriotic wartime service organization for veterans, comprising over 2 million members and serving every man and woman who has worn the uniform for this country, we thank you for the opportunity to testify on behalf of The American Legion’s positions on the following pending legislation.

H.R. 1721

To direct the Secretary of Veterans Affairs to designate at least one city in the United States each year as an ‘‘American World War II City’’, and for other purposes.

The provisions in this bill fall outside the scope of established resolutions of The American Legion. As a large, grassroots organization, The American Legion takes positions on legislation based on resolutions passed by the membership. With no resolutions addressing the provisions of the legislation, The American Legion is researching the material and working with our membership to determine the course of action that best serves veterans.

The American Legion has no position on H.R. 1721.

H.R. 1900: National Veterans Memorial and Museum Act

To designate the Veterans Memorial and Museum in Columbus, Ohio, as the National Veterans Memorial and Museum, and for other purposes.

One of the founding principles of The American Legion is: “To preserve the memories and incidents of our associations in the great wars.” The Veterans Memorial and Museum in the State of Ohio is currently conducting a campaign to raise money to construct a memorial and museum in Columbus, Ohio in honor of all military veterans. They have currently raised in excess of $75 million for the design and construction. Construction of the 50,000-square-foot facility started in 2015, and completion is planned for 2018.

This legislation would designate the Veterans Memorial and Museum as the National Veterans Memorial and Museum (NVMM). The NVMM’s purpose is to honor the contributions of our nation’s veterans, connect civilians and veterans, inspire communities and citizens to honor service in the military, and educate our youth on the value of serving our nation. Senator John Glenn served as the founding chairman of the Veterans Memorial and Museum Advisory Committee and it was his vision to construct this memorial and museum in the heartland of America so more citizens would be able to visit in order to honor those who served this nation in uniform.

 

Through Resolution No. 88: National Veterans Memorial and Museum, The American Legion, the nation’s largest wartime veterans service organization, is in favor of honoring veterans with such a memorial.[1]

The American Legion supports H.R. 1900.

H.R. 3122: Veterans Care Financial Protection Act of 2017

To protect individuals who are eligible for increased pension under laws administered by the Secretary of Veterans Affairs on the basis of need of regular aid and attendance from dishonest, predatory, or otherwise unlawful practices, and for other purposes.

A growing number of elderly veterans depend on the assistance of caregivers, family, and friends to complete basic daily activities. The Department of Veterans Affairs (VA) assists any low-income veteran that is not able to care for themselves by assigning them Aid and Attendance benefits (A&A). A&A benefits help pay for assisted living or in-home personal care for veterans who qualify for a VA pension and are housebound or require the aid and attendance of another person. Unfortunately, scam artists have started targeting veterans by charging them fees to obtain A&A benefits even though the application process is free.

Unfortunately, we are seeing an increase in bad actors exploiting assistance programs to veterans and many times these bad actors target elderly veterans because of their unfamiliarity with the VA bureaucracy. Some additional examples of how these scam artists target veterans include:

·         Charging a fee with promises to expedite the process, when there is no mechanism for expedited approval;

·         Although the veterans net worth is too high to qualify for the benefits, veterans are offered “help” to qualify.  Bad actors take control of the veteran’s assets and move these assets into an irrevocable trust or an annuity. Many times, these elderly veterans cannot access their funds for many years and are disqualified from other assistance, like Medicaid; and

·         Some retirement homes recruit veterans with the promise that the veteran will receive the A&A benefit to cover the cost of the nursing home.  If they are denied A&A benefits, the veteran is then responsible for paying out of pocket.

This legislation is asking for two provisions to protect veterans that might have been susceptible to these financial scams. This legislation would require the VA Secretary to work with other federal, state and outside experts to develop and implement state and federal standards that protect veterans from dishonest, predatory, or otherwise unlawful practices. Additionally, this legislation would direct the U.S. Government Accountability Office (GAO) to conduct a study 18 months after the enactment of the law to determine the extent to which the states, the VA, and any other federal agency have implemented the standards developed. If passed this legislation would help protect veterans from financial scams, especially those most at risk.

Through Resolution No. 57: Prevent Exploitation of Veterans and Family Members Applying for Benefits, to Include Aid and Attendance, The American Legion supports any legislative proposal that criminalizes the practice of charging veterans for claims assistance and creating a for-profit business based on these practices.[2]

The American Legion supports H.R. 3122.

H.R. 3656

To amend title 38, United States Code, to provide for a consistent eligibility date for provision of Department of Veterans Affairs memorial headstones and markers for eligible spouses and dependent children of veterans whose remains are unavailable.

The Department of Veterans Affairs (VA) provides a memorial headstone or marker for eligible individuals or groups deceased while on active duty or veterans whose remains are not recovered or identified or are buried at sea, donated to science, or whose cremated remains have been scattered. The memorial headstone or marker may be placed in a private, military, or veteran cemetery (national or state).

Memorial headstones and markers may also be furnished in national, military post/base or state veterans cemeteries to eligible spouses and dependent children whose remains are unavailable for interment, whether or not they predecease the eligible veteran.

The current applicability date for spouses is after November 11, 1998 and dependent children after December 22, 2006. Congress first established eligibility for spouses in PL 105-368 section 401(a), which passed on November 11, 1998. Congress then extended eligibility for dependent children in 2006 as part of P.L. 109-461 section 401 on December 22, 2006. Since P.L. 109-461 did not extend eligibility retroactively, only dependent children whose remains are unavailable after December 22, 2006, are eligible for a marker.

H.R. 3656 would make the eligibility date for dependent children the same as the date for spouses. VA requested this legislative change in their latest budget submission and costs associated with this proposal are expected to be insignificant. Furthermore, this proposed change would simplify the process and reduce confusion for veterans and their families.

The American Legion supports H.R. 3656.

H.R. 3657

To amend title 38, United States Code, to authorize the Secretary of Veterans Affairs to provide headstones and markers for the graves of spouses and children of veterans who are buried in tribal cemeteries.

The Department of Veterans Affairs (VA) currently provides, on request, a headstone or marker for eligible spouses or dependent children who are buried or interned in a national, military post/base or state veterans cemeteries. Spouses and dependents are not eligible for a government-furnished headstone or marker if they are buried in a private or tribal cemetery.

H.R. 3657 would ensure that veterans’ spouses and children who are buried at tribal veterans cemeteries are provided government-furnished headstones or markers, the same as family members buried at national and state veterans cemeteries.

Native American veterans have earned and deserve the same rights, privileges and honor that other veterans receive. The American Legion Resolution No. 146 calls on Congress to ensure that veterans benefits are provided equitably and consistently for all.[3] This legislation, by correcting an inequity, is consistent with the intent of this resolution.

The American Legion supports H.R. 3657.

Draft Bill: Veterans Fair Debt Notice Act of 2017

To direct the Secretary of Veterans Affairs to require the use of certified mail and plain language in certain debt collection activities.

The Department of Veteran Affairs (VA) reported issuing improper payment to beneficiaries totaling approximately $5.5 billion during Fiscal Year 2016. If the beneficiaries were not entitled to the payment, a debt would be created and sent to the Department of Veterans Affairs Debt Management Center (DMC) for collection action. In an attempt to collect the debt, DMC will begin communicating with the beneficiary through written correspondence. If the beneficiary fails to respond to the notifications and is actively receiving benefits, VA will garnish any future benefit to recover the debt.  If the beneficiary is not actively receiving VA benefits, VA will refer the debt to the Treasury Department for collection.

The American Legion has heard from many beneficiaries that they never received any correspondence letters from VA. Many times, the address on file is not correct. Beneficiaries move and forget to update their address with VA. Additionally, many beneficiaries do update their address with the Veterans Health Administration (VHA) but because VHA and the Veterans Benefits Administration (VBA) have two systems that are not integrated, the updated address is not shared with VBA. Once a notification letter is mailed out by DMC, if they do not hear from the beneficiary within 60 days they will take action to garnish the benefit or transfer the debt to the Department of the Treasury. 

The American Legions is concerned that the DMC and VA do not verify that the beneficiary has received, understood, and is aware of how to remedy the collection process before the debt is referred to collections or benefits garnished. DMC’s lack of confirming that the notification has been received can cause further harm to the beneficiary and possibly place them in a financial burden. Failure to receive the notification can also cause the beneficiary to miss important deadlines such as requesting a waiver which must be made within 30 days of the first notification letter. Additionally, The American Legion is also concerned that the notification letters do not clearly state how the debt originated. 

This legislation, if enacted, would require the DMC to implement two initiatives in order to ensure that their notification letter is received and understood by the beneficiary. First, it would require that certified mail is used by the DMC when making a demand to a debtor. Second, it would require the DMC to clearly explain why the debtor owes money and all available options. If passed this legislation would ensure that written correspondence from the DMC to debtors is received and understood before taking action to garnish their benefit or forward the debt to the Treasury Department for collection action.

Through Resolution No. 377: Support for Veteran Quality of Life, The American Legion supports any legislative proposal that urges Congress and the Department of Veterans Affairs to enact legislation and programs within the VA that will enhance, promote, restore or preserve benefits for veterans and their dependents, including, but not limited to the following: timely access to quality VA health care; timely decisions on claims and receipt of earned benefits; and final resting places in national shrines and with lasting tributes that commemorate their service.[4]

The American Legion supports the Draft Bill titled: Veterans Fair Debt Notice Act of 2017.

Conclusion

As always, The American Legion thanks this subcommittee for the opportunity to elucidate the position of the over 2 million veteran members of this organization.  For additional information regarding this testimony, please contact Mr. Derek Fronabarger, Deputy Director of The American Legion’s Legislative Division at (202) 861-2700 or dfronabarger@legion.org.


[1] The American Legion Resolution No. 88 (2017): National Veterans Memorial and Museum

[3] Resolution No. 146 (2016): Veterans Receive Same Level of Benefits

[4] The American Legion Resolution No. 377 (2016): Support for Veteran Quality of Life

Source: Legion News

VBA’s Processing of Claims for Benefits Based on Post-Traumatic Stress Disorder

The Department of Veterans Affairs (VA) National Center for Post-Traumatic Stress Disorder (PTSD) defines PTSD as “a mental health problem that some people develop after experiencing or witnessing a life-threatening event, like combat, a natural disaster, a car accident, or sexual assault.[1]  The nature of serving in the armed forces is inherently dangerous; fear of hostility, combat operations, military sexual trauma (MST), and the dangers of training operations are only some of the causes that could eventually lead to a PTSD diagnosis.

PTSD affects each generation of veterans. The National Center for PTSD estimates 11-20 percent of veterans of Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF) suffer from the condition; an estimated 12 percent of Operation Desert Storm veterans have PTSD, and 15 percent of Vietnam War veterans also suffer from PTSD, according to the most recent VA study conducted in the late 1980s.  VA estimates that 30 percent of Vietnam War veterans have suffered from PTSD at some point during their life.[2]

Chairman Bost, Ranking Member Esty, and distinguished members of the Subcommittee on Disability Assistance and Memorial Affairs (DAMA), on behalf of National Commander Charles E. Schmidt and The American Legion; the country’s largest patriotic wartime service organization for veterans, comprising over 2 million members and serving every man and woman who has worn the uniform for this country; we thank you for the opportunity to testify regarding The American Legion’s position on “VBA’s Processing of Claims for Benefits Based on Post-Traumatic Stress Disorder”.

Background

In July 2010, VA took significant strides towards assisting veterans suffering from PTSD.  The liberalization of regulations relaxed the need for veterans to provide proof of a PTSD stressor; instead, veterans only needed to prove a “fear of hostility.”  Former VA Secretary Eric Shinseki recognized the importance of the liberalization and added, “This final regulation goes a long way to ensure that veterans receive the benefits and services they need.” The American Legion concurred with the former Secretary and lauded the efforts to streamline the access to benefits.

While The American Legion acknowledges advancements in this area, we also know there is significant room for improvement.  From development of PTSD claims, through compensation and pension (C&P) examinations, to ultimate adjudication, American Legion accredited representatives routinely see errors throughout the process.  Furthermore, if a veteran seeks service connection for a physical condition that manifested secondary or was aggravated by PTSD, veterans routinely are faced with a difficult journey.

 

Development of PTSD Claims

Improvement in the development of PTSD claims improved significantly following the July 2010 liberalization and has led to greater uniformity in relating PTSD to being deployed to hostile areas.  VA’s veterans service representatives are more likely to request C&P examinations, leading veterans to not receive VA disability compensation but gain access to VA healthcare.

The July 2010 liberalization was not the first instance of relaxing standards for PTSD.  VA relaxed the standard for gaining service connection for PTSD related to military sexual trauma (MST) in 2002. The frequency and impact of MST among servicemembers and veterans is intolerable.  VA reported in May 2015 that 25 percent of female veterans and one percent of male veterans experienced military sexual trauma when screen by a VA provider.[3]

Though VA relaxed MST-related PTSD claims, the implementation and effectiveness of that relaxation has not been enjoyed in the same manner as combat related PTSD claims.  Recent reports have highlighted the complications regarding reports associated with MST.  Command cover-up, lack of military or civilian law enforcement records, and lack of medical records are some of the myriad reasons why claimants are unsuccessful in gaining service connection. 

It is extremely frustrating to veterans that experience such degradation by fellow servicemembers and then receive a denial of benefits post-service.  American Legion service officers often submit lay statements from family members or friends that corroborate the incident, only to have the lay statements ignored or disputed.  PTSD caused by MST often can only be corroborated by family members or friends, and VA’s failure to regularly utilize these key documents is harmful to veterans.

C&P Examinations

The PTSD disability benefits questionnaire (DBQ) has created a uniform examination process that provides medical professionals with a list of symptoms and severity of symptoms experienced by the veteran.  DBQs have proven a useful way to providing a uniform method of providing the necessary questions and ensuring the appropriate information is transferred to the Veterans Benefits Administration (VBA) for establishing the level of service connection.  In theory, the veteran in Los Angeles should be receiving the same C&P examination for PTSD as the veteran in Atlanta.

Complaints pertaining to C&P examinations from veterans do not generally surround the DBQ; it surrounds the manner and method the examinations are conducted. Veterans have complained of C&P examinations that last 10-15 minutes and examiners that question the veracity of their symptoms or severity.  Additionally, examiners have detailed significant and severe symptoms; however, when evaluating the level of occupational and social impairment provide a response that do not align with the level of severity reported in the DBQ.

A recent issue has developed regarding C&P examinations provided by VBA contracted examinations.  Within the last six months, American Legion service officers have noted the quality of re-examinations for PTSD.  Despite having months of continual treatment by VA for the condition with records indicating the severity of the condition, some contracted examiners indicate the veteran’s symptoms are significantly less severe than indicated by VA treatment records.  Ironically post-C&P examination, VA treatment records continue to show the previously indicated more severe symptoms.

The impact of C&P exams are highly critical in determining service connection and the level of disability. Symptoms experienced and the severity of the symptoms are the foundation of establishing the level of disability within the VA Schedule for Rating Disabilities.  Due to this fact, it is absolutely essential that C&P examiners conduct a thorough review of records, to include lay statements, to ensure veterans’ conditions are properly evaluated.

Secondary Conditions Related to PTSD

The National Center for PTSD published an article by Kay Jankowski, Ph.D., regarding the impact of PTSD upon physical health. Dr. Jankowski acknowledged “a growing body of literature has found a link between exposure to trauma and poor physical health” and added research exists regarding the relationship between PTSD and cardiovascular, gastrointestinal, and musculoskeletal conditions.[4] 

Veterans are often diagnosed with PTSD at a relatively young age.  Years of suffering with the condition could cause or aggravate physical conditions, as suggested by Dr. Jankowski.  Unfortunately, veterans are often denied or not even provided the opportunity to have a C&P examination to determine the relationship between the physical condition and PTSD.

Sadly, some within VBA do not believe that a relationship exists, despite the fact that VA has published articles suggesting the existence of the relationship.  In 2015, The American Legion met with senior leaders at a VA regional office (VARO). The topic of the relationship between cardiovascular health and PTSD was discussed, as we noticed frequent remands from the Board of Veterans’ Appeals regarding this issue.  The veterans service center manager declared no relationship exists and added that her husband was unsuccessful at connecting the two conditions for his VA claim.  Perhaps heshould have enlisted the help of an American Legion service officer.

When further pressed on the issue, she demanded to produce a medical study discussing the relationship.  The American Legion immediately provided a study suggesting the relationship issued by VA’s Published International Literature on Traumatic Stress.  We realize that each case is different; we realize that medical professionals may have different opinions.  However, we believe a trained medical professional should make that determination and not a VBA employee.

PTSD and Total Disability Due to Individual Unemployability

An unfortunate impact of PTSD is that it can eventually lead to a veteran’s inability to gain and sustain meaningful employment.  This leads to the veteran qualifying for total disability due to individual unemployability (TDIU) benefits.Unfortunately, unless the veteran specifically applies for this benefit, TDIU may not be awarded.

Annually, The American Legion conducts VARO visits as part our Regional Office Action Review (ROAR) program. In March 2016, The American Legion visited the Cleveland VARO to review recently adjudicated appealed claims. 

During the visit, we reviewed a claim of a Marine veteran that filed to increase his 50 percent PTSD disability rating in March 2010 and stated he could not work due to PTSD.  His wife provided a letter in May 2010 indicating the veteran’s inability to work due to PTSD and documentation from the Social Security Administration (SSA) indicating he is unable to work due to a psychiatric disorder.  Eleven months later, the veteran received a rating decision stating, “Social Security records dated February 3, 2010 noted your isolation and irritability. The examiner on your Mental Residual Functional Capacity Assessment provided that you are unable to work in proximity to other people due to extensive social discomfort and you are unable to complete work behaviors in a typical work environment due to your psychiatric conditions.  You are currently receiving Social Security for your affective disorders and your anxiety related disorders.”

In March 2012, the veteran filed a notice of disagreement, and nearly four years later, in February 2016, he received a decision increasing his disability rating for PTSD to 70 percent.  Unfortunately, the veteran still was not receiving TDIU; however, he continued to receive social security disability benefits.  

The American Legion reviewed the appeal in March 2016.  The veteran’s documentation strongly suggested consideration for TDIU existed, and we demanded VA to take action.  VA conducted a C&P examination in April 2016, and the examiner agreed with SSA and opined the veteran’s PTSD caused unemployability.  The American Legion’s questions combined with a positive opinion indicating the veteran’s PTSD caused unemployability led to an eventual grant of the benefit.  VA did retroactively award the benefit to May 2010 and received a retroactive award in excess of $96,000.

Had The American Legion’s ROAR team not visited this location and reviewed the appeal, this veteran may have never received TDIU, and if he did, it is uncertain if he would have received the same effective date.  This case serves as an example of the need for VBA employees and C&P examiners to perform a careful and thorough review of the record.  This veteran should not have had to wait four years to have an appeal adjudicated, and he certainly should not have had to wait six years for the proper awarding of his TDIU benefits. 

Evaluation Builder Tool

The creation and implementation of VBA’s Evaluation Builder tool has also led to improper denials or an under evaluation of claims.  VBA created the tool to develop uniform decisions; a rater at one VARO should have similar decisions as a rater at a different VARO.  Unfortunately, nearly whole dependence on the tool has created missed opportunities.

In 2017, The American Legion has asked VBA employees during ROAR visits about the tool.  Raters have the capability to disregard the tool’s suggestion; however, the local quality review team is notified, and many fear reprisal if they continually challenge the tool’s suggestion.    Quite simply, they do not want to a label of being a difficult employee. 

No concern would exist if the tool were 100 percent effective.  The American Legion understands that not all information receives consideration in the tool.  Lay statements, continuity of symptoms, or outside private medical evidence may not be considered and significantly influence a decision.

The American Legion believes the Evaluation Builder tool could greatly assist raters.  However, there requires flexibility.  Raters should be encouraged to challenge the tool and not fear reprisal.  In fact, challenges to the tool’s system would lead to better development of the product; VA should welcome this input.  Finally, the decisions should not solely reflect the suggestion of the tool; it is essential consideration of all pertinent records occur.

Conclusion:

The American Legion has long recognized the impact of PTSD within the veterans’ community.  We have worked with those that have been affected by horrors of combat and MST.  During our 96th National Convention in 2014, we resolved to, “Urge the VA to review military personnel files in all MST claims and apply reduced criteria to MST-related PTSD to match that of combat-related PTSD”.[5] VA has taken significant strides in improving its recognition of veterans deployed to hostile lands; however, VA still needs improvement in MST-related PTSD claims, C&P examinations, and evaluations of disabilities. The American Legion thanks this committee for their diligence and commitment to our nation’s veterans on this topic.  Questions concerning this testimony can be directed to Derek Fronabarger Deputy Director in The American Legion Legislative Division (202) 861-2700 or at dfronabarger@legion.org.


[5] American Legion Resolution No. 67: (2014): Military Sexual Trauma

Source: Legion News