Testimony on Various Veterans Issues















H.R. 2383, H.R. 2243, H.R. 2388, and H.R. 2470 


WASHINGTON, DC                                                                                                 July 20, 2011 


On behalf of the 2.1 million members of the Veterans of Foreign Wars of the United States and our Auxiliaries, the VFW would like to thank this committee for the opportunity to present its views on these bills. 

H.R. 2383, Modernizing Notice to Claimants Act 

H.R. 2383 seeks to do four things:  Allow VA to communicate with claimants electronically; provide the Veterans Claims Assistance Act (VCAA) notice, or duty to assist, to veterans during the application period; stop sending duty to assist notices for subsequent claims if available evidence substantiates said claim; and allow VA to rate a claim without duty to assist notifications if evidence available can award the benefit sought by the veteran. All of these provisions are intended to reduce the average days awaiting development. Currently, the average period of time is more than 45 days, meaning veterans’ claims sit idle, waiting to be developed, while duty to assist notifications are mailed, received and responded to. 

The VFW agrees that to reduce the backlog and to make the average length of claim meet the Secretary’s 125-day mandate steps must be taken to reduce delays that occur due to statutory requirements when a viable alternative is available. However, the VFW insists that any changes made must not have a negative effect on veterans.  

The VFW views the idea of allowing VA to communicate with veterans electronically positively. Many veterans conduct business via email and web-based portals. Providing this choice will grant veterans the option to use this efficient form of communication. This form of communication will also be beneficial as VA moves forward with its electronic-based filing system. However, this new method of communication may not be considered the most expeditious means to the veteran; therefore, it must be requested by the veteran and not mandated by VA. 

Informing veterans of VA’s duty to assist at the application phase of the claims process does two things:  It reduces the time it takes for a claim to go to development, and it allows veterans to be proactive in providing evidence to VA to substantiate their disability claim. The VFW has three chief concerns with placing the duty to assist notice with the application. First, depending on how the duty to assist notice is presented to veterans, the burden to gather private medical records could be shifted to the veteran. Although the statutory burden would still rest on VA, veterans could infer that the burden rests on them. Any changes to the duty to assist notification must be in plain, easy-to-understand language that informs the veteran what type of evidence is needed to substantiate claims and that the ultimate burden to collect medical evidence belongs to VA.  

Second, the VFW wants to ensure that any changes to when the duty to assist notice is provided will not have a negative effect on the veteran’s effective date of the claim. Currently, when VA receives a complete or substantially complete claim application, VA stamps it with an effective date, marking when the veteran’s compensation or pension date begins. Under this proposal, veterans may spend weeks and months collecting their medical evidence based on VA’s encouragement to veterans to collect their own records. This will negatively affect veterans by making their effective date later. Any changes to when the duty to assist is provided must include a clear, easy-to-follow process in the instructions of the VA Form 21-526 to initiate an informal claim, providing an immediate effective date.  

Third, the VFW is concerned that by placing the duty to assist notification at the beginning of the process, the veteran will not be notified of VA’s receipt of the claim. By virtue of the current process, veterans are notified by VA with the duty to assist letter. Now veterans will be waiting and wondering if VA has received their claim and started processing. The VFW suggests that if the provisions moving duty to assist to the application phase are implemented, a notification of receipt must be sent to the veteran. The VFW agrees that VA does not need to send a second duty to assist notification for subsequent claims when the evidence necessary to substantiate the claim is sufficient to rate. 

The VFW’s last point of contention is in regard to Section 2, paragraph 5 of the bill. Under current regulation and based on legal precedent, VA must assume that the veteran is seeking the maximum benefit allowed for the disability. To ensure precedent established by the Court of Veterans Appeals applies to new regulation regarding duty to assist, the VFW suggests that this bill language be amended to read “this section shall not apply to any claim or issue where the Secretary may award the benefit sought based on the evidence of record when the maximum benefit allowed can be awarded.” 

The VFW must reiterate that veterans can neither have burden shifted to them, nor shall any changes in regulation harm a veteran’s ability to receive the most complete and accurate claim possible. The VCAA was developed to protect veterans and any changes to this act to expedite the claims process must not come at the expense of veterans. For the VFW to support any changes to current law, our above concerns must first be satisfied.    

HR 2243, Veterans Employment Promotion Act  

The VFW supports the intent of this bill, insofar as the Department of Labor must make a concerted effort to ensure that federal contractors and subcontractors are complying with affirmative action mandates to employ veterans within their companies. However, the VFW believes that steps must also be taken by DOL to ensure that contractors are meeting their obligations through the current VETS-100 filing system, and hold contractors responsible for failure to comply.  

Though the VETS-100 form is mandatory for contractors to conduct business with the federal government, auditing procedures currently are not in place for DOL to verify outreach efforts and veteran employment figures reported by federal contractors. The VFW welcomes working with the committee to develop further plans to hold contractors accountable for their reports through the VETS-100 system to ensure that veterans actually have the opportunities they have earned and that federal contractors have reported.  

In the last year, DOL and other federal agencies have made a concerted effort to ensure that veterans have an opportunity to enter the federal workforce. The VFW believes that the DOL also has an obligation to ensure that those who do business with the federal government are held to a similar high standard.  

H.R. 2388, Access to Timely Information Act 

The VFW supports this legislation.  H.R. 2388 would expedite information requests from VA to the House and Senate VA Committees by clarifying in law that all requests are “covered” for purposes of administrative procedure on records maintained on individuals, and is a permitted disclosure under HIPAA regulations.  It also stipulates that the VA must send the Chairman of the committee any information that is also sent to another member of the committee when acting as a designee of the Chairman or Ranking Member.  We agree that it could assist the committee in their work, and we thank the Chairman for his efforts.   

H.R. 2470, Ensuring Servicemembers’ Electronic Records’ Viability Act 

The VFW supports this legislation, which would give the Department of Defense and the Department of Veterans Affairs a better chance of implementing an electronic health information system that meets current and future challenges by modifying the Department of Defense-Department of Veterans Affairs Interagency Program Office to redefine its mission.   

Working together, the two departments have achieved some success in creating a system that would make all personal health records bi-directional and fully electronic, with the ability to update and edit where needed.  However, much more work needs to be done before such a system would be fully operational and deployed for the use of all relevant employees and contractors. Each of these key features—bi-directional, fully electronic, and editing capability for both departments when needed—must be part of the final health and service record-keeping solution. It must also not be rendered ineffective by onerous and unnecessary privacy concerns.  Turf battles, institutional preference for existing solutions, and aversion to change have needlessly slowed down this process.  At this point, human behaviors and constructs are causing more problems than technical limitations, and we find that to be completely unacceptable.   

This bill will put DOD and VA in a position to make serious progress toward implementation of a state-of-the-art electronic health record.  By making it clear in that the joint office must be the single point of accountability and authority, and that it has the sole responsibility for finishing the job and sustaining the capability into the future, there can be no more obfuscating who is responsible for successes, and who is responsible for failures.  By ensuring that all reporting out of the office is done by an official not lower than a Deputy Secretary, this bill communicates the importance of the task at hand.  By obligating both organizations to have a dedicated line item for funding the joint office, this bill ensures that both departments are fully at the table, and are fully sharing responsibility.  We believe these are common-sense steps.  This problem is truly larger than either department and they must work together to bring forward a solution that meets the challenge and is a scalable platform that can more easily adapt to future innovations.    

Mr. Chairman, this concludes my statement.  I would be happy to answer any questions that you or the members of the Committee may have.  

Information Required by Rule XI2(g)(4) of the House of Representatives 

Pursuant to Rule XI2(g)(4) of the House of Representatives, the VFW has not received any federal grants in Fiscal Year 2011, nor has it received any federal grants in the two previous Fiscal Years.