Mr. Chairman, on behalf of Vietnam Veterans of America (VVA) National President John Rowan, I thank you for the opportunity to submit this statement and to appear here today before the Disability Compensation Commission. 

As you have often noted, Public Law 108–136 created the Commission and charged it with carrying out a comprehensive study to examine the appropriateness of the benefits provided under laws of the United States to veterans and their survivors to compensate and provide assistance for the effects of disabilities and deaths attributable to military service.  The evaluation and assessment must include the appropriateness of the purpose of the benefits, the appropriateness of their level and payment rates under the law and VA schedule for rating disabilities, and the appropriateness of the eligibility standards for compensation.  The Commission is also charged with studying any related issues the Commission determines are relevant to the purpose of developing its findings and recommendations. 

On July 22, 2005, Mr. Leonard Selfon, Director of Benefits for VVA, presented testimony to you that stressed another related issue that is of the utmost importance: namely, how well the current laws are administered and implemented insofar as there is an impact on the individual veteran who may have been lessened by virtue of military service.  As noted in that statement: 

While there can be no dispute that the current VA compensation and pension system suffers from a wide variety of problems, its basic premise and design, to attempt to restore as fully as possible an individual who has been adversely affected by the veteran’s military service to the physical, emotional and financial levels they would have enjoyed had they not suffered service-related disabilities, is sound.  To borrow from the Office of Management and Budget’s Federal Programs Assessment Rating Tool (PART), the veterans benefits program’s purpose is clear and addresses a specific problem or need; it is designed to have a significant impact in addressing that problem or need; and it has measurable long- and short-term goals.  As VVA sees it, the predominant problem with the system is in its execution.  Questions of timeliness, accuracy of decision-making, inadequate training and accountability of adjudication staff and management, as well as an outdated compensation methodology (i.e., the 1945 schedule of rating disabilities), pervade.

Consequently, our primary recommendation to the Commission is that the current VA compensation and pension system is fundamentally a good one; one that needs to be executed, updated, fine-tuned and funded properly.  Such being the case, there is no need to dismantle, revise or otherwise modify the essential elements of service-connected compensation, such as the definitions of who is a “veteran” for purposes of eligibility or “service-connected disability” for purposes of entitlement to benefits. 

As you carry out your review, the Commission must consult with the Institute of Medicine. It is worth noting that the National Academy of Sciences, Institute of Medicine panels have all made the same recommendation for the last three biennial reviews of the health of Vietnam veterans in their reports pursuant to the Agent Orange Act of 1991. When asked what they were lacking, the scientists noted that they could not do a complete and proper job without a longitudinal study of Vietnam veterans. VVA suggests that the same is true of any generation of veterans, particularly veterans who may have been exposed to harmful substances of any sort at any time during their military service. We suggest that this be a recommendation and line of inquiry by this panel. 

The purpose of this hearing today, as VVA understands it, is to express our comments as to the appropriateness of the research topics currently compiled and under consideration by the Commission, as supplied to us prior to this meeting. It is also our understanding that VVA will have an opportunity to comment on the substance of the research topics that are actually chosen by the Commissioners to pursue, at a later date.  

As we understand it, the specific research questions were chosen based on historical material, documents, and information provided by witnesses and interested parties.  The Commission proposes to study whatever questions are ultimately chosen to arrive at essential findings on the appropriateness of the benefits.  You have stated that “To facilitate gathering and reviewing of these key research questions, the Commission temporarily set up three subcommittees:  Compensation, Duty-Service Connection and Transition/Coordination/Readjustment.” 

VVA would first offer a general recommendation as to all of the proceedings of this Commission, which is that all proceedings be recorded, made available on your web page, and a transcript be made available for inspection by the public as well as by policy makers in the Executive branch and by Members of Congress and their staffs. This recording of proceedings and production of a public transcript should also apply to the meetings of any subcommittee of this body. This would make said proceedings not only available to the public and to ultimate policy makers, but to other Commissioners, allowing them to make an informed decision on the matters that will result in recommendations next year. How recommendations are arrived at, based on what information is often just as important to each Commissioner and others to weigh as the actual recommendation per se. We urge that the Commission undertake these steps immediately in order to assure all that these proceedings are fully transparent, and are being done in a manner that is fully fair and equitable, and in line with your mandate. While we do not doubt your good faith, erring on the side of transparency will help ensure that the perception of fairness and good faith matches the actual facts of the case. 

Secondly, VVA strongly urges that you create a fourth subcommittee to generate research topics as to the mechanism(s) available to actually implement any recommendations that this Commission may make, or that ultimately may be enacted into law. As stated above, VVA maintains that the basic assumptions and premises of the compensation system are sound. The problem is the way the laws are administered, and a rating schedule that needs to be updated. The Compensation & Pension system is, frankly, a mess, despite the fact that the vast majority of the people in the VA who do the work are good, hard-working people, and would do a good job if they were properly trained, supervised, allowed to do their job if they had the right tools and adequate time – and all (particularly managers at every level) were properly held accountable for actual performance.  

This Commission has and will continue to work very hard to do the best job you can.  You can make all the recommendations in the world that are conceptually sound, but given the current mechanism for implementing them, your recommendations would be made into a mash in short order. The overall questions that this fourth subcommittee should be addressing are these: Is it the fundamental concept, or is it that the current system has been so badly run for so long that it has distorted the original concept in the actual practice?  Is it the intent of the Commission to make the compensation system more fair and equitable to the individual citizen who has served his/her country honorably, or is it to limit benefits with an eye toward cutting overall costs? While the Chairman has tried to reassure all concerned on this last question that the intent of the Commission is not just to cut benefits and reduce costs, the shape of the projected questions that have been proposed as a basis for inquiry, research, and study would seem to suggest otherwise. 

Some of the key questions that this fourth subcommittee should be asking and researching may be: 

A)    Why is there no setting of precedents of cases decided, and a readily accessible database to research them? 

B)     Why is there no competency-based testing of adjudicators and others who are key to making the system work properly? 

C)    Why does the VA not ensure that all locations train for and utilize the VA’s own Best Practice manuals, such as the one for Post-Traumatic Stress Disorder, and the many directives and memoranda that are sent out from time to time? 

D)    When it is clear that VA personnel are not abiding by the law that requires “the duty to assist” veterans in securing key information to prove their claims, or is continually and repeatedly adjudicating cases in clear violation of directives, why are there no meaningful repercussions for any of the managers involved? 

These suggested questions are but a few that come to mind if one starts to take a hard look at the system that actually administers the law. VVA refuses to accept that the Veterans Benefits Administration (VBA) cannot be made to work fairly, equitably, and accurately in the speedy adjudication of claims. It can, but it will take a change in the corporate culture, and a great deal more accountability on the part of all, including all of us who assist veterans to prepare their claims. (One interesting finding in the Inspector General Report of May 19, 2005, was that veterans who have proper representation by a veterans’ service organization have better representation, and implicitly, fewer veterans with claims that will need to be re-adjudicated). 

VVA is also given to understand that once the specific research issues have been chosen that will be more fully addressed by the Commission, you and your staff will proceed to do a detailed study of these research questions to determine whether the current conceptual design is appropriate, or whether more appropriate alternatives exist. VVA would suggest that if there is not significant consideration of the “null” hypothesis that there is no basic flaw in the concept of the current system, but rather what is needed is a complete re-thinking and overhaul of how the law is administered, one that is in full conformance with the Government Performance & Results Act of 1993 (GPRA), with full and proper oversight by the President and by the Congress, then the reported findings of this Commission will not be nearly as strong as said report should be, given the gathering of considerable talent and experience here. 

While many of the research topics/questions were fully and eloquently addressed by my colleague Leonard Selfon in our statement of July 22, 2005, I will try to re-state those same arguments in the format supplied by Commission staff. 

Compensation Subcommittee 

VVA believes that question # 1 proposed by the Committee for study, “How well do benefits provided to disabled veterans meet Congressional intent of replacing average impairment in earnings capacity” is certainly a valid one, and we noted this point in our testimony in July.

Not only should there be consideration as to whether a significant adjustment should be made such as that such payments would be more appropriate to our economy and changed economic circumstances today. 

Since this issue is raised so often from so many quarters, differences in the cost of living in different regions of the country must also be considered. The issue is whether the level of disability compensation benefits would be more appropriate if tied to geographical variances in the cost of living.  Similarly, the question of how well benefits currently provided to disabled veterans meet implied Congressional intent to compensate for impairment in quality of life due to service-connected disabilities is one that is closely related to the first, and worthy of study as well. The obligation is to return veterans to the state they would have been had they not been in some way lessened by virtue of military service. The latter part of this issue is one that is difficult but extremely important. While no amount of money can compensate for the terrible physiological and psychiatric wounds suffered by so many veterans, the issue of what is just recompense to make daily living better is an important one. 

A derivative issue that is every bit as important as compensation to the veteran is how well Dependency & Indemnity Compensation (DIC) benefits provided to survivors meet implied Congressional intent to compensate for the loss of the veterans/service members’ earning capacity and for the impairment in quality of life due to service-connected death.  The concept of a survey to determine the quality of life and general circumstances would be useful.  VVA has consistently championed increased DIC benefits for more than 20 years, and it is still not adequate in our view. 

Another related, and very important, issue is that of Gold Star parents. While no amount of money could ever make up for the loss of a child, many of these parents of the fallen are in difficult circumstances today. Were their son alive, many of the mothers who lost their son in Vietnam would have someone to better take care of and provide for them. The son or daughter sacrificed is not here now to assist the mother and/or father.  Is there an obligation toward these mothers and fathers in their old age on the part of the nation, as their son or daughter was sacrificed in military service to country? This question merits addressing. 

VVA believes that the question of the impact of how the nation treats veterans who become ill or injured is a vital one to the defense of our nation. Young people today are very sophisticated and aware of what is going on around them.  When they see fathers, siblings, and cousins who they think are not being treated fairly in regard to accessing quality medical care in a timely manner, or who they think are not being treated fairly by the VBA Compensation & Pension system, or who find it difficult or impossible to get truthful verification of exposures to toxic exposures in Project 112 / SHAD, this will (and has) affected recruitment and retention of both our active duty force, as well as out National Guard & Reserve forces. 

The question of how well the medical criteria in the VA Rating Schedule and VA rating regulations enable assessment and adjudication of the proper levels of disability to compensate for both the impact on quality of life and impairment in earnings capacity is another area where VVA agrees that this is an area that needs to be examined. In many cases, if the Veterans Benefits Administration (VBA) actually consistently met their “duty to assist” and also in reality acted as if this was a non-adversarial process, then this would not be nearly the problem that it is today. If VBA did their job correctly, the Congress would not feel impelled to write everything into black letter law.   

However. VBA does not follow their own procedures, Veterans Health Administration (VHA) local officials routinely do not give adequate training, materials, or time to examining clinicians to let them do their job correctly in performing C&P exams. A good example is the Best Practice Manual for Adjudication of PTSD Claims. Most VBA and VHA examiners do not know this book exists. However, they should be trained in these same “Best Practice(s)” and given time to do their job correctly by their clinic directors.  Instead they are given 40 minutes, or 20 minutes, and even as little as 10 to 15 minutes to do the entire examination, to include reviewing a claimant’s file and medical record. This is absurd. Some people keep saying over and over that mental health claims are “subjective.” This is not so.  If VA used the manual, trained their people properly, gave the proper tests, and let their personnel do their job correctly, almost all VA staff would just get it done right the first time, obviating the need to “churn” claims back and forth in the system. 

Evaluating mental disorders is considered more subjective primarily by people who do not believe in their staff, or who have a consistent bias against mental illness of any sort as opposed to physical disorders.  Consider these comments by four different officials at different times, which are telling in this regard:  

By a former Chief Counsel to one of the Veterans Affairs Committees in Congress:

“I like my disabilities where I can see ‘em!”

            By a former and now again current major official at the VA:

                        “It’s too expensive to follow the ‘Best Practice Manual’ on PTSD!”

            By a senior official of VBA, at the July meeting:

                        “The PTSD ‘Best Practice’ manual is too long!  It’s more than 100 pages!”

            By a senior VHA official at Bay Pines VAMC:

                        “The PTSD ‘Best Practice’ manual does not apply to us (VHA), only to VBA.” 

These comments betray a mindset that it is disrespectful of psychiatric wounds, short-sighted in the extreme, as well as ready to blame the veteran for the shortcomings of both the VHA in properly performing C & P exams, and the VBA adjudication system as it currently functions.  

The third comment noted above is just plain disrespectful of VA staff and their capabilities, if properly trained and supported. Is the implication to be drawn that VA staff cannot read and comprehend that much material?  Is it that this individual feels that they just are not smart enough?  Since the VA Adjudication Procedures Manual is in excess of a thousand pages, if that were true, then how would they be able to adjudicate any other type of claim, given that this ranking official apparently thinks that 137 pages is just too much for the VBA staff members or for examining clinicians at VHA?  Frankly, VVA has much more faith in these VA people than this senior representative of their own agency. 

In regard to comparisons of civilian compensation plans, Mr. Selfon’s statement on behalf of VVA more than addressed most of the remaining questions in this subcommittee cluster of questions in our earlier testimony. The question of level of compensation, and whether lost earnings and loss of “quality of life” should be adjudicated separately, we would suggest that trying to untangle these factors would be very difficult. VVA further maintains that the “24/7” principle is always looming, and many civilians just do not get it that military service is in many ways that are radically different from private sector, or even virtually all of public sector employment. You are essentially always on duty, can be sent anywhere in the world at any time, and often suffer long separations from friends and family in addition to exposure to harsh and potentially lethal conditions. 

As to linking the benefits available to service disabled veterans, such as adaptive housing allowance and home loan guarantees, Congress has done a reasonable job of keeping up with needed changes in this area, and we would suggest that this not an area that you or your staff devote a great deal of time to considering. The sole exception is:  Should more be provided to catastrophically disabled veterans and their families? 

That the question of linking disability pay to rank is even raised as a significant question is troubling to us. Since those who are most likely to be wounded in a combat theater of operations or in other highly dangerous duty posts are generally younger enlisted personnel, junior NCOs, and junior officers, to tie their compensation to their rank smacks of reinstating the patently unfair class system that existed in regard to DIC prior to 1993. VVA has consistently opposed such a caste system for the entire 25 years of our existence. 

VVA believes that no time should be wasted on an examination of “lump sum” payments in lieu of service-connected compensation – if your purpose is fairness and equity for the individual who has been lessened by virtue of service to country. If the intent is to just to save money for the government in the long run to the detriment of veterans whose conditions may manifest with secondary complications of a significant nature years later, or to the detriment of veterans whose basic injury or condition may worsen dramatically with age, then perhaps this should be a topic of inquiry worthy of major staff effort. Otherwise, VVA urges you to concentrate on more productive lines of inquiry. 

As to utilizing the AMA Guides to the Evaluation of Permanent Impairment and other standardized guides for disability as a departure point for a revised disability schedule that continues to be unique for veterans, VVA would cautiously endorse the concept, as long as a panel of independent specialists impaneled by the Institute of Medicine is significantly involved.  

In regard to work incentives, this Commission should look to the gross failure of the systems created, and which we continue to fund, designed to assist service-disabled veterans to obtain and sustain employment. Before getting into a philosophical inquiry into “work incentives” as an element in compensation, perhaps an inquiry should be made into why the current mechanisms do not work, particularly for veterans rated 60% or greater service-disabled by the VA. In addition, veterans’ preference just does not work.  The veterans’ priority at Department of Labor programs is not enforced, and other programs simply do not help put service-disabled veterans back to work at a living wage. 

Duty-Service Connection Subcommittee 

In regard to issue of altering the definition of “line of duty,” VVA believes that line of duty relates to the principle of “24/7” unless the veteran is engaging in willful misconduct, or violating orders when the disability was incurred. VA believes the VA benefits package should live up to the principle of restoring the veteran and the veteran’s family to the socio-economic level to which they could have reasonably expected to achieve had the disability not been incurred. This necessarily includes more than compensation and health care.  VVA believes that this is certainly appropriate for consideration and inquiry. 

In regard to presumption, it is very difficult to prove injury from exposure to toxic substances and other hazardous materials. This is true of all hazardous exposures, and not just those incurred in military service to country. Further, the Department of Defense usually refuses to be forthcoming in regard to hazardous exposures, and oftentimes will not share information with the veteran or even sitting Members of Congress once such exposures become public due to intense advocacy work and research by non-governmental entities. Further, the VA does not follow its own procedures in regard to “benefit of the doubt” going in the veteran’s favor, and rarely meets its obligation in regard to the “duty to assist.” 

Furthermore, insidious diseases such as multiple sclerosis and diseases with long incubation periods such as hepatitis C do not lend themselves to ready evidence of the nature and date of onset. Presumptive service connection relieves the veteran from sometimes impossible evidentiary burdens, and relieves the VA from convoluted evidence-gathering. Accordingly, VVA believes that the current presumptive principles are sound, but need to be more vigorously adhered to. For the same reasons cited here, there should be no deadline or time limit for when a veteran can file a claim for any disability. 

Currently, age is not a factor in Compensation & Pension payments. VVA believes that while common sense needs to apply here, it is also true that people in our society are, and need to, work much longer than in previous times. It is not uncommon for people, including veterans, to have children later in life.  In addition, the cost of living does not decline for older people. 

In regard to examining the “benefit of the doubt” doctrine, the Commission should demand that it actually be enforced in any case where the evidence for and against the claim is in relative balance, as required by law. Frankly, we do not know how this would actually work on a uniformly applied basis in practice, as this has never happened at VA. 

Similarly, VVA has observed that the statutorily mandated “duty to assist” is frequently breached at the administrative and appellate levels.  We should try to enforce the law we have before we look toward changing it. 

In regard to PTSD claims, and as discussed above, the VA needs to properly train staff in their own “Best Practice Manual” and assure that it is followed. 

Transition/Coordination/Readjustment Subcommittee  

There is very little meaningful coordination between the Department of Defense and the VA in regard to transition of service members. This is true in regard to transfer of military medical and administrative records. While we believe that the VA has made a much better “good faith effort” in this regard than the DoD, the fact of the matter is that it does not work.  

The “seamless transition” that has been heralded is simply “newspeak” a la George Orwell’s novel “1984.” Not only is there no “seamless transition,” there is a spotty catch-as-catch-can transition at all. The Commission would do well to look into how this might be achieved, but until the President orders the Secretary of Defense, and the command structure from the top down to hold people accountable personally and professionally for making it happen, it will continue to a matter of frustration for the Congress, this Commission, the VA, and all who care about our separating men and women service members. 

Mr. Chairman, I thank you and your distinguished colleagues for this opportunity to present the views of Vietnam Veterans of America regarding topics for further investigation and inquiry by the Commission to you and this distinguished body.  I would be pleased to answer any questions you may have.