Legislative Issues

STATEMENT

VIETNAM VETERANS OF AMERICA

SUBMITTED BY

LEONARD J. SELFON, ESQ.
DIRECTOR, VETERANS BENEFITS PROGRAM

RICHARD WEIDMAN
DIRECTOR, GOVERNMENT RELATIONS

PATRICK EDDINGTON
ASSOCIATE DIRECTOR, GOVERNMENT RELATIONS

BEFORE THE

UNITED STATES SENATE
COMMITTEE ON VETERANS’ AFFAIRS

REGARDING

S. 131, S. 228, S. 409, S. 457, S. 662, S. 781. S. 912, S. 937, S. 1088 – S. 1094:
VARIOUS VETERANS BENEFITS-RELATED LEGISLATION

JUNE 28, 2001

Mr. Chairman and other distinguished members of the Committee, on behalf of Vietnam Veterans of America (VVA), we are pleased to have this opportunity to present our views with respect to several important pieces of veterans benefits-related legislation. In this statement, we will address each proposed bill seriatim. VVA is most appreciative of your inviting us to provide a statement for the record in this matter, and for your leadership in seeking to improve such a vital VA programs as those affected by the legislation at issue.

S. 131 and S. 937– Veterans Higher Education Opportunities Act of 2001; Helping Our Professionals Educationally (HOPE) Act of 2001.

S. 131 would amend the method of how the Department of Veterans Affairs (VA) determines the annual rate of the basic benefits for active duty educational assistance under the Montgomery GI Bill (MGIB). This amendment to 38 U.S.C. § 3015 would revise MGIB benefit payments from Congressionally-set fixed annual amounts to a formulaic determination based upon the average monthly costs of tuition and expenses for commuter students at public institutes of higher education.

VVA wholeheartedly endorses the legislative action reflected in S. 131. The benefit increases and program improvements contained therein will enhance the lives of veterans and their dependents. The current level of benefits is clearly inadequate to allow many young veterans even to consider furthering their education. This low rate also significantly contributes to the high drop out rate prior to finishing a course of study. While VVA is generally very supportive of this Act’s provisions, we offer the following comments for your consideration.

Pursuant to the MGIB, the Department of Veterans Affairs (VA) pays eligible individuals who are pursuing an approved program of education, a basic educational assistance allowance to help defray the cost of tuition, subsistence, fees, supplies, books, equipment and other educational expenses. Currently, the VA pays a basic educational assistance allowance for an approved educational program that is pursued on a full-time basis at a monthly rate of $528.00. See 38 U.S.C. § 3015(a)(1). Further, in the case of an individual who is entitled to an educational assistance allowance and whose initial obligated period of active duty is two years, the current basic educational assistance allowance paid for an approved educational program on a full-time basis is at the monthly rate of $429.00. See 38 U.S.C. § 3015(b)(1).

VVA is strongly supportive of these increases not only because it will benefit the fine young men and women ending their service to Nation in the Armed Forces, but also because it is in the interest of the Nation to ensure that the extraordinary potential and discipline of the men and women is maximized. The way to do that is to ensure that they are able to acquire the higher education that will build off of the solid base they have already acquired in the military.

It is important to note that as of the 50^th anniversary of the MGIB, more than 20 million veterans had used these benefits to make them more prepared for the challenges of the civilian workplace, and to enable them to become more productive. Since that time the MGIB continues to provide the same opportunities to the young veterans of today. Early passage and enactment of S. 131 will ensure that this tool will be similarly effective in the future of helping to fuel the engine of our Nation’s economic success.

S. 937 would permit the transfer of entitlement to basic educational assistance under the MGIB (up to one-half) by members of the armed forces who possess critical military skills to an eligible spouse or dependent child. VVA, once again, is entirely supportive of this legislation since it will have the practical effect of enhancing the recruitment and retention of service personnel with critical military skills, and afford greater educational opportunities to their dependents. With higher education and skills developed in their own right, the families of service men and women will be able to obtain higher paying employment and can augment the salaries and family income of our service personnel.

In light of these two bills, VVA urges the Committee to incorporate following therein, in addition to the current provisions. The monthly benefit rate should be set at the level necessary to obtain a 4-year degree at an institute of the veteran’s choice, with annual tuition and related expenses indexed to education inflation. We believe that this is entirely consistent with the spirit of the MGIB as a means for the veteran to efficiently transition from service to civilian life.

The 10-year “use-or-lose” provision currently governing the MGIB should be eliminated. Veterans should be allowed maximum flexibility in determining when, how, and where they will use their MGIB benefits. This is particularly important as our economy transitions from being production-based to becoming more high-tech and service-intensive.

MGIB benefits should be fully transferable to the spouses or children of veterans, at the veteran’s option. Veterans who are successful in their existing careers may not feel the need to use their MGIB, but may not be able to provide sufficient educational assistance to their children to allow them to succeed in the new economy. Additionally, a veteran’s spouse, after raising the family, may desire to improve his or her education after the children have left the home. Allowing full transferability of MGIB benefits would allow the veteran the maximum flexibility in determining how best improve his or her family’s economic future by using MGIB benefits when and where they are most needed.

Finally, VVA urges the Committee to increase the appropriation for state veterans education approving agencies to at least $18 million, given their expanded scope and responsibilities under recent legislation. Such agencies have had their budgets flat-lined for more than five years. As a result, they are in danger of being unable to discharge their vital obligations.

This bill would render the current Native American veterans housing loan pilot program a permanent fixture. The program encompasses direct home loans to Native American veterans living on trust lands. VVA is enthusiastically endorses this action, and would further urge the retention of the requirement that the VA outstation part-time VA loan guaranty specialists at tribal facilities upon request by the tribe.

VVA strongly supports S. 409 and its House companion, H.R. 612, the Persian Gulf War Illness Compensation Act of 2001. We understand that in their testimony today, the administration asserts that there is no need for this legislation, and that VA’s existing authorities under statute and regulation are sufficient to deal with Gulf War-related claims. Undersecretary Thompson further asserted in his oral remarks that Gulf War veterans could still be directly service-connected for their undiagnosed illnesses. Nothing could be further from the truth. Passage of this legislation is vital if ailing Gulf War veterans are to receive the compensation they deserve for having developed a range of medical problems as a result of their service in Desert Storm.

The rationale for this legislation is quite straightforward: the Department of Veterans Affairs has overly narrowly interpreted the intent of Congress, as embodied in Pub. L. 103-446, the Persian Gulf War Veterans’ Benefits Act (the original legislation passed to help sick Desert Storm veterans obtain compensation for undiagnosed illnesses). That is not simply VVA’s opinion, but that of the then-chairman of the House Veterans’ Affairs committee, Rep. Bob Stump.

On June 3, 1998, Chairman Stump sent a letter to then-VA Secretary Togo West in which Mr. Stump stated, in part:

“…it has become increasingly apparent to us that the Department is too narrowly implementing the landmark legislation initiated in this Committee to provide compensation for these veterans.”

In critiquing the VA’s implementing regulation (38 C.F.R. § 3.317), Mr. Stump noted that “VA regulations implementing that law…effectively limit compensation to “illness…[which] by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis…in ruling out compensation under PL 103-446 in any case where the illness in question has been given a diagnosis is to ignore both the nature of the illnesses Congress sought to have the VA compensate as well as the philosophy of benefits adjudication it sought to have the Department apply.”

In the three years that have passed since Mr. Stump issued this letter, the VA’s own internal statistics tell the tale of how the Department has failed to properly compensate ill Gulf War veterans.

According to the VBA’s Data Management Office, as of January 2001, the VBA was denying undiagnosed illness claims under PL 103-446 at a rate of approximately 75%. In other words, three out of four Desert Storm veterans who have filed undiagnosed illness claims have been denied benefits…an outrageous development that has caused untold pain and suffering for those veterans seeking compensation payments for their war-related illnesses.

Moreover, the VA’s assertion that ill Desert Storm veterans can achieve direct service-connection for their undiagnosed illnesses is simply untrue in the overwhelming majority of cases. As the VA is quite aware, VA grants direct service-connection only for those cases where a documented nexus of illness/injury and service time exists. The Pentagon has repeatedly acknowledged that its medical record keeping during and after Desert Storm was abysmal. Thus, even if a veteran reported seemingly inexplicable symptoms during the conflict, it is unlikely that such conditions were documented at the time.

Secondly, the overwhelming majority of ill Desert Storm veterans developed their symptoms after the war, thus virtually guaranteeing their ineligibility for direct, in-theater service connection. Undersecretary Thompson is well aware of these facts and VVA can only wonder whether or not Mr. Thompson’s comments were designed to downplay a very real problem for the sake of saving the department millions of dollars at the expense of the health of tens of thousands of ailing Gulf War veterans.

S. 409 will rectify this problem by leaving the VA absolutely no “wiggle room” to defy, ignore, or otherwise evade the intent of Congress on this very important question.

We do recommend, however, that on the basis of the IOM’s Agent Orange-related work (cited above) that S. 409 be amended to leave the presumptive period open indefinitely. As we have previously testified, there is no scientific basis whatsoever for placing any type of time limit on the manifestation of service-related illnesses. VVA can assure Congress that there is no “statute of limitations” on the illnesses that these veterans have developed, and that they will likely suffer the effects of these ailments for the rest of their lives. Accordingly, with the recommend amendment outlined above, we urge the passage of this critically important measure with all deliberate speed.

We also recommend that the Committee hold an oversight hearing (this fall, if possible) to examine the health and compensation ramifications of the latest research into Gulf War illnesses. We specifically recommend that the Committee request presentations from the General Accounting Office on their April 2001 report, Coalition Warfare: Gulf War Allies Differed in Chemical and Biological Threats and in Use of Defensive Measures (GAO-01-13, April 2001). This report notes that French Gulf War veterans suffer virtually no symptoms of Gulf War illness in comparison to their American and U.K. counterparts. They key difference between the French and U.S./U.K. approach to chemical/biological defense during the Gulf War was that the French did not use biological warfare vaccines on their forces. VVA believes that in light of this GAO finding, and on the basis of widespread reports of serious adverse reactions among American military personnel to the anthrax vaccine over the past three years, that the committee should fully investigate whether chemical/biological warfare medications may have produced “medical fratricide” among our Gulf War and later era veterans.

Additionally, with respect to future funding of Agent Orange, Gulf War, and other medical research and treatment studies, VVA strongly urges this committee to establish (preferably under the auspices of the Department of Health and Human Services) a peer-review panel that includes voting representatives of the veteran service organizations. A potential model for this is the Congressionally Directed Medical Research Programs (http://cdmrp.army.mil), which includes patient advocates on its peer-review panels charged with making decisions about which research or treatment programs will receive funding in the areas of breast and prostate cancer research, among others.

VVA feels strongly that the existing Military and Veterans Health Coordinating Board (MVHCB) (the body that currently has jurisdiction over the GWI research and treatment funding program) is both exclusionary and out of touch with the legitimate concerns of veterans and their family members about the nature, scope, and direction of research and treatment for toxic battlefield exposures. For example, the current ratio of GWI research versus treatment programs is approximately 100 to 1 (i.e., the MVHCB has funded only two treatment programs over the past seven years). In the case of Agent Orange, there are no current research or treatment programs involving humans. Given dioxin’s longevity in the body and the environment, this lack of research is a scandalous, and very likely deadly, disservice to Vietnam veterans and their family members.

Establishing a veteran-inclusive peer-review panel that examines all past toxic battlefield exposure issues is the best mechanism for ensuring both sound scientific results and addressing the legitimate concerns of veteran-stakeholders. Establishing such an entity within HHS would ensure that specialized agencies, such as the National Institutes for Environmental Health Sciences, are fully integrated into medical research and treatment programs involving veterans, something that is currently not the case. Only by utilizing the full medical resources of the federal government in a rational, stakeholder-inclusive fashion can we hope to properly diagnose and treat the medical conditions afflicting Vietnam, Gulf War, and other post-Cold War veterans.

Finally, VVA urges the Congress to compel the Secretary to improve VA’s outreach to Gulf War veterans nationally, specifically through a television ad campaign or televised public service announcements. VVA and its sister organization, the National Gulf War Resource Center, continue to receive phone calls, emails, and letters on a weekly basis from Gulf War veterans who have absolutely no idea what VA programs are available to them. We remind the committee that despite the perception that we live in an age of instant, internet-based communications, many veterans, particularly those living in rural communities, do not have routine access to or familiarity with the internet. These veterans do have access to television, and the VA should be using that as its primary medium for outreach to veterans of all eras.

This is an issue of particular concern to VVA and its membership. There is no disputing the fact that the hepatitis C virus (HCV) is more prevalent among Vietnam veterans than in veterans of other eras and in the general population. S. 457 would amend 38 U.S.C. § 1112 by providing a presumption of service connection for HCV for those veterans who are diagnosed with the disease and manifest resulting disability to a degree of 10 percent or more, notwithstanding the absence of symptomatology or diagnosis during active military service. The presumption would apply in situations where the veteran experienced one of the following occurrences during service: 1) transfusion of blood or blood products prior to December 31, 1992; 2) exposure to blood on or through the skin or a mucous membrane; 3) hemodialysis; 4) a needle-stick accident or medical event involving a needle, not due to the veteran’s own willful misconduct; 5) unexplained liver disease; 6)unexplained liver dysfunction value or test; and 7) service in a healthcare-related position or specialty.

The premise behind presumptive service connection is that in certain claims, often involving complex, technical scientific/medical issues (such as radiation or dioxin exposure), or certain types of service (such as internment as a prisoner-of-war service), it would be unfair to burden an ill veteran with proving all the elements otherwise required for an award of service connection. Presumptive service connection obviates the need for medical nexus evidence (i.e.¸ evidence in the form of an opinion from a competent medical expert that there is a relationship between an disease, injury or an event during military service and a currently diagnosed disorder). The presumption allows for an award of service connection where evidence of etiological origin may be difficult, or even impossible, to obtain).

The VA has had a long and compassionate history of providing presumptive service connection for a wide variety of disorders, including those related to chemical and radiation exposure, tropical diseases, multiple sclerosis and tuberculosis. See, generally, 38 C.F.R. §§ 3.307 and 3.309. This must be extended to HCV as well. HCV is an insidious disease, often taking decades to manifest. The disease was not identified as a specific variant of hepatitis until the late 1980’s, and there was no reliable serologic test for the presence of HCV until 1992. Often there is no medical evidence of the disease in service, nor evidence of exposure to one of the recognized risk factors while on active military duty (e.g., blood transfusion or organ transplant prior to 1992; exposure to blood or blood products by percutaneous (through the skin) exposure or on a mucous membrane; hemodialysis; tattoos; body piercing; sharing razors or toothbrushes; intravenous drug use; intranasal cocaine use; or high risk sexual activity). Without such evidence, it is virtually impossible to establish entitlement to service connection on a direct basis. Consequently, presumptive service connection is the only avenue to VA compensation and healthcare in this respect.

VA officials have testified before this Committee and stated the agency’s position in opposition to a legal presumption of service connection for HCV. In essence, such opposition is based upon the agency’s preoccupation with reports that emphasize the high incidence of HCV infection is persons who engage in high risk “destructive life style choices”. Statement of Dr. Leo S. Mackay, Jr., Deputy Secretary of Veterans Affairs, June 28, 2001, p. 27. The VA emphasizes that these reports reflect that intravenous drug use accounts for approximately 60 percent of HCV infection. While VVA shares the VA’s concern that the American taxpayer should not bear the burden of financing VA compensation and treatment for HCV incurred solely as the result of willful misconduct, service connection for HCV should not be summarily denied simply because there is some reference in the record to substance abuse, tattoos or venereal disease. Yet current VA adjudication training guides encourage denials of service connection in these cases, even where the one of the accepted risk factors is present (e.g., exposure to blood or blood products during service) and there is medical opinion attesting to the relationship between the accepted risk factor and the current diagnosis. The result is that in a claim for direct service connection for HCV in such scenarios, the VA routinely denies the application, pointing to the presence of the unaccepted risk factor.

VVA believes that this philosophy violates the VA’s statutory obligation to afford the claimant the benefit of the doubt, where the positive and negative evidence is in relative equipoise. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). If there is evidence of an accepted risk factor during active military service and a current diagnosis of HCV, it should not matter if there are any post-service unaccepted risk factors. No medical expert can opine with any degree of medical certainty exactly which incident caused the infection. This is a classic case for the application of the doctrine of benefit of the doubt. The establishment of presumptive service connection for HCV, as defined by the provisions of S. 457 would resolve this problem. Under this legislation, service connection would require only evidence of one of seven recognized risk factors during service and a current diagnosis of HCV (resulting in sufficient disability as to warrant a 10 percent evaluation). In other words, an often insurmountable legal hurdle to VA compensation and health care would be eliminated. It is simply unjust and incomprehensible to deny VA benefits to those deserving veterans who incurred a deadly virus in the line of duty because of the possibility of infection through another, more socially unacceptable, means. To this end, VVA applauds the Committee’s consideration of S. 457 and wholeheartedly endorses its passage.

This bill would amend 38 U.S.C. § 2306 by authorizing the VA to furnish headstones or markers for marked graves of, or to otherwise commemorate, certain individuals. Since, VVA steadfastly believes that all veterans have earned the for such recognition, regardless of the fact that that the gravesite has been privately marked in some manner, we support this legislation.

S. 781 - Extension OF Authority For Housing Loans For Members Of The Selected Reserve.

This bill would extend until September 30, 2015, the authority for housing loans for members of the Selected Reserves. The current expiration date for this authority is September 30, 2007. VVA supports this extension.

This legislation would provide long overdue increases in the burial allowance for veterans who succumb to their service-connected disabilities (from $1,500 to $3,713) and for other eligible veterans (from $300 to $1,135), as well as the plot or internment allowance (from $150 to $670). The VA would further be authorized to provide for annual percentage increases in these allowances. Due to the rising costs of plots and funerals over the years, the VA’s burial and plot allowances have been so dwarfed as to become almost meaningless. VVA supports these increases and urges the Secretary of Veterans Affairs to keep pace with such rising costs in the future.

VVA supports this amendment to Chapter 30 of the U.S. Code that would accelerate the payment of basic educational assistance benefits for courses of instruction that lead to employment in high technology industry.

S. 1089 – Expansion of the U.S. Court of Appeal for Veterans Claims; Revision of Jurisdiction

This bill would, among other things, temporarily authorize the expansion of the number of judges on the U.S. Court of Appeals for Veterans Claims (CAVC) from seven to nine, between the date of enactment and August 15, 2005. This authorization seemingly provides a preemptive measure against the potential of multiple vacancies on the CAVC bench due to the upcoming eligibility for retirement of several currently seated judges in the near future. The appointment of the additional judges as soon as possible would also allow them to gain experience in the highly specialized field of veterans law prior to the retirement of the Court’s senior jurists. VVA agrees with the wisdom of this action and supports the measure. Neither does VVA oppose Section 2 of S. 1089, which repeals the requirement for a judge’s written notification regarding acceptance of reappointment as a condition for retirement from the Court.

Section 3 of the bill eliminates an original limitation upon the Court’s jurisdiction by repealing Section 402 of the Veterans Judicial Review Act (VJRA), Pub. L. 100-687.See also 38 U.S.C. § 7251 note (also to be repealed). Pursuant to the VJRA, the Court was not permitted jurisdiction over appeals from the Board of Veterans Appeals where a non-judicial (or administrative) appeal was not initiated by a Notice of Disagreement (NOD) on or after November 18, 1988 (the effective date of the VJRA). This was designed to deflect a tidal wave of appeals to the new Court based upon years or even decades old denials of claims for veterans benefits at the administrative level. So many years have elapsed since the passage of the VJRA, however, that the pre-1988 NOD jurisdictional bar has become moot. Virtually all original appeals to the Court today have NODs filed long-past November 18, 1988. Consequently, VVA strongly approves of the repeal of this outdated provision.

Section 3 of S. 1089 would further repeal Section 403 of the VJRA (as well as 38 U.S.C. § 5904 note), which would have the practical effect of removing the bar against attorney fees where the NOD was filed prior to November 18, 1988. Since the other part of Section 3 repeals the November, 1988 bar to CAVC appeals, repeal of Section 403 is a logical extension thereof. VVA supports this provision as well.

S. 1090 – Veterans’ Compensation Cost of Living Adjustment Act of 2001.

Quite obviously, VVA enthusiastically supports this legislation. Disabled veterans and their families fall victim to the rising costs of living no less so than anyone else. S. 1090 would increase the current levels of disability compensation, additional compensation for dependents, the VA clothing allowance and the various rates of Dependency and Indemnity Compensation (DIC). The percentage of increase would be equivalent to the percentage of the cost of living adjustment (COLA) for Social Security beneficiaries, and would become effective as of December 1, 2001. These COLA increases are absolutely necessary to ensure that veterans and their dependents receive meaningful benefits, and to prevent them from falling through inflationary cracks.

S. 1091 – Modification And Extension Of Authorities On The Presumption Of Service Connection For Herbicide-Related Disabilities Of Vietnam-Era Veterans.

This legislation would repeal what, in VVA’s opinion, is perhaps one of the most egregious injustices worked upon Vietnam veterans; the scientifically unwarranted requirement that that respiratory cancers, claimed as the result of exposure to Agent Orange or other herbicidal agents, must manifest to a 10 percent degree of disability within 30 years of the after the last date upon which the veteran was exposed to herbicidal agents while in Vietnam. See 38 C.F.R. §§ 3.307(a)(6) (ii) and (iii), 3.309(e). Without hesitation, VVA supports this action. Consequently, we further support that part of the bill that allows for retroactive compensation for those victims of arbitrary 30 year limitation.

Almost a decade ago, Congress passed Public Law 102-4, the “Agent Orange Act of 1991”. See 38 U.S.C. § 1116. The Act provided the Secretary of Veterans Affairs with the authority to establish presumptive service connection (i.e., entitlement to service connection for diseases without the necessity of medical evidence to establish an etiological nexus between military service and a current disease) for diseases that have been scientifically demonstrated to be associated with exposure to the chemical defoliant Agent Orange, dioxin and other herbicidal agents during military service in Vietnam. Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a “positive association” exists between such exposure and the subsequent occurrence of disease, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for such disease. See 38 U.S.C. 1116(b)(1). In making such a determination, the Secretary has been directed to take into account both reports received from the National Academy of Sciences (NAS) and “all other sound medical and scientific information and analyses available to the Secretary.” 38 U.S.C. 1116(b)(2). The association between disease and exposure is considered to be positive if “credible evidence for the association is equal to or outweighs the credible evidence against such association.” 38 U.S.C. § 1116(b)(3).

Currently, ten diseases are presumptively considered to be the result of exposure to herbicidal agents used in Vietnam during the war. They are as follows: chloracne or other acneform disease consistent with chloracne; Hodgkin’s disease; diabetes mellitus Type II, acute and subacute peripheral neuropathy; porphyria cutanea tarda; multiple myeloma; non-Hodgkin’s lymphoma; prostate cancer; respiratory cancers (i.e., cancer of the lung, bronchus, larynx or trachea); and certain specified soft-tissue sarcomas. See 38 C.F.R. § 3.309(e). Moreover, exposure to these agents has been shown to be so detrimental that VA healthcare, vocational training and a monetary allowance are available for children of Vietnam veterans who suffer from spina bifida. See Pub. L. 104-204, § 402. In addition, the VA has announced that based upon NAS’ Institute of Medicine’s (IOM) recent findings, benefits will soon become available for children of Vietnam veterans who have acute myelogenous leukemia (AML).

The 30-year delimiting period for service connection for Agent Orange-related respiratory cancers is a striking example of how poorly medical evidence is transmitted to and interpreted by the VA. Recently, the IOM’s Agent Orange Review panel determined that there is no scientific evidence whatsoever to support any limitation on the period of time it takes to manifest illness as the result of exposure to herbicidal agents. This misadventure has cost affected veterans and their families both compensation and health care for years.

Subsection (c) of Section 1 of the bill would restore the long-standing presumption of exposure to Agent Orange and other herbicides for any service personnel that actually served in the Republic of Vietnam. This presumption stems from the difficulties encountered in securing evidence to demonstrate that an individual was actually exposed. This applies not only to personnel on the ground during and after Arial spraying, bit those individuals that loaded the aircraft with herbicides or otherwise came into contact with toxic chemicals. In 1999, however, the CAVC handed down a decision wherein it opined that 38 U.S.C. § 1116 (a)(3) and 38 C.F.R. § 3.308(a)(6)(iii) authorize the presumption of exposure only if the veteran has been diagnosed with one of the VA-approved presumptively service-connected diseases. See McCart v. West, 12 Vet.App. 164, 168-169 (1999). The VA quickly embraced this decision, resulting in the denial of veterans’ claims for service-connection for diseases not on the presumptive list, even where there was competent medical evidence of an etiological nexus between exposure to herbicides in Vietnam and the subsequent onset of the disease. In our experience, the VA routinely denies such claims, regardless of any probative evidence submitted in support of the claim. In other words, there is little or no consideration of service connection on a direct, rather than a presumptive, basis. VVA strongly supports the restoration of this critical presumption.

Finally, VVA lends its full support to Section 1(d) of the bill, which extends the sunset period for the NAS’ review and reporting process foe studying and recommending the addition of other diseases to the VA’s presumptive list from 10 to 20 years. This extension is vital to the well being of affected veterans. Most medical professional and scientists would agree that we have only scratched the surface with respect to understanding the long-term effects of toxic exposures, including dioxin. Many of the current studies heavily relied on by the IOM and the VA (e.g., the Air Force’s Ranch Hand study) are woefully inadequate to present a true picture of the devastating effects of such exposure. Findings are gender biased since most of the populations studied consist entirely of males. Other studies extrapolate conclusions from the examination of dirt and fish. More funding and research is required to even approach the level of understanding to treat and compensate our suffering veterans.

Pursuant to Section 2 of this bill, nonservice-connected pension life insurance proceeds and other nonrecurring income would be excluded from the determination of annual income for pension purposes, effective as of January 1, 2002. VVA is entirely in favor of this action. We would point out, however, that the same exclusion should be incorporated in to 38 U.S.C. § 1522 (the statute that delineates net worth limitations) in order to ensure that the VA complies with the legislative mandate.

Under Section 3 of the bill, the current requirement that claims for death pension must be filed within 45 days of the date of the veteran’s death in order for the effective date of an award of death pension to be the first day of the month in which the veteran died. VVA endorses the abolition of this requirement. VVA further supports the provision in this section that extends the date of a reduction or discontinuance in pension awards from the end of the month in which there was an increase in income to the end of the calendar year in which the increase occurred.

VVA is a bit cautious with respect to Section 4 of the bill, as it might present the CAVC with the opportunity interpret language therein as a vehicle for reinstating the procedural obstacles thrown in the path of veterans claims by the now-defunct well-grounded claims requirement. Such a development would clearly frustrate the Congressional intent behind the assistance provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475. Section 4 would amend 38 U.S.C. § 5102 by imposing a one-year time limitation upon a claimant’s submission of information necessary to complete an application for benefits (other than for Government life insurance). VVA is not opposed to this provision, as long as it is made clear that this is only a procedural clarification in terms of the time limit and not a substantive change in what the VCAA has defined as a substantially complete application (which does not require sufficient evidence to prove a claim on the merits) The one-year time limit concept with respect to responding to the VA’s requests for information is a long-standing concept to which we have no objection.

Our trepidation stems from the other provision of this section, which would amend 38 U.S.C. § 5103 by removing the one-year time limitation for the submission of information or evidence necessary to substantiate a claim once a substantially complete application has been filed. We are concerned that the VA could interpret this amendment to justify the denial of a claim before the one-year period has expired. It would be manifestly unfair for the VA to allow one year for the submission of information or evidence to complete an application for benefits or to substantiate a claim, and yet be permitted to deny the claim based upon the evidence previously of record before that period has expired.

Subsection 5 of the bill purports to amend Section 7(a)(2) of the VCAA by making the notice and assistance provisions contained therein applicable to all claims that were mot finally denied before the enactment of the VCAA, rather than those that were denied as not being well-grounded between July 14, 1999 (the date of the CAVC’s decision in Morton v. West, 12 Vet.App. 477 (1999), and the date of the VCAA’s enactment. The problem is that although the VCAA affords the claimant greater rights in terms of VA notification and evidentiary development requirements, such assistance and notification may not materially affect the disposition of their claims. The CAVC’s policy has generally been to remand appeals back to the Board of Veterans’ Appeals (BVA) where the VCAA is potentially applicable, but was not considered. Indeed, in a recent decision, the Court opined that once it remands a BVA decision for failure to consider or apply the VCAA, the appeal is terminated. See Mahl v. Principi, No. 99-1678 (U.S. Vet. App. June 7, 2001). When this happens, all of the substantive and procedural arguments that pertain to prior VA denials that engendered the appeal are lost. Once the VCAA’s provisions have been complied with on remand, the VA typically will continue to deny the claim on the merits. These denials lead to further administrative and judicial appeals of the very same issues that were originally before the Court. This process may take up to one year or longer.

The point is that Congress should take this opportunity to provide claimants with the option of waiving their rights under the VCAA where the application of the Act will result in meaningless delays. VVA therefore urges the incorporation of specific waiver language within Section 5 of S. 1093.

Sections 6 and 7 of S. 1093 pertain to veterans who are either fugitives from justice or are incarcerated, respectively. First, the bill would preclude the payment or provision of compensation, pension, educational, loan guaranty, vocational rehabilitation or other VA benefits to veterans who have fled to avoid prosecution, custody or confinement after conviction for a felony, or who violates a condition of their probation or parole. While VVA agrees that the Federal government should not subsidize a fugitive’s flight from justice, we take issue with the practical effect of this provision; that is, penalizing the fugitive veteran’s dependents. Pursuant to 38 U.S.C. § 5313, VA benefits that are withheld from an incarcerated veteran may be apportioned and paid to the veteran’s dependents. In such cases, if preexisting, apportioned benefits are terminated because the veteran has taken flight, the lives of innocent dependents would certainly be adversely affected. Consequently, VVA recommends that a provision be added to the new § 5313B to limit the prohibition of benefits to the fugitive veteran, while leaving his or her dependent’s apportioned benefits intact. The risk that some veterans’ families might use their benefits to aid and abet a veteran’s flight is clearly outweighed by the need to support his or her family.

Section 7 of the bill retroactively extends the current limitation on the payment of VA benefits to incarcerated veterans (i.e., 10% maximum if a single or combined disability rating is 20% or higher prior to incarceration, or 5% if the pre-incarceration rating is 10%) who were incarcerated for felonies committed after October 7, 1980, to veterans who were incarcerated on October 7, 1980, for felonies committed prior to that date. Since the bill essentially applies the limitation to all veterans currently incarcerated for felony convictions, VVA has no objection to this provision.

VVA is opposed to Section 8 of S. 1093 in that it presents a more restrictive application of 38 U.S.C. § 3512(b) than is currently in place. Pursuant to 38 U.S.C. § 3501(a), eligibility for educational benefits for a veteran’s spouse arises when the veteran’s service-connected disability becomes permanent and total, when the veteran dies with a permanent and total rating, or when the veteran dies as the result of a service-connected disability. Currently, § 3512(b) provides that the delimiting period within which the availability of educational benefits terminates is 10 years after the latest of these three events. Thus, the spouse of a veteran who died with a permanent and total rating would have previously been eligible as the date of the assignment of the veteran’s permanent and total rating. Nevertheless, the spouse would have a new 10-year delimiting period as of the date of the veteran’s death. Under Section 8 of this bill, the 10-year period would end 10-years from the first event to which eligibility attaches, unless the spouse elects a later date of eligibility. Since the bill would curtail the time currently available for a spouse to receive educational benefits. VVA cannot support this section.

Pursuant to Section 9 of S. 1093, the current limitation on the number of veterans who participate in VA independent living programs would be repealed. Under these programs, veterans with service-connected disabilities who are incapable of vocational rehabilitation may receive VA independent services and living assistance to allow them to achieve the highest possible level of independence. These programs are currently limited to 500 participants each fiscal year, with priority given to those whose service-connected disabilities are the sole cause of their unemployability. This section would limit participation in such programs with the priority only (and no numerical limitation). VVA endorses this action.

Finally, Section 10 of the bill would increase the VA home loan guaranty maximum amount for the construction or purchase of a home from $50,750 to $63,175. This action would allow VA loan amounts to keep pace with the maximum loan amounts administered the Federal Housing Administration (FHA), i.e., $252,000., and is one to which VVA lends its full support.

Vietnam Veterans of America sincerely appreciates the opportunity to present our views on these important pieces of legislation. We believe that they addresses matters of vital concern to veterans, their dependents and the American people. We look forward to working with this Committee and Congress on this and other important issues.

Leonard J. Selfon, Esq., has served as the Director of VVA’s Veterans Benefits Program since September, 1999. In that position, he is responsible for the training and oversight of more than 400 accredited service representatives nationwide, and supervises VVA’s representation of veterans and their dependents before the Board of Veterans’ Appeals and the Federal courts. In addition, Leonard serves as a contributing writer and managing editor of VVA’s publication Veterans Benefits News, which contains the latest information on legislation, regulations and court decisions that affect veterans benefits law. He has also prepared and delivered testimony before Congress concerning a variety of veterans-related issues.

Between 1991 and 1998, Leonard served as counsel to the Secretary of Veterans Affairs, working as a Senior Appellate Attorney in the VA Office of the General Counsel. His primary responsibility was to represent the VA in all aspects of appellate litigation before the U.S. Court of Appeals for Veterans Claims. Upon leaving the VA in October, 1998, Leonard served as a veterans law consultant to both the Veterans Consortium Pro Bono Program and to members of the private veterans bar. He has also had experience in the corporate law sector, having served as legal consultant to a national health insurance carrier.

Leonard is a graduate of the University of Maryland and the University of Baltimore School of Law.

Richard Weidman serves as Director of Government Relations on the National Staff of Vietnam Veterans of America. He served as a medic with Company C, 23^rd Med, America Division, located in I Corps of Vietnam in 1969.

Mr. Weidman was part of the staff of VVA from 1979 to 1987, serving variously as Membership Service Director, Agency Liaison, and Director of Government Relations. He left VVA to serve in the Administration of Governor Mario M. Cuomo (NY) as Director of Veterans Employment & Training for the New York State Department of Labor.

He has served as Consultant on Legislative Affairs to the National Coalition for Homeless Veterans, and served at various times on the VA Readadjustment Advisory Committee, the Secretary of Labor’s Advisory Committee on Veterans Employment & Training, the President’s Committee on Employment of Persons with Disabilities on Disabled Veterans, Advisory Committee on veterans’ entrepreneurship on the Small Business Administration, and numerous other advocacy posts in veteran affairs.

Mr. Weidman was an instructor and administrator at Johnson State College (Vermont) in the 1970s, where he was also active in community and veteran affairs. He attended Colgate University B.A., (1967), and did graduate study at the University of Vermont.

The national organization Vietnam Veterans of America (VVA) is a non-profit veterans membership organization registered as a § 501(c)(19) with the Internal Revenue Service. VVA is also appropriately registered with the Secretary of the Senate and the Clerk of the House of Representatives in compliance with the Lobbying Disclosure Act of 1995.

VVA is not currently in receipt of any Federal grant or contract, other than routine allocation of office space and associated resources in VA Regional Offices and the Board of Veterans Appeals for outreach and direct services through its Veterans Benefits Program (service representatives). This is also true of the previous two fiscal years.