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VETS' LAWYERS TESTIFY OF PROBLEMS WITH DOLE-SHALALA PROVISIONS -- National Organization of Veterans' Advocates:
"Although well-intended, many of these recommendations are
needlessly cumbersome and complex, unfair, and un-workable."
The report of the Dole-Shalala Commission has caused much consternation in the veterans' community. The recommendations are, to put it mildly, devastating.
12/13/2007 Chairman Bob Filner (D-CA) Chairman of the House Committee on Veterans' Affairs conducted a "listening session" to discuss the reports of the Dole-Shalala Commission and the Veterans' Disability Benefits Commission.

NOVA was invited to participate together with the other "stake holders" such as DAV, AL, VVA, PVA, NVLSP and other groups totaling 30 or so participants.

STATEMENT OF RICHARD PAUL COHEN, PAST PRESIDENT AND FUTURE EXECUTIVE DIRECTOR NATIONAL ORGANIZATION OF VETERANS ADVOCATES BEFORE THE UNITED STATES HOUSE OF REPRESENTATIVES COMMITTEE ON VETERANS' AFFAIRS

DECEMBER 13, 2007


MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE:

Thank you for the opportunity to present the views of the National Organization of Veterans Advocates, Inc. ("NOVA") on the President's Commission on Care for America's Returning Wounded Warriors (Dole-Shalala Commission) and the Veterans' Disability Benefits Commission Reports.
NOVA is a not-for-profit § 501(c)(6) educational organization incorporated in 1993 and dedicated to train and assist attorneys and non-attorney practitioners who represent veterans, surviving spouses, and dependents before the Court of Appeals for Veterans Claims ("CAVC") and on remand before the Department of Veterans Affairs ("VA"). NOVA has written many amicus briefs on behalf of claimants before the CAVC and the United States Court of Appeals for the Federal Circuit ("Federal Circuit"). The CAVC recognized NOVA's work on behalf of veterans when it awarded the Hart T. Mankin Distinguished Service Award to NOVA in 2000.
The positions stated in this testimony have been approved by NOVA's Board of Directors and represent the shared experiences of NOVA's members as well as my own fifteen-year experience representing claimants at all stages of the veteran's benefits system from the VA regional offices to the Board of Veterans Appeals to the CAVC as well as before the Federal Circuit.

DOLE-SHALALA COMMISSION REPORT
The President's Commission on Care for America's Returning Wounded Warriors (commonly referred to as the Dole-Shalala Commission) issued a report in July 2007 in which it promoted six recommendations. Generally speaking, these six recommendations sought to improve the services offered to injured service members and their families, to support them in their recovery and return to military duty or to their communities, and to simplify the delivery of medical care and disability programs. Although well-intended, many of these recommendations are needlessly cumbersome and complex, unfair, and un-workable.
At a time when the VA is plagued with a flood of new cases as well as mammoth delays and backlogs, it is a mistake to create a more complex system with multiple classes of veterans. Thus, requiring the VA to distinguish between providing services to veterans who were deployed to Iraq and Afghanistan as opposed to those who fought during WWII, Korea or Vietnam (PCCARWW 9) is unworkable, and more importantly, unfair to older veterans. This is so because a wartime-based class system would in fact result in preferential treatment for our younger veterans, thereby creating needless tension among veterans' groups at a time when support and unity is paramount to a veteran's successful reintegration into his or her community. What's more, such a wartime-service-based class system would only worsen the feelings of abandonment and being forgotten held by many older veterans still waiting for the VA to develop and, or adjudicate their claims for benefits.
Moreover, the Dole-Shalala report's recommendation to distinguish combat-related injuries from non-combat-related injuries (PCCARWW 10) is misguided because to do so would likely place additional hurdles on veterans who served in a non-combat MOS (military occupation specialty) roles during their military service. Creating a distinction between combat related injuries as opposed to non-combat related injuries is akin to the quagmire Vietnam veterans who served with a non-combat MOS currently face when seeking entitlement to certain benefits automatically granted to combat veterans, e.g. benefits related to post-traumatic stress disorder (PTSD). Indeed, just the opposite principle was advanced by the Veterans' Disability Benefits Commission which concluded after 2 years of study that "[b]enefits should be uniformly based on severity of service-connected disability without regard to the circumstances of the disability... ." and that "[s]etting different rates of compensation for the same degree of severity would be both impractical and inequitable." (VDBC 3,98)
Likewise, the recommendation of the Dole-Shalala Commission's recommendation to restructure VA disability benefits to pay for actual loss of earning capacity instead of average loss of wages (PCCARWW 8,25) is at direct odds with the Veterans Disability Benefits Commission's principle number 4 which states that the average impairment of earnings capacity should be an element of compensation for the consequences of a service-connected disability (VDBC 3,230). The Dole-Shalala recommendation fails to recognize the VA's time honored understanding "that impairment is not specifically linked to an individual veteran, his or her skill set, and the ways a particular injury or disease affects that individual's ability to maintain gainful employment". (VDBC 203) Moreover, if implemented, this restructuring would require the already overworked VA to embark on a burdensome program of income record collection and analysis, and in many cases, would require the VA to speculate how much a veteran is able to earn in the absence of actual earnings. Similarly, the Dole-Shalala Commission's criticism of income replacement as a disincentive ( PCCARWW 23) ignores the VA's decades-long experience of providing financial assistance to veterans who receive income replacement while they work.
Finally, instituting a mandatory three year review of disability ratings (PCCARWW 7) is unjustified and eliminates the concepts of Total and Permanent disability ratings (see, 38 C.F.R. §§ 6.18, 3.340(b)) and protected ratings (see 38 U.S.C.S. § 110; 38 C.F.R. § 3.951(b)). Neither the increased cost of the periodic reviews nor the expected saving by reductions of some ratings justify this change.
VETERANS' DISABILITY BENEFITS COMMISSION REPORT
In October 2007, the Veterans' Disability Benefits Commission (VDBC) issued a comprehensive report after a two-and-a-half-year study of the benefits and services currently provided to our country's veterans. Contrary to the suggestions of the Dole-Shalala Commission, many of the VDBC's recommendations make sense and would provide helpful, meaningful assistance to veterans. However, as explained in more detail herein, some of the VDBC's recommendations would prove detrimental to veterans seeking disability benefits from the VA.

VDBC Recommendations Supported by NOVA:
1. Compensation for loss of usual life activities and loss of quality of life-R 4.1,7.6
As envisioned by the VDBC, quality-of-life includes non-work aspects of disability, such as how well someone can function in everyday life and how they feel about their situation. The VDBC accepts the finding of the CNAC that the quality of life of service-connected veterans is, on average, significantly lower than the quality of life of the general population. (VDBC 250) In view of the difficulty and time required to adequately research how to measure end rate loss of quality of life, the Commission's recommendation of utilizing an interim approach to increase compensation rates 25% as a baseline benefit for loss of quality of life is reasonable. ( VDBC 253-254)
2. Elimination of three key obstacles facing veterans and or their families.
The VDBC recommends eliminating the current ban on concurrent receipt of benefits for all military retirees. (VDBC 199; R 6.14) The Survivor Benefit Plan/Dependency and Indemnity Compensation offset for survivors of retirees and in-service deaths ( R 8.2) and the current ban which prohibits surviving spouses and, or dependents from continuing a claim begun by a veteran who has passed away while his or her claim was pending. ( R 8.3) The VBDC's recommendation to do away with all three of these bans is equitable and long overdo. Eliminating these bans would go a long way in relieving the financial burden facing veterans and their families. (VDBC 300) Also, allowing severely injured veterans to receive Social Security Disability Benefits without meeting the requirements of quarters of coverage (VDBC 9,279; R.10.16) would correct an inequity and provide these worthy veterans desperately needed income. Additionally, it is wholly fair and sensible to eliminate Tricare deductibles and co-pays for the severely injured (VDBC 365, R.10.17) and to provide TSGLI coverage without cost to service members (VDBC 180, R 6.6) as a cost of war and national defense.
3. Increased compensation for Special Monthly Compensation, Aid and Attendance, Auto and House Adaptation and ancillary benefits and providing care giver allowance. ( R 6.1,6.2,6.4,6.5,7.8,7.9,7.13, 8.1)
These are necessary to more accurately reflect the realities of the difficulties veterans and their care givers face in living with their disabilities. Moreover, increasing funding for fee based VA medical care is long overdo. (VDBC 178)
4. Regular and Consistent Training for All VA Personnel
Training for VA raters ( R 4.8,4.9,4.14), training for Regional Office staff ( R 9.5) and training for clinicians who conduct psychological evaluations ( R 5.32,5.33) are essential for better decisions for veterans' claims, especially with respect to those claims based on complicated or less-understood medical conditions. As acknowledged by the Commission, ( R 9.1,9.3,9.5), without increased resources to hire and train more employees to develop and rate claims, as well as to process the actual grant of benefits, the VA will only fall further behind in its attempts to adjudicate claims in a timely manner and the claim backlog will simply increase exponentially.
5. Provide claim specific information to the veteran
Another pervasive problem highlighted in the VDBC's report is the VA's failure to provide meaningful and helpful information to veterans (VDBC 336-338). In recognition of that problem, NOVA fully endorses detailed attention and, where necessary, complete changes to the requirements of the Veterans Claims Assistance Act (VCAA) so veterans will know what is necessary to support their claims. As a result, the VA would be required to provide claim-specific information to each veteran concerning the evidence necessary to support their particular claim. (VDBC 336-338) This would greatly assist veterans proceeding pro se who oftentimes are ill-informed as to what evidence is needed to support a claim.
6. A Simplified and Expedited VA Claims Process
A simplified and expedited process for fully-developed and documented claims could likely reduce the VA claims backlog by 50 percent within 2 years ( R 9.1) should go a long way to remedy the unjustified delays in the system. However, when a veteran submits a claim which requires additional VA assistance in its evidentiary development, that veteran should not be penalized in any way. The Commission's recommendation in this area seems somewhat misinformed because, in many cases, a veteran is not able to file a well-documented claim at the outset. Yet, by submitting a claim a veteran preserves the earliest effective date thereby providing essential past due benefits to the veteran once his claim is finally granted. For example, in a claim for service-connected benefits based on PTSD, a veteran may need to locate and obtain buddy statements, unit records, Morning Reports and Lessons Learned documents and, or evidence that can be very hard to track down and virtually impossible for a veteran to submit along with his or her initial claim for benefits.
7. Re-Alignment of the Disability Evaluation Process Employed by DoD and the VA
Currently, situation abound where the Department of Defense finds service members unfit for duty, assigns a zero-percent disability rating, and discharges them from service. Then, immediately thereafter, as a veteran, the service member is evaluated by the VA and assigned a different and higher rating. Recognizing this incredible disparity, the Commission has wisely recommended that the disability evaluation process be realigned so that when an active duty member is found unfit for duty, he or she is then automatically referred to the VA for a disability rating. (VDBC 259, 260, 265 267; R 7.13). Note, however that the success of this recommendation depends upon effective file sharing and increased resources to allow the VA to deal with in increased demand for ratings.
8. Revising and Updating the VA's Schedule of Ratings
Updating the Schedule of Ratings to use a classification system based on the International Classification of Diseases and the Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) ( R 4.19,4.20, 4.23, 5.28), and updating the exam worksheet ( R 4.4) will make it easier for physicians, psychologist and other health care professionals to provide meaningful evaluations for use by raters. Further, recognizing that veterans who are unable to work as a result of their service connected impairments should be accommodated within the rating system without the need for unemployability ( R 7.5) should reduce claims backlogs by encouraging realistic ratings end eliminated the need for many applications for unemployability. This is consistent with the recognition that the increase in grants of awards for unemployability is not due to veteran manipulation. (VDBC 238) Indeed, the Commission approved CNAC"s finding that statistics that show that 28% of veterans who are rated unemployable have musculoskeletal disorders and 29% have PTSD. These statistics highlight an implicit failure of the rating schedule to address the true severity of the veteran's disability. (VDBC 238) That veterans receiving unemployability benefits from the VA are truly disabled is also demonstrated by the fact that 61% of them receive Social Security disability benefits. ( Figure 7.16;VDBC 240)
VDBC Recommendations Opposed by NOVA:
1. The Elimination of the GAF Scale Scores in re PTSD Claims
It is fundamentally illogical and impractical for the Commission to recommend abandonment of the Global Assessment of Functioning scale in evaluating the severity of PTSD ( R 5.31) because that scale is inherent in the diagnostic criteria contained in the DSM-IV and is essential for treatment. For example the DSM-IV TR states at page 32 regarding the GAF which is listed in Axis V that "Axis V is for reporting the clinician's judgment of the individual's overall level of functioning. This information is useful in planning treatment and measuring its impact, and predicting outcome. ...The GAF scale may be particularly useful in tracking the clinical progress of individuals in global terms, using a single measure."
2. PTSD-Related Recovery Incentives
Similar to eliminating the used of the GAF Scale as part of the evaluation of PTSD, the Commission's recommendations for utilizing healthcare benefits as an incentive for recovery from PTSD, and a 2-3 year reevaluation ( R.5.29,5.30,VDBC 154) demonstrates the Commission's lack of understanding of and empathy for the frustration experienced by those veterans who suffer from the symptoms of intractable, and chronic PTSD. Moreover, the recommendations carry a significant risk of creating disincentives for veterans suffering from PTSD to seek medical treatment or rehabilitation services. (VDBC 151) Recommendations regarding vocational rehabilitation ( R 6.9,6.10,6.13) are meritorious provided that they are not implemented with a lack of understanding that severely disabled veterans, like severely disabled Social Security Disability recipients, may never be able to return to work and that their rehabilitation should be confined to enabling them to live as independently as possible. ( VDBC 194)
3. Age-Based disability Benefits Scale
Revising the existing payment scale based on the veteran's age at the date of the initial claim ( R 7.1) appears to conflict with a the Commission's statement that it "does not concur with the recommendation" to investigate whether to including factors such as the veteran's age would improve the ability of the rating schedule to predict earnings losses. ( VDBC 235) Review of Tables 7.2, 7.3 (VDBC 226,227) support the conclusion that veterans who enter the VA disability system up to age 55 do not present a problem in terms of income parity. Moreover, 54.6% of veterans receiving initial VA disability awards are 55 years old or younger. ( VDBC 101, Table 5.2) A policy of considering age or other vocational factors in payments for individual rating determinations is unjustified and unfair to our WWII, Korean War and Vietnam veterans and to officers who are generally older than the enlisted troops under their supervision. Indeed, the Veterans Disability Benefits Commission specifically stated that it "does not support a policy of considering age or other vocational factors in individual rating determinations" and does not believe that including factors such as age would improve the ability of the Rating Schedule to protect earnings losses. (VDBC 235)
4. Military Discharge-Related Recommendations
The Commission's recommendation to change the character-of-discharge standard to bar a veteran from all benefits where the veteran's discharge from the last period of active service is a bad conduct or dishonorable discharge ( R 5.1) is unduly harsh and is contrary to the time-honored policy of liberalization instituted by Congress. (VDBC 96) Similarly, the recommendation to change the time honored standard of "association" for determining presumptive service connected conditions to proof of causation ( R. 5.12, 5.14) is unjustified. Thus, not only did the Commission fail to recognize that the Nehmer case and the Agent Orange Act of 1991's utilization of the positive association test (VDBC120), but the Commission, while rejecting the association test, approved of using the attributable fraction and relative risk criteria both of which utilize association between the persons exposed and the risk to make calculations. (VDBC 125). Because of the benefit of the doubt and the difficulty of timely determining the cause of a disease, the association test must be retained if veterans are to receive timely compensation for service connected diseases.