TESTIMONY OF JOHN McNEILL, ASSISTANT DIRECTOR VETERANS BENEFITS POLICY NATIONAL VETERANS SERVICE VETERANS OF FOREIGN WARS OF THE UNITED STATES BEFORE THE SUBCOMMITTEE ON BENEFITS COMMITTEE ON VETERANS AFFAIRS UNITED STATES HOUSE OF REPRESENTATIVES WITH RESPECT TO H.R. 3193, Duty to Assist Veterans Act of 1999 WASHINGTON, DC MARCH 23, 2000
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE: Thank you, Mr. Chairman, for the opportunity to testify today concerning H.R. 3193, Duty to Assist Veterans Act of 1999, to amend Title 38 United States Code Chapter 51 in reaffirming past Congressional intent on the very important "Duty to Assist" principle that claimants for veterans’ entitlements have as an integral part in the development of their claims with the Department of Veterans Affairs (VA). This bill will reestablish an enforceable right, given the full force and effect of law, which has had its true meaning recently diluted and rendered ineffective as a result of what we believe to be misguided jurisprudence policy-making. Legislation is now immediately required to "fix" the current intolerable situation concerning the inability of veterans to achieve an artificial and extremely high threshold of proof, as now imposed on the VA and the veteran claimant through the mandate from the Court of Appeals for Veterans Claims (CAVC or the Court; previously identified as the Court of Veterans Appeals) in Morton v. West, 12 Vet.App. 477, 486 (1999), just to well ground a claim before even the minimum of government assistance can be provided to that veteran. The problem is expressed well and directly as a legislative priority goal by the VFW Department of Florida. "Stop the [VA] from mailing out to our veterans a letter stating they can not (sic) assist a veteran unless he has a ‘Well grounded Claim’. Most of our veterans do not understand what the VA is stating. The [VA’s] letter does not tell the veteran where he can get the documents that are required to start the ‘well grounded claim’ … the VA will not do anything to assist a veteran with the development of evidence and/or the claim until the veteran has submitted, with no help from the VA, a claim considered ‘well grounded’ by the VA … [t]his create[s] a greater backlog on a system that is … already too clogged up. [We] thought the VA mission [is] to help the veteran. If not, then stop advertising this fallacy. Support [H.R. 3193] to correct this problem." (Emphasis in original.) This description is of a system now seemingly to be the antithesis of one steeped in Congressional history to be a benevolent method of support for this great Nation’s veterans. That description is further reinforced by a January 31, 2000 letter from a VA regional office to a veteran in his attempt to file a claim of service connection for hearing loss and tinnitus as a result of combat action. The letter listed what had to be provided by the veteran before his claim could be considered. It stated "1) Please submit new and material evidence for your hearing loss, one year old or less[;] 2) Medical evidence that your tinnitus currently exists[;] 3) A doctor’s statement that the condition is related to an injury or disease you had in service[; and,] 4) Medical evidence linking the two items." The claimant was then informed "[i]f the evidence is not received within 30 days, your claim will be considered on the basis of the evidence we already have …", thus leaving the impression that a final decision will be rendered in that time frame. There was no mention that, under the provisions of 38 U.S.C. § 7105(b)(1) and 38 Code of Federal Regulations § 20.302(a), the veteran could still protect the original effective date if he submitted the evidence within (actually) one year. Regrettably, with such short notice of 30 days and faced with the magnitude of the evidence being required, a veteran could become easily discouraged and give up hope of any further attempt to achieve service connection. Thus, rectifying the current unfair and unjust situation of the VA’s inability (indeed, "hands-off" approach) toward assisting a veteran in an attempt to establish a well-grounded claim is now the most important veterans’ benefits legislative priority goal for the Veterans of Foreign Wars of the United States (VFW). Accordingly, we strongly support H.R. 3193 as the necessary means of correction but we also propose one short albeit vital recommendation to the bill, which we will discuss later in this testimony. As stated on pages 47-48 in the recent Independent Budget for the Department of Veterans Affairs for Fiscal Year 2001, of which the VFW is a co-signer, to achieve the public purposes behind the veterans’ programs, the primary goal is to ensure veterans receive all benefits to which they are entitled. Consistent with that goal, Congress designed a simple and helpful claims processing system in which the government assumed the responsibility of assisting veterans in gathering the proper and necessary evidence to substantiate their claims. VA’s duty to assist arises out of its long tradition of ex parte proceedings and paternalism toward the veteran. Connolly v. Derwinski, 1 Vet.App. 566 (1991). When it authorized judicial review in November 1988, Congress adopted and codified in statute (38 U.S.C. § 5107(a)) this long-standing "Duty to Assist" principle along with a liberal standard of proof to ensure its continuation. The Court first provided a definition of "well grounded claim" in Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). As noted by the Court in Murphy, a well grounded claim is neither defined by 38 U.S.C. § 5107(a), nor by legislative history. (That notation is also applicable for the 38 C.F.R.; it is into this void that the Court came quickly.) Therefore, in giving a "common sense construction", the court stated that "[a] well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." (Emphasis added.) The Court went on to state that once a claimant has "submitted evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded," the claimant’s initial burden has been met, and the Secretary is then obligated to assist "in developing the facts pertinent to the claim." Id., 78, 81-82. Thus, the Court’s initial interpretation and definition had no direct impact on the Duty to Assist principle and was accepted as a "common sense" approach. In a number of decisions issued following Murphy by both the Court of Veterans Appeals (now the Court of Appeals for Veterans Claims) and the Court of Appeals for the Federal Circuit, the courts have substantially refined (or redefined) the definition of what constitutes a "well grounded" claim beyond it merely being a plausible claim. (Actually, it is easy to characterize this redefining as now making a well grounded claim a definitive claim for service connection, as opposed to being "plausible".) In Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the Court held that a physician’s opinion that the veteran’s death "may or may not" have been averted, if medical personnel could have effectively intubated him, was speculative and not sufficient to well ground the veteran’s widow’s claim for death benefits. This was the first time that the factor of "speculation" entered the picture in the issue of well-grounding a claim, and it made for a continuing "Catch-22" situation for the veteran, as will soon be shown. But, let’s return to the history. Next, the decision Grottveit v. Brown, 5 Vet.App. 91 (1993), required medical evidence to well ground a claim where the determinative issue involves medical etiology or medical diagnosis. One of the most momentous decisions was Caluza v. Brown, 7 Vet.App.498 (1995), where the Court set forth three steps that generally are required by the veteran in order to present a well grounded claim. These are: (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post-service continuity of symptomatology; and, (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. (The second and third steps, however, could be satisfied under the provisions of 38 C.F.R. § 3.303(b).) Indeed, at this time, the situation on well grounded claims was still manageable for veterans. This was because the VA still provided some form of the duty to assist mission (most notably, a compensation and pension examination for claims that such an exam would help resolve some doubt of a medical diagnosis). However, that changed dramatically when the courts substantially refined the definition of what constitutes a well grounded claim beyond it merely being a "plausible" claim. In Epps v. Gober, 126 F.3d 1464 (Fed.Cir. 1997), cert. Denied sub nom. Epps v. West, 118 S. Ct. 2348 (June 22, 1998), the Federal Circuit court adopted, as one that properly expresses the meaning of the statute, the then-named Court of Veterans Appeals’ definition of a "well grounded" claim: "[f]or a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in[-]service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service [disease or injury] and the current disability." If there was any lingering doubt as to what the courts meant, all of it was effectively erased with the CAVC’s decision in Morton. The point of speculation in a medical opinion soon became critical in relation to the third step in Caluza. (And, it has now become the "Achilles Heel" in a veteran’s attempt to well ground a claim.) While a speculative medical opinion will not be sufficient for purposes of establishing a well grounded claim, the determination as to whether a medical opinion is or is not "speculative" is not clear or easy to make. As stated by the Court in Lee v. Brown, 10 Vet.App. 336 (1997), while the Court had previously held that statements from doctors which are inconclusive as to the origin of a disease cannot fulfill the "nexus" requirement to ground a claim, "use of cautious language does not always express inconclusiveness in a doctor’s opinion on etiology, and such language is not always too speculative for purposes of finding a claim well grounded. It follows then, that an etiological opinion should be viewed in its full context, and not characterized solely by the medical professional’s choice of words." However, the Court also previously stated that unenhanced reports of a history transcribed by a medical examiner does not constitute "competent medical evidence" for purposes of establishing a well grounded claim. LeShore v. Brown, 8 Vet.App. 406 (1995). To further confuse the issue of a well-grounded claim, the Court, in the decision Hicks v. West, 12 Vet.App. 86 (1998), stated that "[w]ord parsing in some of its medical nexus cases has created a unclear picture for ascertaining what degree of certainty is necessary in a medical opinion in order to establish a plausible medical nexus." With those judicial findings and definitions on speculative medical opinions in relation to establishing a medical nexus, how can a veteran -- who is a novice to the system -- possibly understand what is now being required of him in order to well ground his claim? It is thus the third step in Caluza that is causing all the current problems. For instance, the Board of Veterans Appeals, in many of its decisions following Caluza, ruled that only a (non-speculative) medical opinion sufficed to provide the nexus between the current disability and the appellant’s military service. This equates to a higher and unduly restricted standard of evidence being required to well ground a claim that seems inconsistent with prior intent of the Congress. (It is interesting to note that nowhere do VA regulations provide that a veteran must only establish service connection through medical records alone. For example, see Cartright v. Derwinski, 2 Vet. App. 24 (1991).) Now the whole VA, since Epps, is demanding a private medical opinion to create the nexus needed to well ground a claim. (It has to be a private medical opinion because of the ruling, previously in Epps then reinforced in Morton, that the VA cannot assist a claimant who has not submitted a well grounded claim.) This has created a strict standard being applied for claims that must first be well grounded. We say strict because when the veteran happens to provide a medical opinion in an attempt to meet the nexus requirement (the Caluza third step), it is often ruled as being merely a recitation of the veteran’s medical history, and therefore speculative, because the physician making the opinion did not have access to the veteran’s service medical records so that a complete and comprehensive opinion could be rendered. But, how can the veteran be responsible to obtain and provide a copy of the service medical records to the private physician? Why is the veteran expected to have the knowledge of this requirement by the VA (in response to the Court’s mandates)? (Thus, the Catch-22 situation!) This has become an unreasonable shifting of the burden of proof to the veteran far beyond what we surely believe Congress ever intended to occur. It is evident, in our opinion, that the Court of Appeals for Veterans Claims (and where affirmed by the U.S. Court of Appeals for the Federal Circuit) in recent years has progressively interpreted the controlling statute, 38 U.S.C. § 5107(a), to such a narrow point as to now preclude the Secretary from assisting any claimant at all prior to a claim being "ruled" well grounded. Where a well grounded claim has always previously been the veteran’s ultimate burden of proof, the courts have now changed it into a preliminary burden upon the veteran. Worse yet, the courts’ further definition of what requirements constitute a well grounded claim, has established such a high hurdle for the common veteran, that it defeats the purpose of Duty to Assist. Veterans are refused any government assistance until they first accomplish unassisted the very thing for which that government assistance is most needed. If veterans are unsuccessful in achieving the basically unrealistic standards now imposed by the court, their claims are summarily denied without any consideration of the true merits and without any meaningful opportunity to receive the benefits they may very well rightfully deserve. This is also an inefficient use of resources. Prior to the courts’ intervention in this matter, the VA previously controlled an orderly process by assuming the responsibility of obtaining military records, VA records, and (especially) records from private sources once those records were identified by the veteran. All the evidence was concurrently obtained and reviewed with an immediate judgment as to whether any additional evidence was also needed before a decision could be made. There was no reliance on the veteran "guessing" as to the appropriate and pertinent evidence required to properly adjudicate the claim. The VA, through their control of the process, was thus assured that all conceivable evidence was obtained before making a decision effecting the entitlements of the veteran. The current procedure now leaves it to chance that the veteran will have the ability to obtain all necessary records, be sufficiently knowledgeable to properly and efficiently negotiate (unassisted) the claims process, and then provide the evidence to well ground the claim just so the VA can then make a second de novo review on the merits of the claim. This could even include a subsequent determination that additional evidence is required before a final decision can be rendered. A simple one-step process has evolved into one of multiple tiers depleting the resources of the VA by duplicating the development process. (It is ironic to note here that the Court, in Grivois v. Brown, 6 Vet. App.139 (1994), justified their ruling on well grounded claims by stating that "implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay those claims which -- as well grounded -- require adjudication". We are not so sure that the Court has the jurisdiction to state such a concern. Adequate resources, and the application of those resources, are the domain of the Secretary of Veterans Affairs and this Congress.) Procedural matters now dominate the VA process because of court-imposed mandates resulting in confusion and disputes over basic things, such as the procurement of private medical records to support a claim. The current process benefits neither veterans nor the government. The real merits of veterans’ claims have become secondary to the procedural maze the courts have created with the formalities they have imposed on the process. As can be readily discerned from this discussion, this is really more of an issue on the "Duty to Assist" principle or, more precisely, with the court’s ruling as to when the VA can assist a veteran in the development of the claim. Throughout the court’s historical jurisprudence on well-groundness up until Morton, the VA was able and actually willing to provide at least partial assistance prior to a final determination of whether a claim was well grounded. This mainly consisted of requesting and obtaining private medical records (upon the veteran filing a VA form 21-4142, Authorization for Release of Information) and scheduling a Compensation and Pension examination, primarily in those cases where a veteran never previously had such an examination or it would help fill a void from the information in the claimant’s medical records. Consequently, the system was still functioning in a reasonable manner of benevolence to the veteran claimant. The court emphatically killed this with its decision in Morton by mandating that there cannot be any Duty to Assist mandate (and therefore any actions) on the part of the VA until the claimant achieved a well grounded claim. That meant an austere meeting of the three steps articulated in Caluza. But, as we have already stated, it has now become a very difficult process for the veteran, on his own efforts, to negotiate the obstacles as established in decisions by both the Board of Veterans’ Appeals and Court of Appeals for Veterans Claims for meeting the third step of Caluza. A concern has been raised that there should be some type of initial threshold established as a standard to be met in filing a claim or the VA will become overwhelmed in its Duty to Assist obligations by needlessly expending resources on frivolous claims. The question has been raised as to whether H.R. 3193 will allow that to happen. While that concern is a viable one, we just don’t see that as being a sufficiently serious problem to maintain a system (in comparison) that presently makes all veterans achieve an unreasonable standard prior to receiving any government help. In our opinion, there are far more claims that, with some VA assistance, could easily mature into ones with great merit but presently never are able to establish well-groundness because the veteran-claimant becomes easily discouraged or hopelessly lost trying to obtain pertinent medical records, or harder yet, an adequate medical opinion. Further, we have never seen any statistics that indicate that the filing of frivolous claims is an impediment toward the efficient operation of the veterans’ claims processing system. The Veterans’ Claims Adjudication Commission (VCAC), in its December 1996 report, attempted this through its elaborate and eloquent discussion on what was described as "repeat" claims (section 4 of Part I; pages 69-87). But, that discussion had a serious flaw to it – it combined what are two very distinct types of claims into one category. That combination was what is a claim for an increased rating evaluation (which is automatically a well grounded claim, as the court defined in Proscelle v. Derwinski, 2 Vet.App. 631-632 (1992), with those that are further attempts to "reopen" previously denied claims to achieve service connection. Once those two types of claims are separated and we concentrate solely on the second category of reopened claims for service connection, then the concern is drastically mitigated of the system becoming overwhelmed with frivolous claims. We are not that naïve to the realization that there are some that continually use ("abuse" may be a better word) the system in numerous attempts to "get something" from the government. But a reopened claim for service connection is the easiest to adjudicate requiring very little in the way of (both time and people) resources and written justification toward again denying the claim. That is because the claimant must provide "new and material" evidence from that already contained in the record just to have the VA perform a de novo review of the whole record and make another decision on the overall merits for now achieving service connection. The new and material evidence is actually a much higher standard and threshold to achieve than even the current one for well-groundness. 38 C.F.R. § 3.156(a). Elkins v. West, 12 Vet. App. 209 (1999). (There is another important, final matter that needs to be stated. While we are criticizing the court for going beyond what we believe is their jurisprudence jurisdiction on the issue of well grounded claims and its relationship to the VA’s Duty to Assist mandate, the Court (and, accordingly, the establishment of judicial review) has been one of the most significant and beneficial events in the history of the veterans’ entitlements program. Notwithstanding all the problems associated with the well-grounding of claims, once a veteran is able to have a claim judged on its merits, there is no better time ever in the history of veterans’ claims processing than the present for that veteran to receive a fair and just decision.) Accordingly, H.R. 3193 is currently one of the most important legislative initiatives in recent years. We have, however, a recommendation for additive language to one of the inclusions in subsection (b) of Section 5103A. In subsection (b)(5), we suggest that the words "of this title" at the end of the subsection be deleted and the following words substituted "or who is attempting to achieve service connection under the provisions of section 1154(b), both sections of this title". The reason for this addition is that throughout the history of the veterans’ claims processing system, there has been only one "class" of veterans that has an elevated status – and that is a veteran who has been involved in combat action. There are good reasons for this: for instance, the rigors of combat increase the chances that records can be destroyed, lost or incomplete. (There is an excellent discussion of this credo by the U.S. Court of Appeals, Federal Circuit in Jensen v. Brown, 19 F.3d 1416-1417. See also Smith (Morgan) v. Derwinski, 2 Vet.App. 139-140 (citing H.R. Rep. No. 1157, 77th Cong., 1st Sess. (1941), reprinted in 1941 U.S.C.C.A.N. 1035) and Caluza, 507-508.) If there are going to be specific examples listed in H.R. 3193 -- and we agree with the one example already in subsection (b)(5) -- then the very first one must be for the combat veteran. Thank you, Mr. Chairman, for allowing us to testify today and I am prepared to address any questions. Back to Witness List |