HIGHLIGHTS of Mr. Dobmeier's address to the Veterans' Affairs Committee.
FULL SENATE ADDRESS

Atomic Veterans
Claims Processing
US Court of Veterans Appeals
Health Care
Access to Technologies for Veterans with Physical Disabilities
Third-Party Collections
Concurrent Receipt of Military Longevity Retired Pay and VA Disability Compensation
Homeless Veterans
50th Anniversary of the Korean War

STATEMENT OF MICHAEL E. DOBMEIER, NATIONAL COMMANDER OF THE DISABLED AMERICAN VETERANS BEFORE THE COMMITTEES ON VETERANS' AFFAIRS, U.S. SENATE/U.S. HOUSE OF REPRESENTATIVES, WASHINGTON, D.C.

MARCH 1, 2000

MESSRS. CHAIRMEN AND MEMBERS OF THE VETERANS' AFFAIRS COMMITTEES:

     As National Commander of the more than one million members of the Disabled American Veterans (DAV) and its Auxiliary, it is an honor and a privilege to appear before this joint meeting of the United States Senate and House of Representatives Veterans' Affairs Committees to discuss the agenda and major concerns of our nation's service-connected disabled veterans, their families and survivors.

     Messrs. Chairmen, I wish to thank you and your committees for the support you have given to veterans and their families during the first session of the 106th Congress...

     ...In our nation of vast riches and resources, there is a group of men and women whose service to our country has never ceased, but sadly has gone unheeded for far too long...

     These brave men and women have served our country and protected our freedoms with honor and pride while in uniform in bases and camps across this country,...Many who served and sacrificed still bear the scars of those battles in defense of our liberty.

     While we can never fully repay those who have stood in the nation's defense, a grateful nation has established a system to provide benefits and health care services to veterans as a measure of restitution for their personal sacrifices and as a way for all citizens to share the costs of war and national defense.

     Unfortunately, disabled veterans continue to pay more than their fair share of that burden. And the system designed to provide them with the benefits and health care services earned in service to our country needs fixing.

     Delays in the delivery of benefits and health care services continue to cause undue hardships for disabled veterans and their families...

     More highly trained individuals are needed in Compensation and Pension (C&P) Service to adjudicate claims correctly the first time. Much of the needless delays occur because veterans must appeal incorrect claims decisions. Literally, years can be wasted in obtaining a final decision, which, in some cases, is not based on the merits of the issue.

     After four consecutive years of a flat-lined budget, VA health care is at a critical stage... There are proposals to reduce the already critically low levels of health care providers to further unacceptable levels...

Service-connected disabled veterans must wait too long now to receive necessary services. Further delays can and will not be tolerated. Our government has the resources to adequately care for our nation's sick and disabled veterans—now is the time to fulfill this commitment...

     These services aid veterans directly and support and augment VA programs. We are able to do so only with the continuing support of an American public that is grateful for all that our veterans have done. Our commitment to America's service-connected disabled veterans and their families is unyielding.

...These men and women count on you to ensure that their sacrifices and service are remembered when it is time for our government to slice the budget pie to pay for discretionary programs. It is their sincere hope that you will educate and remind your colleagues of their service and sacrifice when it is time to decide whether to honor America's obligation to veterans and their families or to let parochial concerns control.

     Two words come to mind in summing up the relationship between our government and its veterans: broken promises...

     Now, when we seek adequate funding levels for veterans programs from our government, we are told that our requests are too costly and our demands are not reasonable. Yet, the total funding for veterans' programs—$43 billion—is a small fraction of the total U.S. budget—$1.7 trillion—a mere 0.025 percent. Nor are veterans' programs mentioned when the Administration and Congress talk about spending a portion of the surplus or saving government programs, such as Social Security or Medicare, for future generations of Americans.

     It is not unreasonable that we should seek adequate funding for the proper and timely delivery of health care services and benefits,...

     We do not feel that we are unreasonable in our request for adequate funding. We are the men and women who have, and are, bearing the scars received in defense of our cherished freedom. We are the ones who have borne an unfair share of the heavy burden that has finally placed our nation's fiscal house in order. We have borne the scars and burdens willingly because our efforts continue to be in the best interests of our nation and its citizens. However, we cannot and will not sit idly by while others receive benefit from the fruits of our sacrifices, while our sick and disabled comrades are forced to undergo long delays in the administration of health care services and compensation benefits.

     Recently, the Congressional Budget Office has projected a 10-year budget surplus of $2 trillion. This recalculated, non-Social Security surplus, is double the amount projected last year. We realize that much of the surplus will be used to pay down the debt; however, we also know that Congress and the Administration will use some of this money for pork-barrel politics and new initiatives. All we ask is that Congress and the Administration, first and foremost, remember our government's commitment to its veterans. There are too many broken promises that need to be fulfilled before our government invents new initiatives.

     Let's look at some of these broken promises. It is our hope that this Congress will take action to ensure that our government keeps its long-standing commitment to assist our nation's service-connected disabled veterans and their families.

ATOMIC VETERANS

     A group of American servicemen who were deliberately exposed to ionizing radiation during the Cold War era—atomic veterans—have been almost totally ignored by our government. While there was favorable legislation passed in the mid-1980s, for the most part, these atomic veterans and their survivors have not been able to obtain the justice they so richly deserve.

     Deliberately placed in harm's way by their government, studies show that atomic veterans have a higher death rate from leukemia, and higher rates of certain cancers. A study by the Institute of Medicine (IOM) found a 20 percent higher risk of fatal prostate cancer, 160 percent higher rate of fatal nasal cancer, and a 50 percent higher rate of fatal leukemia in some participants of tests in Nevada—a 14 percent higher risk of fatal leukemia among all atomic veterans.

     The DAV has urged Congress for many years to add certain conditions to the list of presumptive disabilities for veterans exposed to ionizing radiation—a position consistent with statements made by the IOM study director, Dr. Susan Thaul. She alluded to the crucial missing data on the levels of radiation received by veterans, and stated that the results of the study could be used to formulate policy for presumptive disabilities for veterans and survivors. She noted that the list of presumptive disabilities should be expanded.

     In fact, former VA Under Secretary for Health, Dr. Kenneth W. Kizer, said in an April 21, 1998 memo to VA Secretary Togo D. West, Jr., that there was no justification to keep radiogenic diseases off the presumptive list. Dr. Kizer made this statement in response to legislation introduced by Senator Paul D. Wellstone which would have added 10 radiogenic illnesses to VA's list of presumptive disabilities resulting from exposure to ionizing radiation.

     With only about 500 compensation claims approved by the VA, out of about 20,000 claims [2.5%] filed for residuals of exposure to ionizing radiation, it is clear that atomic veterans are having their claims adjudicated by standards that make it impossible for them or their survivors to receive favorable outcomes. Let us work together to remove the bureaucratic nightmare that faces atomic veterans and their survivors.

     It is difficult to ignore the inconsistencies in the treatment of atomic veterans and civilian workers at nuclear power plants. Recently, the Administration has been lobbying for legislation to compensate civilian workers exposed to nuclear material. Legislation for civilian workers includes many of the so-called "radiogenic" diseases that the DAV and atomic veterans have been attempting to have Congress include in the list of presumptive disabilities for atomic veterans. Where is the justice for atomic veterans? Why does our government continue to treat veterans like second-class citizens?

     Now is the time for Congress to act to correct this great injustice. Now is the time for Congress to move favorably on legislation to include all "radiogenic" diseases in the list of presumptive disabilities. The members of the DAV call upon the Veterans' Affairs Committees to take action to increase the list of presumptive disabilities for atomic veterans, to include: lung cancer, bone cancer, skin cancer, colon cancer, posterior subcapsular cataracts, nonmalignant thyroid nodular disease, ovarian cancer, paraythyroid adenoma, tumors of the brain and central nervous system, and rectal cancer....

CLAIMS PROCESSING

     The Administration's budget proposes to increase staffing levels for claims processing...

     We believe, however, any gains from increased staffing will be more than offset by losses in efficiency and productivity as a result of court-imposed procedures with well-grounded claims. One of the most counterproductive obstacles to efficient and fair claims processing today is one created through a misinterpretation of law by the United States Court of Appeals for Veterans Claims. Congress designed VA's benefits delivery system to be informal and helpful so a veteran entitled to compensation for disabilities incurred in military service to our nation, for example, would not be met by a passive, indifferent, resistant, or contentious bureaucracy, or have to pay part of his or her modest disability benefits to an attorney just to get what the veteran was rightfully due. VA has carried out that policy toward veterans by assuming the obligation to assist veterans in filing and prosecuting their claims, identifying and gathering pertinent evidence, and making it VA's duty to apply all relevant laws and regulations so that the veteran receives every benefit supported in law.

     A premise for the requirement that VA fully assist the veteran in obtaining the evidence necessary to substantiate the claim was that the veteran—often sick and physically or mentally disabled—lacked the understanding and resources to deal with the regimented bureaucracy or institutions from which records must be obtained. The spirit of assistance, as well as efficiency, demanded that VA negotiate these processes for the veteran. This duty to assist the veteran or family members, has been the cornerstone of the benevolent system of benefits Congress established for America's veterans.

     Another unique aspect of the VA benefits system is its liberal burden of proof. Unlike adversarial litigation, no opposing interest is involved in VA claims. Therefore, VA grants the benefits sought where the evidence supporting the grant is at least as persuasive as any evidence against a claim. Nonetheless, because the process is nonadversarial, there may be no evidence in opposition, and the veteran is still required to submit enough documentation to "justify a belief in a fair and impartial mind that the claim is well grounded." That has been the burden of proof for VA claimants since at least the early 1920s.

     One of the things Congress did to preserve the existing system was the inclusion of the burden of proof and the duty to assist in a statute, so these beneficial provisions could not be abandoned. Despite clearly stated Congressional intent and sincere efforts to prevent it, the courts have not remained mindful of the will of Congress. One of the most notable ways in which the courts have imposed changes upon the VA process is the principle of the well-grounded claim. The Court of Veterans Claims turned the principle that the government has a duty to assist the veteran in establishing a well-grounded claim on its head. The court construed section 5107 (a), title 38, United States Code, as requiring claimants to provide, without VA assistance, evidence sufficient to establish that the claim is well grounded before VA has any duty to assist such claimants. Naturally, if claimants had the ability to obtain all the preliminary evidence required under the court's rulings, they would not need the VA's assistance. The court's interpretation defeats the very purpose of the duty to assist; the court requires the claimant to do, without assistance, the very thing for which the assistance was intended.

     Messrs. Chairmen, presently, there are bills that have been introduced in the House and Senate to correct this situation. In the Senate, Senator Patty Murray introduced S. 1810, the Veterans Claims and Appeals Processing Clarification and Improvement Act. In the House, Representative Lane Evans introduced H.R. 3193, the Duty to Assist Veterans Act. The DAV encourages all members of the Veterans' Affairs Committees to cosponsor and support this important legislation. Too many valuable VA resources are being wasted due to the multiple step process VA must now go through to determine whether a claim is well grounded. Additionally, many veterans have waited many years to have their claim decided on appeal, only to have their case dismissed by either the Board of Veterans Appeals or the Court of Veterans Claims because it is determined not to be well grounded.

     The DAV is also concerned that the VA's rule changes on the issue of well-grounded claims and the duty to assist, further confuse the issue and force VA to needlessly waste scarce resources to do in multiple steps that which was once done in a seamless process. Therefore, only a legislative remedy will correct the current miscarriage of law.

THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

     The creation of a special, Article I court—the United States Court of Veterans Appeals, recently renamed the United States Court of Appeals for Veterans Claims has been a benefit to veterans and other claimants because the Court, in early decisions, sought to bring VA decision makers into compliance with the law. Prior to judicial review, almost two-thirds of the appeals decided by the Board of Veterans' Appeals were denied—12 percent were allowed and 20 percent were remanded to the agency of original jurisdiction. Since judicial review, less than 40 percent of the appeals are denied, 22 percent are allowed and 36 percent are remanded. Clearly a significant departure from how veterans' claims were handled in the past.

     However, the veterans' community has become quite concerned with the trends and overall direction of the Court's jurisprudence in recent years. The time has come for congressional oversight into how this congressionally created Article I court is adhering to the intent of Congress that the application of law administered under title 38, United States Code, be fair and just and without unnecessary legislative formalities.

     It is the intent of Congress to place upon the government many of the burdens that are typically upon a party to litigation. Congress obligated the VA to furnish veterans all reasonable assistance in obtaining their benefits, to explore all legal theories and avenues of entitlement and to ensure that all pertinent legal authorities are considered. The system is designed so that a veteran or claimant is not required to be represented to receive all benefits to which he or she is entitled.

     Contrary to the intent of Congress and the law, the Court has imposed additional and unwarranted legalistic requirements on veterans and other claimants. Congressional oversight is necessary to ensure that unintended legal formalities do not place unreasonable and unnecessary burdens upon veterans and their families as they seek to obtain benefits and services from a grateful nation.

HEALTH CARE

     Many of us in this room sat through a reenlistment presentation wherein we were told that, should we choose to make the military a career, we would receive free medical benefits for ourselves and our dependents for the rest of our lives. Nothing could be further from the truth.

     We were also told that should we become disabled or injured as a result of active duty military service, that our government would provide for our health care needs. In many cases, this is not true either...

     During the 1990s, federal spending for VA health care has fallen drastically short of keeping pace with medical inflation and associated cost increases...

     Unfortunately, in most cases, it is the caregivers who are being cut...

     In many cases, these health care providers must rely on "healthier" veterans under their care to assist in caring and watching out for the sicker veterans. This trend must be reversed.

     Until Congress and the Administration realize the true value of the VA health care system, veterans will be unable to receive proper and adequate health care services. For the first time in four years, the Administration has put forward a workable health care budget for VA. The Administration's request of $20.4 billion is a commendable start toward providing VA with the resources it needs to adequately carry out its mission. It is our sincere belief that Congress will add an additional $560 million to VA health care, so that VA is appropriately funded.

Access to Technologies for Veterans with Physical Disabilities

     ...VA's Prosthetic and Sensory Aids Service, to its credit, has made a genuine effort to provide veterans with the newest technological advancements as they become available. With significant budget constraints, however, VA simply cannot meet the demand from veterans with disabilities for these assistive technologies.

     Current Veterans Health Administration (VHA) prosthetics policy, based on budget constraints, requires that a VHA-preferred vendor must provide services at a rate less than what Medicare pays for the same service or product...

     Messrs. Chairmen, since when does Medicare set the standard for VA services?...

     The continuation of an inadequate budget is negatively impacting this nation's sick and disabled veterans, including 100 percent service-connected disabled combat veterans...

Third-Party Collections

     ...Congress and the Administration must stop the practice of using collections from veterans and their insurers to offset VA medical care appropriations. It is the responsibility of the federal government to fully fund veterans' health care through adequate appropriations

     VHA must immediately end the practice of billing veterans' insurers for conditions related to service-connected disabilities...

     The Administration's legislative proposal to fund the "Veterans Millennium Health Care and Benefit Act" with so-called appropriated funds, $350 million, which must be repaid to the Treasury from third-party collections, appears to be a budget gimmick and concerns us greatly.

CONCURRENT RECEIPT OF MILITARY LONGEVITY RETIRED PAY AND VA DISABILITY COMPENSATION

     The issue of concurrent receipt of VA disability compensation and military longevity retired pay continues to be of grave concern to our membership. Military retirees are the only category of federal retirees who are required to waive their retirement pay in order to receive VA disability compensation.

     While we are grateful and encouraged that Congress was able to pass legislation to provide "special pay" for those retirees who are too severely disabled to begin a second career following their military service, very few veterans will benefit from this legislation. It is our sincere hope and desire that Congress will expand the provisions of "special pay" to those veterans who retired on disability, after serving 20 or more years of active military service. Congress should also either eliminate the provision requiring a severe disability rating within four years of retirement or expand the number of years following retirement to a more reasonable period of time.

     The DAV will continue to fight for the elimination of the prohibition on the concurrent receipt of military longevity retired pay and VA disability compensation. Former servicemembers who retire from the Armed Forces on the basis of length of service must waive their retired pay to receive VA disability compensation. This is inequitable because military retired pay is earned by virtue of the veteran's career service to our nation. On the other hand, disability compensation is recompense for injury or disease incurred as a result of military service.

     Under current law, the earning potential of disabled career retirees is reduced commensurate with the degree of service-connected disability. To put them on equal footing with nondisabled retirees, they should receive full military retired pay and disability compensation to substitute for diminution of earning capacity.

     Currently, there are several bills pending in Congress to provide for concurrent receipt of military longevity retired pay and VA disability compensation. These bills cover the spectrum from no offset, H.R. 303, to partial offset, H.R. 65/S. 1237.

     More than half of the members of the House have joined as cosponsors on H.R. 303, yet this important legislation has not been given serious consideration.

     Fairness and equity require that this legislation be moved forward and be favorably considered by both the House and the Senate during this session of the 106th Congress. Your support of this matter would be greatly appreciated...

HOMELESS VETERANS

     About one-third of the adult male homeless population—about 275,000 on any given night—are veterans, many of whom are combat veterans. Many other veterans are considered near homeless or at high risk because of poverty, lack of family support,... or because they are victims of the national trend to eliminate hospital beds for the mentally ill...

50TH ANNIVERSARY OF THE KOREAN WAR

     In a few months, our nation will celebrate the 50th anniversary of the Korean War, the "forgotten war." It gives me great pride to acknowledge those in this room and the hundreds of thousands of other veterans across this nation who served our country during its efforts to control the spread of communism in Asia. Those valiant warriors, almost a half a century ago, sacrificed and gave their all, no questions asked, at such places as Inchon, Wonsan, "Pork Chop Hill," the Chosin Reservoir, the "Punch Bowl," "Heartbreak Ridge," and Bloody Ridge.

     I am struck by the deep sense of commitment—commitment to our nation's ideas and ideals—they exhibited, not only 50 years ago, but also to the present time. As a nation, we owe them—and all veterans—a great debt of gratitude.

     There is a common bond among veterans, forged by their shared experiences that have molded their character and their values. Although their lives have been forever changed, their values have not, and their commitment to this nation remains strong, even though our government too often reneges on its commitment to them.

     In return for sacrificing their lives, their limbs, and mental and physical well being, the only thing that veterans have ever asked in return is that our government honors its commitment to help them and their families in their hour of need. This sacred covenant between our nation and its citizen-soldiers has been both implied and implicit since our nation was founded. Regrettably, though, there are those in positions of immense power who wish to break or severely weaken this sacred covenant. These political power brokers seemingly have little regard for the time-honored commitments of the past. And in their zeal to win a few more votes and grab a few extra headlines, they have mistakenly chosen to place dollars above decency when it comes to funding veterans' programs—they are more inclined to make new commitments instead of honoring America's promises to its veterans and their families. Together we can once again make veterans and our programs a national priority—as t! hey should be.

     I hope that I have demonstrated that America's veterans, rather than being satisfied to rest on their laurels, continue to stand ready to actively and unselfishly be involved in their communities and across the nation to assist in the future of the country. And, it gives me great pleasure to note that the veteran vote has made a big difference in some of the early primaries this year. I am sure this trend will continue through the federal elections in November.

     We must never forget how blessed we are to live in a free society nor forget the price that was paid for our freedom. We must, therefore, honor and care for those who distinguished their lives in defense of freedom—whatever the cost.

     I want to again impress upon you that the disabled veterans in this room, and our millions of comrades across this nation, have paid a high price for the freedoms all Americans cherish. The only thing they ask in return for their sacrifices and their service is for this great nation to honor its sacred contract with America's veterans. They deserve nothing less.

     Messrs. Chairmen, this completes my testimony. I hope that the Committees recognize that my testimony comes from one who not only cares for the well-being of his fellow veterans and our nation; but also one who deeply appreciates the men and women whose daily work it is to care for our nation's veterans and their families.

     Thank you for allowing me the opportunity to discuss the agenda of the DAV and to share our concerns with your committees.


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