STATEMENT OF
GERALD M. CROSS, MD, FAAFP
ACTING UNDER SECRETARY FOR HEALTH
VETERANS HEALTH ADMINISTRATION
U.S. DEPARTMENT OF VETERANS AFFAIRS
BEFORE THE
COMMITTEE ON VETERANS’ AFFAIRS
U.S. SENATE

OCTOBER 21, 2009

Good Morning Mr. Chairman and Members of the Committee:

Thank you for inviting me here today to present views on several bills that would affect Department of Veterans Affairs (VA) benefits and services.  Joining me today are Mr. Brad Mayes, Director of the Compensation and Pension Service, Mr. Richard Hipolit, Assistant General Counsel, and Mr. Walter Hall, Assistant General Counsel.  Unfortunately, we do not have views and estimates on several bills including S. 1109, S. 1467, S. 1556, S. 1753, and a draft bill regarding exposure to chemical hazards referred to in the list of bills provided in the Committee's witness letter of October 8.  We will forward those as soon as they are available.  We appreciate the opportunity to address these bills that would affect the Department’s health care and benefits programs. 

S. 977  “Prisoner of War Benefits Act of 2009”

S. 977 would eliminate two current requirements for presuming service connection of certain diseases in a former prisoner of war (POW):  (1) the requirement that a Veteran be detained or interned as a POW for at least 30 days; and (2) the requirement that VA determine that a former POW has post-traumatic stress disorder (PTSD) for service connection of osteoporosis to be presumed.  It would also add type II diabetes to the list of presumptive diseases.  The bill would authorize the Secretary to add through rulemaking to the list of diseases that may be presumed service connected in a former POW, by reason of having a positive association with the experience of being a POW, and would establish procedures, including taking into account the recommendations of the Advisory Committee on Former Prisoners of War, on how those diseases should be added.  Finally, if a disease is removed from the presumptive list and a Veteran was awarded compensation for that disease or a Veteran’s survivor was awarded dependency and indemnity compensation for the Veteran’s death resulting from that disease before the removal effective date, the bill would protect entitlement to benefits for that disease. 

VA does not support this bill.  The presumption for some conditions currently requires a minimum internment period for good reason.  Some presumptive conditions, such as avitaminosis, malnutrition, and other nutritional deficiencies, require a minimum period of deprivation to develop.  The 30-day minimum internment period reflects the need for a period during which a person would be deprived of a proper diet.  As a result, VA relied upon the 30-day timeframe established by Congress when it added osteoporosis to the regulatory list of presumptive diseases.  VA already recognized that the presumption of service connection for osteoporosis for former POWs should not be limited to former POWs who have PTSD.  Based on studies suggesting a link between osteoporosis and internment or detention as a POW for a period sufficient to result in nutritional deficiency, we amended our regulations to provide a presumption of service connection for osteoporosis independent of any determination regarding PTSD.  VA cannot support the addition of type II diabetes to the list of presumptive diseases because we are not aware of scientific evidence demonstrating that such a presumption is warranted.

VA agrees that it should amend applicable regulations when sound medical and scientific evidence shows a positive association between the experience of being a former POW and the occurrence of a disease.  VA already relies upon recommendations from its advisory committees, such as the Advisory Committee on Former Prisoners of War, to carefully study and recommend appropriate regulatory amendments, including additional POW presumptive conditions and has added by regulation new presumptions recommended by the Advisory Committee on Former Prisoners of War.  However, because VA already has in 38 U.S.C. 501 sufficient statutory authority to prescribe necessary or appropriate regulations, additional statutory authority to authorize such rulemaking is unnecessary.  Moreover, because VA already consults the Advisory Committee, requiring it to do so is unnecessary.   VA intends to continue to review for possible regulatory amendment any recommendations from the Advisory Committee, as well as from other sources.  Congress created the Advisory Committee to assess the needs of POWs with respect to compensation, health care, and rehabilitation.  We welcome the opportunity to meet with the Advisory Committee at any time. 

However, VA opposes mandatory timeframes within which to promulgate regulations in response to an Advisory Committee recommendation and any requirement to publish a notice of a decision that a presumption is not warranted for a disease.  Under 38 U.S.C. 541, every two years the Advisory Committee is to submit a report to the Secretary on the programs and activities of VA that pertain to former POWs.  Within 60 days of receipt of this report, VA is required to submit a copy to Congress along with appropriate comments.  The Advisory Committee may submit any other reports or recommendations that it considers appropriate.  These statutory provisions are clear that the Advisory Committee is to assist VA in making reports and recommendations regarding the needs of former POWs.  The Advisory Committee is not and should not be a substitute for VA’s regulatory efforts.   

VA is unable to provide costs on this bill at this time because sufficient data are not yet available.  With the Chairman’s permission, we will provide a cost estimate in writing for inclusion in the record.

S. 1118  “Increase in the Amount of Monthly Dependency and Indemnity Compensation to Surviving Spouses” 
Section 1 of S. 1118 would increase the monthly amount of dependency and indemnity compensation (DIC) payable to a Veteran’s surviving spouse.  Instead of the current base amount, VA would pay 55 percent of the rate of monthly compensation in effect under 38 U.S.C. 1114(j), the rate of disability compensation for disability rated totally disabling.  In the case of an individual who is eligible for DIC under section 1311 and for benefits under another provision of law by reason of the individual’s status as a Veteran’s surviving spouse, section 1 would also prohibit the reduction or offset in benefits under the other provision of law by reason of eligibility for DIC under section 1311.  These changes would apply to DIC paid under 38 U.S.C. ch. 13 for months beginning after 180 days after the date of enactment.

VA does not support section 1 of this bill because the current rates of DIC are appropriate.  In October 2007, the Veterans’ Disability Benefits Commission assessed the appropriateness of the level of DIC payments and found the current level of DIC paid to a surviving spouse is comparable to, or higher than, the earnings of a widow or widower in the general population.  In addition, 89 percent of surviving spouses responding to a survey were satisfied with their DIC payments.   A May 2001 VA Program Evaluation of Benefits for Survivors indicated findings similar to those of the Veterans’ Disability Benefits Commission–that DIC is a competitive survivor benefit compared to employer-provided benefits for survivors of non-Veterans.  The report pointed out that DIC provides a benefit that is approximately twice as large as benefits for survivors of private sector employees, state employees, and Federal employees covered by the Civil Service Retirement System, and that VA provides a significantly broader array of non-income benefits for survivors of disabled Veterans.

DIC payments, unlike most other Federal benefits, are tax-free.  Surviving spouses who are entitled to DIC are entitled to other non-income Federal benefits, such as care under the Civilian Health and Medical Program, Dependents’ Educational Assistance, burial expense reimbursement, and Servicemembers’ or Veterans’ Group Life Insurance.  These additional benefits significantly increase the value of a surviving spouse’s “benefit package” and help a surviving spouse to adjust during the critical transition period after a Veteran’s death.
The language of the provision that would eliminate the offset between DIC and other benefits for a Veteran’s surviving spouse is broad enough to include annuities under the Survivor Benefit Plan (SBP) and other Federal benefits, such as payments under the Radiation Exposure Compensation Act of 1990, the Federal Tort Claims Act, and the Federal Employees Compensation Act based on “death due to service in the Armed Forces.”  Current law generally prohibits payment of any other Federal benefit to a surviving spouse who is receiving DIC payments.

If the scope of the offset elimination is intended only for DIC and SBP payments, then VA defers to the Department of Defense (DoD) because DoD would incur the costs associated with enactment of the bill.  VA pays the full amount of DIC regardless of whether a surviving spouse is entitled to SBP benefits.  A provision of title 10, United States Code, which governs DoD programs, requires that SBP payments be offset. 

If the offset elimination is intended to cover Federal benefits in general, not only SBP, there would again be no financial implications for VA.  However, this provision could result in some circumstances in duplication of benefits for the same condition or event. 
If, for example, a surviving spouse receives DIC based on the Veteran’s death, which was attributed to his service-connected bladder cancer due to radiation exposure, then the surviving spouse would also receive a lump sum payment for the same disability from the Department of Justice under the Radiation Exposure Compensation Act of 1990.  In this hypothetical instance and others like it, the surviving spouse would receive duplicate payments for the same disability. 

VA estimates the costs associated with section 1 of this bill would be $1.1 billion in the first year following enactment and $14.3 billion over ten years. 

Current law authorizes the payment of DIC to the surviving spouse and children of a deceased Veteran who was entitled to receive compensation at the time death for a service-connected disability that was rated totally disabling for a minimum period of 10 years immediately preceding death.  Section 2 of S. 1118 would reduce the amount of time required from 10 years to 5 years and would provide graduated rates of DIC depending on how long the disability was rated totally disabling.  For example, if the disability was continuously rated totally disabling for at least five years but less than six years, DIC would be paid at the rate of 50 percent of the DIC otherwise payable.  If the disability was continuously rated totally disabling for at least six years but less than seven years, DIC would be paid at the rate of 60 percent of the DIC otherwise payable. 

VA needs additional time to evaluate section 2.  We will forward views on this provision as soon as they are available. 

Section 3 of S. 1118 would lower from 57 to 55 the age at which a surviving spouse can remarry and retain eligibility for several VA benefits, including DIC paid under section 1311, educational assistance paid under 38 U.S.C. ch. 35, and housing loans made under 38 U.S.C. ch. 37.  The change would be effective on the later of the first day of the first month that begins after the date of enactment and the first day of the fiscal year that begins in the calendar year of enactment.  Section 3 would prohibit the payment of any benefit for any period before the effective date.  An individual who, but for having remarried, would be eligible for a VA benefit by reason of these amendments but who remarried before enactment and after attaining age 55, would be eligible for benefits under the amendment made by section 3, but only if the individual applies to VA not later than one year after enactment.

VA does not oppose enactment of this provision provided Congress finds savings to offset increased costs from its enactment.  By lowering the age, this bill would make title 38 provisions similar to those already existing in title 10.  Changing similar provisions in title 38 is not only equitable but would also simplify the administration of benefits under both titles. 

VA is unable to provide a cost estimate for this provision at this time because sufficient data are not available.  With the Chairman’s permission, we will provide VA’s estimate in writing at a later date.

S. 1155 “Establishing Position of Director of Physician Assistant Services” 

S. 1155 would eliminate the Physician Assistant (PA) Advisor position established by Public Law 106-419, the Veterans Benefits and Health Care Improvement Act of 2000, and establish a Director of Physician Assistant (PA) Services within the Office of the Under Secretary for Health.   VA does not support this bill. 

The functions of the proposed Director of PA Services are already being performed by the PA Advisor.  Moreover, the PA Advisor position was converted to full-time on April 14, 2008, and it will be based in VA Central Office at the expiration of the current incumbent’s term in April 2010. 

In addition, VA does not support the proposed organizational realignment of the Director of PA Services to the Office of the Under Secretary for Health.  The position’s current alignment within the Office of Patient Care Services is consistent with most other clinical program leadership positions and provides the PA Advisor access to the Under Secretary for Health for any issues that cannot be resolved within the current structure.   The cost of implementing this bill is insignificant.

S. 1204 “Chiropractic Care Available to All Veterans Act of 2009” 

S. 1204 would require VA to increase to not fewer than 75 the number of VA facilities directly providing chiropractic care through VA medical centers and clinics by December 31, 2009.  In addition, S. 1204 would require that chiropractic care be provided at all VA medical centers by December 31, 2011. 

VA opposes S. 1204.  While musculoskeletal conditions are common in VA patients, and are increasingly prevalent among Operation Enduring Freedom and Operation Iraqi Freedom (OEF/OIF) Veterans, there is currently a facility with an in-house chiropractic care program in each of our geographic service areas.  Specifically, VA has 28.5 chiropractors providing on-station care and services at 36 facilities.  VA does not oppose eventually increasing the number of VA sites providing chiropractic care; however, the projected demand for chiropractic care is insufficient to justify mandating it at all VA medical centers by the end of 2011.  Moreover, the requirement to increase the number of facilities in which VA provides chiropractic care from 36 facilities to 75 facilities by the end of the calendar year is unrealistic and unnecessary.  Currently, 98 percent of VA patients are able to receive chiropractic care within thirty days of their desired date. 

VA estimates that S. 1204 would cost $5.3 million in fiscal year (FY) 2010, $5.5 million in FY 2011, $29.8 million over 5 years, and $63.6 million over 10 years.

S. 1237 “Homeless Women Veterans and Homeless Veterans with Children Act of 2009” 

S. 1237 would expand those eligible to receive grants under 38 U.S.C. 2061 beyond grant and per diem providers to include those entities eligible to receive grant and per diem payments.  It would also provide that both male and female homeless Veterans who are responsible for the care of minor dependents may qualify as Veterans with special needs.  In addition, S. 1237 would authorize the use of funds for the provision of direct services to the dependents of homeless Veterans.  Section 3 of S. 1237 would require the Secretary of Labor to award grants to eligible programs and facilities to provide services to reintegrate homeless women Veterans and homeless Veterans with children into the workforce.  Grant recipients would provide job training, counseling, job placement services and child care.  The law would be implemented by the Assistant Secretary for Veterans’ Employment and Training, who would report through the Secretary of Labor on this program biennially.  An additional $10 million, in excess of other appropriated funds, would be made available for fiscal years 2010 and 2014.

VA supports section 2 as it would allow any eligible entity providing services to special needs populations to apply for special needs grants by eliminating the requirement that recipients also be a grant and per diem recipient.  VA also supports making the provision recognizing homeless Veterans with dependent children as a special needs population gender neutral because it would allow VA to directly provide equal services to all homeless Veterans with dependents.

VA estimates the cost of this section would be $8.9 million in FY 2010, $15.1 million in FY 2011, $91 million over 5 years, and $239.6 million over 10 years.

The Secretary of Labor is responsible for awarding grants under Section 3 of the bill.  VA defers to the Department of Labor concerning this portion of the legislation.

S. 1302 “Veterans Health Care Improvement Act of 2009” 

S. 1302 would require VA to submit to Congress within one year a plan to introduce pay-for-performance measures into community-based outpatient clinic (CBOC) contracts.  This plan would require VA to include measures to ensure contracts utilize pay-for-performance mechanisms including incentives for providing high-quality health care, patient satisfaction, and data collection on the outcomes of services provided by CBOCs.  The plan would also require VA to impose penalties for substandard care, and to eliminate abuses by CBOCs that use capitated-basis compensation.  Moreover, VA’s plan would need to include mechanisms to ensure Veterans are not denied care and do not face undue delays.  VA would be required to implement this plan within 60 days of submitting it to Congress, though in implementing the plan the Secretary may initially carry out of one or more pilot programs to assess its feasibility and advisability.  VA would be required to report to Congress every 6 months providing recommendations on the feasibility and advisability of utilizing pay-for-performance compensation in providing health care services through means other than CBOCs.

VA does not support S. 1302.  VA is devoting significant effort into quality control and effective incentives in its CBOC contracting now, and that is a complex multi-faceted endeavor.  There is a great deal of emerging research in the medical field on pay-for-performance, and it is clear that programs must be carefully thought out to avoid unintended consequences.  Prescribing a fixed set of tools would impair VA flexibility.  Additionally the legislation would not provide any additional statutory authority to establish a CBOC performance-based patient quality care incentive contract than what is currently provided in the Federal Acquisition Regulations.

VA estimates there would be no additional costs associated with this legislation as it only requires VA to develop a different type of contract during the normal acquisition process.

S. 1394 “Veterans Entitlement to Services (VETS) Act of 2009” 
S. 1394, the “Veterans Entitlement to Service Act of 2009,” would require the Secretary to acknowledge the receipt of any claim for medical services, disability compensation, or pension or other communication relating to those services or benefits within 30 days of receipt.  The acknowledgment would have to specify the date of receipt and would be permitted to be communicated “via written or electronic means” including email.

VA does not support S. 1394.  By requiring additional paperwork and administrative workload that would not materially advance the merits of a claim, the bill would be detrimental to VA’s efforts to streamline and expedite claims processing.  Moreover, the benefits of such a requirement are unclear; VA already contacts individuals who submit claims generally within 30 days.  Individuals who submit claims electronically receive immediate acknowledgement.  VA continues to communicate with claimants throughout the claims process. 

In addition, the term, “or other communication” is too broad and could be interpreted to require VA to formally respond to an indefinite number of telephonic, written, or electronic contacts by Veterans to VA call centers, health care facilities, Regional Offices, Vet Centers and other locations.  It is VA policy to respond as quickly as possible to any Veteran’s request or inquiry but the legislation is too prescriptive in this regard.  VA receives roughly 21 million telephone calls each year at the main Veterans Benefits Administration (VBA) call center; the Veterans Health Administration’s (VHA) Pharmacy Customer Call Center is expected to receive in excess of 8 million calls per year, and VA estimates VHA, VISN, and medical center call centers receive in excess of 20 million calls per year.

Enactment of S. 1394 would not result in any mandatory costs.  VA cannot estimate the cost for the proposed legislation as there is no central accounting system for the number of contacts made by Veterans to VA. 

S. 1427  “Department of Veterans Affairs Hospital Quality Report Card Act of 2009” 

S. 1427 would add section 1706A to title 38 and require VA, within 18 months of enactment, to establish and implement a Hospital Quality Report Card Initiative.  This initiative would require the Secretary to publish a report at least twice a year on Department medical centers containing information on effectiveness, safety, timeliness, efficiency, patient-centeredness, patient satisfaction, health professional satisfaction, and equity of care for various populations (female, geriatric, disabled, rural, homeless, mentally ill, racial and ethnic minorities).  VA would be required to grade facilities in these areas on a scale from A+ to F.  VA would also be required to provide information, to the maximum extent practicable, on: staffing levels of nurses and other health professionals; rates of nosocomial infections; volumes of different procedures performed; hospital sanctions and violations; quality of care to various populations; availability of emergency rooms, intensive care units (ICUs), maternity and specialty services; quality of care in inpatient, outpatient, emergency, maternity and ICU; ongoing patient safety initiatives; use of health information technology; and other matters.          S. 1427 would allow the Secretary to provide information in addition to or in lieu of the specific requirements identified in the bill by informing the Senate and House Committees on Veterans’ Affairs at least 15 days before the report is to be published.  S. 1427 would also allow Secretary to adjust quality measures based upon risk, but it would require VA to establish procedures for making unadjusted data available to the public in a manner deemed appropriate by VA and to disclose its analysis methodology.  These reports would need to be written for non-medical professionals and available electronically and in hard copy upon request at each medical center.  The legislation is intended to ensure information VA provides is of a type and in a form that is conducive to comparisons with other local or regional hospitals.  At least once a year, VA would be required to annually compare quality measures across years to identify and report any false or artificial improvements in quality measurements.  In addition, VA would be required to develop and implement effective safeguards to protect against unauthorized use or disclosure of medical center data and to ensure that no identifiable patient data is released to the public.

VA does not oppose increasing transparency of quality measures for its facilities and agrees with the general premise of this legislation; however, the agency does not support S. 1427 as written because some of the requirements may not be possible or would require VA to develop its own data categories that could not be compared or benchmarked to other leading health care organizations. 

VA has identified health care transparency as one of its major Strategic Transformation Initiatives this fiscal year and is working with the Centers for Medicare & Medicaid Services (CMS) to post VA comparable data on their “Hospital Compare” Web site (www.hospitalcompare.hhs.gov).  CMS requires three data streams, each of which has different reporting periods based on assuring data validity.  They post process data quarterly but outcome and patient satisfaction data annually.  VA consequently believes that it is impractical to report data twice a year as the data may be invalid.  VA is similarly exploring other public reporting programs, such as the Medicare Prescription Drug Plan Finder, Medicare Options  Compare, CMS’ Nursing Home Compare, Commonwealth Fund’s WhyNotTheBest, and others.

Additionally, VA is developing composite metrics meaningful to both consumers and stakeholders.  While seemingly simple, an incremental letter grade scale may not be the best way to communicate the quality of a particular hospital to consumers.  For example, CMS uses a five star rating system for Nursing Home Compare.  VA will be conducting focus groups with Veterans to determine how they would like to be provided quality information about medical facilities.  VA has proposed an initiative to develop an internal VA Hospital Report Card prototype for internal measurements and comparison at all organizational levels.  The data elements are similar but not exactly the same as the elements identified in this legislation.  VA proposes to include: structure and volume; workforce productivity; population and disease burden; care delivery utilization; quality, efficiency and outcomes; and trends and benchmarks.  This approach offers VA the flexibility to provide meaningful measures that may be benchmarked with other hospitals and develop new measures through consensus-based processes involving all stakeholders.  Measures should focus on areas with the greatest potential for making care safe, effective, timely, efficient or equitable, and patient-centered.  Primarily, these data will be used to identify areas where VA can improve the most.

VA estimates S. 1427 would cost $2 million in FY 2010, $2.1 million in FY 2011, $10.8 million over 5 years, and $24.0 million over 10 years.

S. 1429 “Servicemembers Mental Health Care Commission Act” 

S. 1429 would establish a 12 member commission, jointly appointed by VA and DoD, responsible for overseeing the monitoring and treatment of Veterans and service members with post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and other mental health disorders caused by service in the Armed Forces.  The Commission would consist of at least one of each of the following: active duty service members, Veterans retired from armed services, VA employees, DoD employees, recognized medical or scientific authorities in related fields, non-physician mental health professionals, and Veterans who have undergone treatment for PTSD, TBI or other mental health disorders.  VA and DoD would be required to consult with Veterans Service Organizations (VSO), members of the Armed Forces, and family members of Veterans and service members when identifying members of the Commission.  The Commission would conduct a thorough study of all matters relating to the long-term adverse consequences of these conditions.  This would include analyzing information gathered from post-deployment interviews, effective treatments, effects on military careers for those seeking care, and continuity and effectiveness of care provided individuals during transition from DoD to VA.  The Commission would make recommendations to mitigate any adverse consequences identified in the study and reduce the cultural and professional stigmas associated with treatment.  The Commission would, not later than September 30 of each year, submit a report to Congress on their findings, conclusions, and recommendations of the Commission.  The Commission would be authorized to conduct site visits, secure information from any federal department or agency, and solicit testimony from service members, Veterans, caregivers and other sources.  The Commission would be terminated at the joint discretion of the Secretaries of DoD and VA.

VA does not support S. 1429 because it is unnecessary.  The Commission would review and advise on PTSD in current and former service members who developed this condition as a result of service, regardless of era, but would not have oversight responsibilities for the care of Veterans with mental health conditions that were not determined to be service-connected.  VA’s mental health program provides care for enrolled Veterans with mental health conditions regardless of the origin of their conditions.  Consequently, this Commission would be overseeing part of VA’s mental health program, but not the entirety.  The charge to address care in both Departments, and to address VA care across the lifespan, but only for those with service-connected conditions, is likely to limit its impact in either setting.

Additionally, the Federal Advisory Committee on Prosthetics and Rehabilitation already addresses care for Veterans with TBI.  Care for Veterans with mental health conditions is being address by two congressionally authorized committees:  the Special Committee on Serious Mental Illness, and the Special Committee on PTSD.  Membership for both committees is determined by the Under Secretary for Health, and each submits an annual report to Congress.  The Commission proposed by this legislation would duplicate these existing and effective mechanisms for oversight.

VA estimates the bill would cost $1 million in FY 2010, $1 million in FY 2011, $5 million over 5 years, and $10 million over 10 years.

S. 1444 “Combat PTSD Act” 

S. 1444 would clarify the meaning of the term “combat with the enemy” in 38 U.S.C. 1154(b) for the purpose of determining service connection.  For Veterans who engaged in “combat with the enemy,” section 1154(b) provides a relaxed evidentiary standard for proving service connection.  Under this legislation, the term “combat with the enemy” would include active duty in a theater of combat operations (as determined by VA in consultation with DoD) during a period of war and active duty in combat against a hostile force during a period of hostilities.  The clarification would apply to any disability compensation claim pending on or after the date of enactment.

VA opposes this bill.  While we understand and support the intent to give every benefit of the doubt to combat Veterans, S. 1444 is too broad, encompasses more than just PTSD claims, and may unduly complicate the adjudication process.  

Section 1154(b) provides a relaxed evidentiary standard that facilitates a combat Veteran’s establishment of service connection for disease or injury alleged to have been incurred in or aggravated by certain active service.  Specifically, section 1154(b) provides that, in the case of any Veteran who engaged in combat with the enemy in active service during a period of war, campaign, or expedition, VA shall accept as sufficient proof of service connection of any claimed disease or injury satisfactory lay or other evidence of service incurrence or aggravation, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the absence of an official record of such incurrence or aggravation.  In short, section 1154(b) allows a combat Veteran to establish the incurrence or aggravation of a disease or injury in combat service by lay evidence alone.  However, to be afforded this relaxed evidentiary standard, the Veteran must have “engaged in combat with the enemy.”  Furthermore, the relaxed evidentiary standard does not apply to the predicate fact of engagement in combat with the enemy.

Historically, evidence of combat engagement with the enemy required evidence of personal participation in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.  Presence in a combat zone or participation in a campaign alone did not constitute engagement in combat with the enemy for purposes of the relaxed evidentiary standard. 

The reason for relaxing the evidentiary requirements for combat Veterans was that official documentation of the incurrence or aggravation of disease or injury was unlikely during the heat of combat.  Combat Veterans should not be disadvantaged by the circumstances of combat service in proving their benefit claims.  Under the relaxed requirements, satisfactory lay or other evidence, if consistent with the circumstances, conditions, or hardships of the Veteran’s service, is sufficient to establish that a disease or injury was incurred in or aggravated by combat service. 

S. 1444 would extend the relaxed evidentiary standard to certain Veterans who did not engage in combat with the enemy during a period of war.  It would require that a Veteran who served on active duty in a theater of combat operations during a period of war or in combat against a hostile force during a period of hostilities be treated as having “engaged in combat with the enemy” for purposes of establishing service connection for disease or injury alleged to have been incurred in or aggravated by such service.  S. 1444 would also require that VA, in consultation with DoD, determine what constitutes a theater of combat operations.  DoD defines theater of operations broadly to encompass geographic operational areas of significant size defined for the conduct or support of specific military operations.  An area designated as a theater of combat operations in consultation with DoD would encompass all Veterans who served on active duty in that theater during a period of war, whether or not they were actually involved in combat.

Service in a theater of combat operations does not necessarily equate to engaging in combat with the enemy and does not in many cases present the same difficulties encountered by combat Veterans when later pursuing compensation claims.  So, although we share the goals of this bill to improve the processing of compensation claims, we are concerned that it would extend the relaxed evidentiary standard to Veterans who served in a theater of combat operations regardless of whether their service involved combat or was even near actual combat and regardless of whether the circumstances of their service were of the kind that would inhibit official documentation of incurrence or aggravation of injury or disease. 

We also are uncertain of the scope of S. 1444, which is broader than just PTSD claims and would provide a relaxed evidentiary standard for all types of physical and psychological diseases and injuries allegedly incurred in or aggravated by service in a theater of combat operations.  In this regard, the subjective psychiatric symptoms associated with a traumatic experience are not always immediately manifested or apparent and thus are not subject to ready documentation.  For example, a Veteran who witnesses a traumatic event may show no immediate observable signs of the mental trauma resulting from the in-service incident.  On the other hand, a physical injury is more readily observable to lay witnesses and more likely to have been documented even in a combat theater. 

In addition, this bill may unduly complicate the adjudication process by requiring separate determinations of whether a Veteran served on active duty in a theater of combat operations during a period of war or served on active duty in combat against a hostile force during a period of hostilities, questions that VA typically does not address.  The need to make such determinations may delay claim processing for all Veterans.

Furthermore, on August 24, 2009, VA proposed a rule that would liberalize the evidentiary standard for establishing the required in-service stressor for entitlement to service connection for PTSD.  The amendment to VA’s adjudication regulations governing service connection of PTSD would eliminate the requirement for corroborating evidence that the claimed in-service stressor occurred if the stressor claimed by a Veteran is related to the Veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service, and that the Veteran’s symptoms are related to the claimed stressor.  This proposed rule has been lauded by many Veterans service organizations and Congress and would improve in the same area as this bill.

VA is unable to provide a cost estimate for this bill because we cannot estimate the number of Veterans who would be granted service-connection based on the provisions of this bill. 

S. 1483 “Designating the Alexandria, Minnesota Outpatient Clinic” 

S. 1483 would designate the Department of Veterans Affairs Outpatient Clinic in Alexandria, Minnesota as the “Max J. Beilke Department of Veterans Affairs Outpatient Clinic.”  Mr. Beilke died in service to his country at the Pentagon on September 11, 2001.  The Department has no objection to this proposal and defers to Congress in the naming of federal property.

S. 1518 “Caring for Camp Lejeune Veterans Act of 2009” 

S. 1518 would amend title 38 to extend eligibility for hospital care, medical services and nursing home care for certain Veterans stationed at Camp Lejeune during a period in which well water was contaminated notwithstanding that there is insufficient medical evidence to conclude that a particular illness is attributable to such contamination.    It would also make family members of those Veterans who resided at Camp Lejeune eligible for the same services, but only for those conditions or disabilities associated with exposure to the contaminants in the water at Camp Lejeune, as determined by the Secretary.

VA takes the Camp Lejeune matter very seriously but has concerns with the legislation as written.  S. 1518 would provide a very broad enrollment and treatment authority for service members and their families.  As the legislation is written, any condition that cannot be specifically eliminated as related to the contaminated water at Camp Lejeune would require VA to provide treatment.  We note this authority is broader than that conferred on radiation-exposed Veterans.  Moreover, the legislation would also require VA to provide medical services and nursing home care to those family members who either consumed contaminated water or were in utero at the time of consumption if the condition or disability can be associated with exposure to contaminated water at Camp Lejeune. 

From the 1950s through the mid-1980s, persons residing or working at the U.S. Marine Corps Base Camp Lejeune were potentially exposed to drinking water contaminated with volatile organic compounds.  Two of the eight water treatment facilities supplying water to the base were contaminated with either tricholoroethylene (TCE) or tetrachloroethylene (perchloroethylene, or PCE).  The Department of Health and Human Services’ Agency for Toxic Substances and Disease Registry (ASTDR) estimated that the level of PCE in drinking water  exceeded current standards from 1957 to 1987 (when the contaminated wells were shut down) and represented a potential public health hazard. 

An ATSDR study begun in 2005 is evaluating whether children of mothers who were exposed while pregnant to contaminated drinking water at Camp Lejeune are at an increased risk of spina bifida, anecephaly, cleft lip or cleft palate, and childhood leukemia or non-Hodgkin’s lymphoma.  The results of this report have not yet been released.  In the same year, a panel of independent scientists convened by ATSDR recommended the agency identify cohorts of individuals with potential exposure, including adults who lived or worked on the base and children who lived on the base (including those that may have been exposed while in utero), and conduct a feasibility assessment to address the issues involved in planning future studies at the base.

In October 2008, the Department of the Navy issued a letter to Veterans who were stationed at Camp Lejeune while in military service between 1957 and 1987.  This letter informed Veterans that the Navy had established a health registry and encouraged them to participate.  VA currently provides Veterans with information about this issue and referrals to the Navy registry.  Veterans who are a part of this cohort may also apply for enrollment if they are otherwise eligible, and are encouraged to discuss any specific concerns they have about this issue with their health care provider.  Veterans are also encouraged to file a claim for VA disability compensation for any injury or illness they believe is related to their military service.  VA environmental health clinicians can provide these Veterans with information regarding the potential health effects of exposure to volatile organic compounds and VA’s War-Related Illness and Injury Study Centers are also available as a resource to providers.

It is unclear exactly how many people were potentially affected, but some estimates place the number at one million Veterans and family members.  Though the Department of the Navy has attempted to contact all service members who were stationed at Camp Lejeune during the three decades of potential exposure, it is possible not everyone was reached or identified.  Records over a half-century old may not be available, and the legislation leaves open-ended what “resided” or “stationed” means because there is no limitation such as a minimum time requirement on the base.  Consequently, a broad definition of these terms may mean VA’s estimates of 500,000 Veterans and 500,000 family members are too conservative.

Because of these concerns, VA recommends that if any enhanced Veteran care is authorized, it should be modeled upon the authority providing for benefits and services for radiation-exposed Veterans and limited to conditions that can be associated with consumption of contaminated water.  VA also would recommend that any care for potentially eligible family members be provided by DoD as the exposure is directly related to service at Camp Lejeune.

VA estimates the legislation, as written, would cost $299.7 million in FY 2010, $319.5 million in FY 2011, $1.71 billion over 5 years and $4.16 billion over 10 years.

S. 1531 “Department of Veterans Affairs Reorganization Act of 2009” 

S. 1531 would amend 38 U.S.C. 308 to increase the number of Assistant Secretaries in the Department from seven to eight.  It would also increase the number of Deputy Assistant Secretaries from 19 to 27.  The bill would also require that one Assistant Secretary be appointed Assistant Secretary for Acquisition, Logistics, and Construction and would cap the number of Deputy Assistant Secretaries the Secretary may appoint to manage programs relating to construction, facilities, asset management, and IT.  In addition, S. 1531 would modernize some of nomenclature relating to construction and acquisition functions in 38 U.S.C. 308.

VA generally supports this legislation.  Elevating the construction and acquisition function to the Assistant Secretary (AS) level will help ensure consistent and sound business decisions are made in VA’s acquisitions, logistics, and construction programs.  This position will also further transform and modernize VA’s business practices and processes.  Similarly, expanding the number of Deputy Assistant Secretaries (DAS) is necessary given the size, scope, and complexity of VA’s missions and geographic distribution.  However, VA opposes language in S. 1531 which specifies the title and responsibilities of the AS and which caps the number of DAS assigned to certain functions as this limits the agency’s flexibility to address changing needs and demands. 

S. 1547 “Zero Tolerance for Veterans Homelessness Act of 2009” 

S. 1547 proposes to alter and expand a number of authorities available to VA with regard to preventing and reducing Veteran homelessness.  VA has initiated an ambitious plan to end homelessness among Veterans and supports the Committee’s interest in providing additional services and assistance to homeless Veterans.  However, VA needs additional time to evaluate S. 1547.  We will provide views and costs on these provisions as soon as they are available. 

S. 1556 “Veterans Voting Support Act” 

S. 1556 would to require VA to support Veterans in registering to vote and voting. While VA is committed to helping Veterans exercise their right to vote, the agency needs additional time evaluate S. 1556.  We will provide views and costs to the Committee as soon as they are available. 
  
S. 1607 “Wounded Veteran Security Act of 2009” 

S. 1607 would amend title 38 to establish certain employment rights for persons absent from work for treatment of a service-connected disability.  VA defers to the Department of Labor on this legislation as it concerns rights and benefits of employment.

S. 1668 “National Guard Education Equality Act” 

S. 1668 would amend section 3301 of title 38, United States Code, to add to the definition of “active duty” under the Post 9/11 GI Bill, full-time duty served under title 32, United States Code, by members of the Army National Guard or Air National Guard of any State, thereby making this service qualifying service for purposes of the Post 9/11 GI Bill.  This would include, but not be limited to, active duty (1) under orders from the Governor of a State or Territory of the United States in response to a domestic emergency; (2) as part of the Active Guard Reserve; (3) as part of Air Sovereignty Alert; (4) as part of Operation Jumpstart; (5) in response to Hurricane Katrina; (6) as part of an airport security mission; or (7) as part of a counterdrug activity.

A bill similar to S. 1668 (H.R. 3554) was introduced in the House of Representatives on September 10, 2009.  H.R. 3554 also proposes to amend the Post 9/11 GI Bill to include Army National Guard and Air National Guard active-duty service under title 32, United States Code, as qualifying service for the Post-9/11 GI Bill.  However, H.R. 3554 would also allow individuals who served at least 30 continuous days in a Reserve Component and were released for a service-connected disability to be eligible for the Post-9/11 GI Bill.

VA does not oppose S. 1668, subject to Congress identifying offsets for the additional benefit costs; however, we would prefer to see a provision in this measure similar to the one in H.R. 3554, noted above, that would authorize eligibility under the Post-9/11 GI Bill for certain individuals released from active duty for service-connected disabilities.

On average, the Army National Guard has the largest number of beneficiaries in the Reserve Educational Assistance Program (REAP), as well as the Montgomery GI Bill - Selected Reserve program (MGIB-SR).  The Air National Guard has the third largest number of beneficiaries in these programs.  Enrollments in these programs would be reduced if title 32 active-duty service became qualifying service under the Post-9/11 GI Bill.

Servicemember- and service-period data are electronically exchanged between VA and DoD for some members who served under title 32 and became eligible for either the MGIB – Active Duty, REAP, or MGIB-SR.  However, VA and DoD would need to manually verify this data until it could be electronically exchanged.  Additionally, administration of the Post-9/11 GI Bill would be impacted by the anticipated increase in the number of individuals who would qualify for the Post-9/11 GI Bill.

VA estimates that the enactment of S. 1668 would result in a benefits cost to VA of $120.6 million in FY 2011, $1.1 billion over 5 years, and $2.3 billion over 10 years.

S. 1752 “Presumption of Service-Connection for Parkinson’s Disease”

S. 1752 would add Parkinson’s disease manifested to a degree of 10 percent or more to the list of diseases presumed service connected in a Veteran who served in Vietnam.

VA supports the objective of this bill.  Based on an independent study by the Institute of Medicine, the Secretary announced on October 13, 2009, that VA would add Parkinson’s disease to the list of presumptive diseases associated with herbicide exposure. However, this provision is unnecessary based on the Secretary’s recent determination.

VA cannot provide a cost estimate on this bill at this time because sufficient data are not yet available.  With the Chairman’s permission, we will provide a cost estimate in writing for inclusion in the record.

This concludes my prepared statement.  I would be pleased to answer any questions you or any of the members of the Committee may have.