Legislative Updates-Children of Atomic Veterans

NEWS FROM....
CONGRESSMAN LANE EVANS, -- RANKING DEMOCRATIC MEMBER,
COMMITTEE ON VETERANS AFFAIRS, -- U.S. HOUSE OF REPRESENTATIVES
Room 333 Cannon HOB
Washington, DC 20515
For More Information
Contact: Bill Crandell at 202-225-9756
OR -- Lane Evans at:
http://veterans.house.gov/democratic/welcome.htm

FOR RELEASE: March 23, 2000

Veterans Unanimous:
H.R. 3193, Evans Bill Only Solution To Remove Court-Imposed Roadblock To Veterans' Benefits Claims Assistance.--- Review of files suggests "mass confusion"

Washington, DC --- "VA was not thinking about veterans," said Congressman Lane Evans of Illinois, Democratic Leader of the House Veterans Affairs Committee, "when it persuaded the Court of Appeals for Veterans Claims to drastically redefine the historic duty of the Department of Veterans Affairs to assist veterans in obtaining evidence relevant to their claims for veterans benefits. Evans strongly disagreed with the actions taken by both the VA and the Court that have left veterans seeking VA benefits lost in a confusing maze of legal requirements. Those decisions, involving VA's duty to assist veterans in developing "well-grounded" claims, were the subject of angry testimony before a hearing of the House Veterans' Affairs Subcommittee on Benefits.

A July 14, 1999 ruling by the Court in Morton v. West overturned the long-standing responsibility of the VA to assist veterans in developing claims for VA benefits. Under the court ruling - which accepted VA's arguments -- VA is now prohibited from assisting veterans with claims for VA benefits until after the veterans establish that their claims are "well grounded."

Today's hearing focused on problems caused by the Morton decision, and on the Duty to Assist Veterans Act,
H.R. 3193, which Evans introduced last summer. Evans said, "The Duty to Assist legislation would reestablish the duty of the VA to assist veterans to prepare their claims for benefits." The bill also clarifies the burden of proof for these claims.

The Evans bill won unanimous support from the Nation's principal veterans service organizations. Rick Surratt, Deputy National Legislative Director of Disabled American Veterans (DAV), said his organization "applauds and strongly supports this bill." Veterans of Foreign Wars, Vietnam Veterans of America, The American Legion, the Non-Commissioned Officers Association and Paralyzed Veterans of American echoed Surratt's support for the Evans "Duty to Assist" bill.

Vietnam Veterans of America "wholeheartedly endorses legislative action," said its Veterans Benefits Program Director, Leonard J. Selfon, to end what it describes as "confusion, injustice and the potential for either unintentional, or even intentional, abuse." Both The American Legion and the Veterans of Foreign Wars also agreed on the need for Congress to fix the problem.

"Legislation is now immediately required," said John McNeill, Assistant Director for Veterans Benefits Policy for Veterans of Foreign Wars, "to fix the current intolerable situation," which McNeill said holds veterans to "an artificial and extremely high threshold of proof." Carroll Williams, Director of The American Legion's National Veterans Affairs and Rehabilitation Commission, heralded "the elimination of the often misunderstood term 'well-grounded claim' with the enactment of H.R. 3193."

Under the Morton decision VA is prohibited from providing any assistance to a veteran who files a claim for service-connected compensation benefits until after the veteran submits evidence of:

a current medical disability;
an in-service occurrence or aggravation of a disease or injury; and,
medical evidence of a nexus, or connection, between the two.

Most veterans, said Richard Schneider, Director of State/Veterans Affairs of the Non-Commissioned Officers Association, "have neither the ability nor an understanding of laws and regulations to properly represent themselves in veterans compensation and pension claim matters." Review of veterans' files suggests mass confusion among VA Regional Office staff in interpreting these legal requirements.
In some cases veterans are being asked to "well-ground" claims which should be granted under certain statutory presumptions or other legal criteria. For example:

VA has rejected as "not well-grounded" claims of veterans who applied for service-connected compensation immediately after leaving military service, even when the disability was the reason the veteran was discharged from military service.
VA has also rejected as "not well-grounded" claims of former prisoners of war (POWs) who applied for a service-connected disability which the law presumes is due to military service.
VA has even rejected as "not well-grounded" the claim of a veteran who was diagnosed with Hepatitis C - a chronic condition that never goes away -- during military service.

DAV's Surratt said "it is absurd to require a veteran who lost an eye, a leg, or an arm, for example, during service to provide medical evidence he or she still has a missing eye, leg, or arm and a physician's opinion that the missing eye, leg, or arm shown today is the same eye, leg, or arm lost during service." Veterans noted that the requirement for VA first to rule on a claim's well-groundedness, and then once the claim has been developed, to rule again on the veteran's eligibility, is doubling VA's workload, rather than simplifying it as the Court had intended.
Under Congressman Evans' proposed legislation, the VA would be required to assist any veteran who submits a claim for veterans' benefits to develop information pertinent to a decision on the claim. That assistance would include:

requesting information from military and VA records;
informing the veteran of the information and evidence needed to fully develop the claim;
telling the veteran if the VA is unable to obtain pertinent evidence, such as service medical records; and,

providing a medical examination to determine the current disability of any veteran who is unable to afford medical care.
Evans notes that his bill also makes clear that a person who submits a claim would have the burden of proving eligibility for that benefit. The burden could be satisfied by meeting the requirements of any presumption provided by law or regulation applicable to the claim. The bill would apply to any claim filed with the VA on or after July 14, 1999, the date of the Morton decision.
"Today, veterans applying for benefits are becoming lost in a maze of conflicting case law and impossible 'Catch-22' scenarios," Evans said. "VA has stopped requesting medical and other relevant information from veterans' physicians and other sources. Even VA doctors are refusing to provide veterans they are treating with the medical opinion needed to 'well-ground' the veteran's claim."
Paralyzed Veterans of America's Associate Legislative Director Geoff Hopkins agreed. "We believe," he told the hearing, "that H.R. 3193 would re-state the clear congressional intent - in a way that veterans, VA and the courts will understand - that VA has a duty to assist all veteran claimants."
The Court said in the Morton decision that if Congress didn't agree with its interpretation, Congress could eliminate the requirement. VA Benefits Under Secretary Joseph Thompson testified that VA has proposed corrective regulations. Veterans contend the proposed regulations do not fix the problem, and VA acknowledges that regulations cannot overrule the Court's decision.
"I believe the Court made a mistake," Evans said. "Assistance in establishing a benefits claim is critical if service-disabled veterans are to receive a fair decision There is no question for me that VA should provide veterans this assistance. We need legislation now to secure VA's duty to assist our veterans."

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