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The Non Commissioned Officers Association of the USA (NCOA) thanks the distinguished Chairman for your invitation to appear and present testimony on the processing of Persian Gulf War Claims and to comment on what appears to be DVA's Intention to limit liability regarding smoking-related diseases. Your Interest, Mr. Chalaman, in both of these issues, as evidenced by this hearing, is appreciated. The Association also looks forward to commendng

on VA's strategies to implement the Government Performance and Results Act (GPRA).

PROCESSING OF PERSIAN GULF WAR CLAIMS

NCOA's volume of activity in assisting veterans process their claims for Persian Gulf War

illnesses has not been dramatic. The modest level of activity the Association has experienced

Is attributable to the fact that many of NCOA's members are still serving in the Armed

Forces. The Association is aware, and therefore advises this Subcommittee, that many Armed Forces members still on active duty are reporting and receiving treatment for

conditions and symptoms Identical to those which other veterans have reported to VA under

the general classification of Persian Gulf Syndrome. Therefore, NCOA's concem regarding processing of Persian Gulf claims is two fold. The Assoclation is concerned not only with those veterans who are currently in the system but also for those future veterans who will rely

on VA to fairty and expedidously adjudicate their claims.

NCOA has experienced many of the widely reproted Impediments in processing Persian Gulf

claims. The Area Processing Office's are a prime example of good intentions gone awry. While VA's Intent was w give priority to Persian Gulf claims and simultaneously develop expertise on these issues along with standardization, none of this has occurred. Evidence of

this is revealed in the approval rates for the same condidons and symptoms which vary

significantly between the APOʻs. The problem was not necessarily the APO concept but rather the way he was implemented and managed.

Apparently, VA now intends to re-direct Persian Gulf Claims to the appropriate Regional

Office with future Perslan Gulf claims to be processed by the RO's also. It is immaterial to

NCOA where these claims are processed because arguments can be made for and against

both the APO's and RO's.

The Important factor to remember is that APO's were not properly staffed and trained to

handle the increased claims workload they were expected to process. VA Headquarters did

not, in NCOA's view, exercise their responsibility to ensure standardization in adjudication

between the APO's. Shifting responsibility to the RO's will not solve this situation and may,

In all likelihood, complicate it even further.

Another major Impediment in the processing of Persian Gulf claims has been the burden for claims development. Few people, and least of all the individual veteran, can keep apace with

the VA changes in procedures. VA has changed the claims development procedures three

times in five years and NCOA has been led to believe a fourth change is being finalized. In

this Association's view, there is plenty of confusion among veterans and their service

organizations and VA has done a good job in keeping it that way.

Several questions beg for an answer at this point and NCOA is hopeful that this

Subcommittee will elicit straight forward answers from VA officials that brings accountability

to these problems. Among these are:

> If VA could not property resource and train APO staff, what assurances do we

have that they will do so at 57 RO's? What are VA's plans to shift resources to those

RO's that will bear a disproportionate burden for these clalms?

> What measures will be put into effect, at either the APO's or RO's, that will ensure

standardization in the Persian Gulf clalms adjudication process?

> What measures will VA put into effect that fulfills the spirit and intent of " duty to

assist" the veteran claimant?

> After more than five years Into this issue, why can't VA come to a conclusion on

the evidence needed to support a Persian Gulf Claim? What measures will VA

employ to notty individual veterans, who have claims in the plpellne, that the rules

have changed?

> What measures will VA headquarters put into effect, at either the APO's or RO's,

that brings accountability to this process? VA has readily admitted that Persian Gulf

claims have been mishandled", yet no one is ever held accountable.

In NCOA's opinion, Mr. Chairman, accountability must be brought to the Persian Gulf claims

process and the entire claims process as well. Much of what we are experiencing with Persian

Gulf claims is a systemic VA problem that has existed for many years. The only difference

Is that the public spotlight is now shining brightly on these veterans. It is unfortunate that it

took a group of sick Gulf War veterans to elevate public attention to the problem. It is even

more unfortunate that their rightful claim to benefits is being delayed or denied as a

consequence of a bureaucratic, almost uncaring, system.

VA LIABILITY REGARDING SMOKING RELATED DISEASES

Apparendy, Mr. Chairman, legislation has been drafted that would limit VA's llability for

smoking related diseases. That legislation, for whatever reason, has not been shared by VA

with this Association. Therefore, our comments are based on press reports and quotes

attributed to the Secretary of Veterans Affairs.

As the members of this Subcommittee know, smoking and the use of tobacco products, up

undi recently, was widely accepted, encouraged and practiced in the military services. The

Subcommittee members also know that Congress subsidized its availability, not only for those

provided in rations, but for cigarette and tobacco sales at military outlets ashore, at sea and

In foreign countries. The military often set aside tme and a place that created and

encouraged a culoure of smoking in the military. This Subcommittee knows these things and

VA's General Counsel also knows and recognizes them (Precedent Opinion 2-93).

In NCOA's view, the above is sufficient for this Association to oppose VA's effort to llunk

their llability on this issue. The Association considers it unfortunate that the Secretary of Veterans Affairs chose the words "ilfe style choice" in announcing his intendon. If Ilfe style

choice is a determining factor in establishing liability, VA long ago should have limited their

llability for drug and alcohol abuse. Yet, in 1995, VA estimated that it spent $2 billion of

its health care budget to treat veterans with substance abuse disorders, of whom 74% had

no service-connected conditions whatsoever. If life style choice is to become a determining

factor in liability questions, what does this mean for the thousands of veterans whom today

VA provides some of the most expensive health care for the treatment of AIDS?

In NCOA's view, there is more than just "limited or suggestive evidence" to suggest that VA

has a llability on this question. The Association is also fearful that this rush to "polldical

correctness" will become the convenient reason for any respiratory disorder or cancer when

the etiology is uncertain. The implications are many Mr. Chalrman and NCOA would urge

this Subcommittee to be thorough and methodical in your examination of any legislative

proposal on this issue.

Thank you.

POST-KRARINO QUESTIONS
CONCERNINO TES MAY 14, 1997

BARINO ON
COMPENSATION NIID PESISION SERVICE

OPRIATIONS
OSING OP PRINCIPLES, PROCESSING OF PERSIAN GOLJ VAR CHAINS,
MED PROPOSED LEGISLATION ON SMOKINO-RELATED DIKABILITIES

FOR THE DEPARTMENT OF VETERANS ATVIRS

TRON THE HONORABLE JACK QOIMI
CHIRIAN, SUBCOMITTEE ON BENEFITS
CONOCITTEE ON VETERANS' AIRS
0.8. HOUSE OF REPRESENTATIVES

Quortion 11 Please give us a brief history of va's actions regarding caurpensation of moking-related illnesses and explain thVi's position on this issue. Answer: On January 13, 1993, the General Counsel issued VAOPGCPREC 2-93, which concerned entitlement to benefits for disabilities resulting from tobacco use while in service. The essential holdings of that opinion were that tobacco use does not constitute drug abuse and that direct service connection of disability or death may be established if the evidence shows that injury or disease resulted from tobacco use during active military, naval, or air service. After the General Counsel precedent opinion was released, the Compensation and Pension Service (C&P) began to develop guidelines for adjudicating tobacco use claims. Pending issuance of these guidelines, regional offices were instructed to defer action on these claims and to maintain a log of all such claims until the guidelines could be issued. Upon review of the proposed guidelines, the General Counsel suggested that we address the adjudication of tobacco-related claims by regulation. Several regulatory approaches were drafted and discussed within VA, but the Secretary ultimately determined that a regulatory approach was not the most appropriate way of dealing with the issue and directed that claims for smoking-related disabilities be adjudicated under existing statutes, regulations, and case law. It was then that the C&P Service developed the guidelines contained in a letter sent to all regional offices on January 28, 1997. (A copy of this letter is attached.) Concurrently with our issuance of the guidance letter, we asked the Veterans Health Administration to advise their physicians about tobacco claims and of the necessity for medical opinions with respect to the etiology of the particular disability suffered by a veteran. On February 14, 1997, the Under Secretary for Health sent Information Letter 10-97-008 to all field facilities informing them of new guidance for compensation and pension examinations when claims are based on tobacco use. (A copy of this letter is attached. ) Due to concerns involving claims alleging nicotine dependence as a result of in-service smoking, the C&P Service requested an opinion from the General Counsel on that issue. Before ruling on that subject, the General Counsel asked the Under Secretary for Health to provide a medical opinion on whether nicotine dependence could be considered a disease or injury for compensation purposes. In a May 5, 1997, memorandum, the Under Secretary for Health, stated that nicotine dependence may be considered a disease for compensation purposes. After consideration of that memorandum, the General Counsel issued VAOPGCPREC 19-97, Secondary Service Connection Based on Nicotine Dependence, on May 13, 1997. The General Counsel held that a determination as to service connection depends upon whether nicotine dependence may be considered a disease for purposes of the laws governing veterans' benefits, whether a veteran acquired a dependence on nicotine in service, and whether that dependence may be considered the proximate cause of disability or death resulting from the use of tobacco products. The President's budget for fiscal year 1998 includes a request for legislation that would preclude service connection for most smokingrelated disabilities. The provision would amend title 38, United States Code, to prohibit service connection of disabilities or deaths based solely on their being attributable, in whole or in part, to the use of tobacco products during service. The proposal would not preclude establishing service connection for disabilities which were manifested during active duty service or within applicable presumptive periods. If enacted, such a prohibition would be effective prospectively, so regardless of the proposed legislation, we still must deal with the currently pending claims. If this legislation is not enacted, we will process claims under existing regulations and statutes, and under any additional regulations which may be promulgated in order to insure that these claims are adjudicated properly. Question 3: v is currently readjudicating over 11,000 qult war clalas. Please describe what the department 1. finding during this process and what data is being kept to furthor Porsian Quit Illnous resourch?

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