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. Chairman, in both of these issues, as evidenced by this hearing, is appreciated. The Association also looks forward to commenting 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 concern regarding processing of Persian Gulf claims is two fold. The Association 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 fairly and expeditiously 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 to 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 conditions and symptoms which vary significantly between the APO's. The problem was not necessarily the APO concept but rather the way it was implemented and managed. 2 Apparently, VA now intends to re-direct Persian Gulf Claims to the appropriate Regional Office with future Persian 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 properly 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 claims? > What measures will be put into effect, at either the APO's or RO's, that will ensure standardization in the Persian Gulf claims 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 notify individual veterans, who have claims in the pipeline, 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 Apparently, Mr. Chairman, legislation has been drafted that would limit VA's liability 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 until 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 time and a place that created and encouraged a culture 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 limit their liability on this issue. The Association considers it unfortunate that the Secretary of Veterans Affairs chose the words "life style choice" in announcing his intention. If life style choice is a determining factor in establishing liability, VA long ago should have limited their liability 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 liability on this question. The Association is also fearful that this rush to "political correctness" will become the convenient reason for any respiratory disorder or cancer when the etiology is uncertain. The implications are many Mr. Chairman and NCOA would urge this Subcommittee to be thorough and methodical in your examination of any legislative proposal on this issue. Thank you. POST-HEARING QUESTIONS CONCERNING THE MAY 14, 1997 HEARING ON COMPENSATION AND PENSION SERVICE OPERATIONS USING GPRA PRINCIPLES, PROCESSING OF PERSIAN GULF WAR CLAINS, FOR THE DEPARTMENT OF VETERANS AFFAIRS FROM THE HONORABLE JACK QUINN Question 1: Please give us a brief history of VA's actions regarding compensation of smoking-related illnesses and explain the VA'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.) After 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. 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. 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. If Question 2: VA is currently readjudicating over 11,000 Gulf War claims. Please describe what the department is finding during this process and what data is being kept to further Persian Gulf Illness research? |