House Veterans' Affairs Subcommittee Issues Testimony From VA Board Chairman Areizaga-Soto (Part 1 of 3)

WASHINGTON, May 3 -- The House Veterans' Affairs Subcommittee on Disability Assistance and Memorial Affairs released the following testimony by Jaime Areizaga-Soto, chairman of the Board of Veterans' Appeals at the U.S. Department of Veterans Affairs, from a hearing on April 10, 2024, on 11 bills.

The legislation includes "The Fairness for Servicemembers and their Families Act of 2023" (H.R. 2911); "The Love Lives On Act of 2023" (H.R. 3651); "The Prioritizing Veterans' Survivors Act" (H.R. 7100); "The Survivor Benefits Delivery Improvement Act of 2024" (H.R. 7150); "The Clear Communication for Veterans Claims Act" (H.R._); "The Caring for Survivors Act of 2023" (H.R. 1083); "Medical Disability Examination Improvement Act of 2023" (H.R._); "The Toxic Exposures Examination Improvement Act" (H.R. _); "The Veterans Appeals Efficiency Act of 2024" (H.R._); "Veterans Appeals Options Expansion Act of 2024" (H.R._); and "Veterans Claims Quality Improvement Act of 2024" (H.R _).

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Good afternoon, Chairman Luttrell, Ranking Member Pappas, and Members of the Subcommittee. I appreciate the opportunity to appear before you today to discuss several bills that would affect the Department of Veterans Affairs (VA) programs and services. Accompanying me today is Brianne Ogilvie, Assistant Deputy Under Secretary, Office of Policy and Oversight, Veterans Benefits Administration and Jessica Pierce, Assistant Director, Compensation Service Policy Staff.

H.R. 2911 The Fairness for Servicemembers and their Families Act of 2023

The proposed legislation would create a new section under title 38 of the United States Code that requires the Secretary of Veterans Affairs to periodically review the automatic maximum coverage under the Servicemembers' Group Life Insurance (SGLI) program and the Veterans' Group Life Insurance (VGLI) program.

Section 2(a) of the bill would require the Secretary to review the automatic maximum coverage under these programs every 3 years by measuring the statutory maximum against the Consumer Price Index (CPI) for the fiscal year (FY) ending during the preceding calendar year compared to the average of the Consumer Price Index for fiscal year 2005.

VA does not support unless amended. VA suggests revising the bill to clarify that the results of the analysis submitted to Congress should be used as a leading indicator for coverage increases, rather than for an exact amount of coverage, for the following reasons:

First, there are other measures of coverage comparison, such as coverage available in other large employer plans and military benefit associations. For many Service members, the SGLI program offers more than a typical employer plan would offer already.

Second, the SGLI program was never intended to be the sole source of life insurance coverage for Service members, but rather as foundational coverage that can be added to through commercially available supplemental coverage if desired. VA and private insurers have worked in tandem since the establishment of SGLI in 1965 to meet the needs of Service members.

Third, the administrative simplicity of offering coverage in $50,000 coverage increments, as currently provided for by law, is critical in ensuring Service members understand the coverage they have and for the uniformed services in collecting premiums. Offering coverage outside of the current increment structure would significantly increase administrative costs both for the services and for the program's primary insurer, Prudential Insurance Company of America, who administers SGLI. As the program is self-supporting, any administrative cost increases would be borne by the insureds.

Additionally, the proposed legislation does not take into consideration that coverage amount for SGLI/VGLI was increased to $500,000 on March 1, 2023. H.R. 2911 still references the prior coverage maximum amount of $400,000 and the CPI for FY 2005 when coverage was increased from $250,000 to $400,000.

Estimated General Operating Expenses (GOE) Costs: The GOE estimate for FY 2024 is $2,000 and includes salary, benefits, rent, travel, supplies, other services, and equipment. 5-year costs are estimated at $4,000 and 10-year costs are estimated to be $8,000.

H.R. 3651 The Love Lives On Act of 2023

The proposed legislation would amend titles 10 and 38 of the United States Code to improve benefits and services for surviving spouses, and for other purposes.

Section 2 of the bill would remove the delimiting date for spouses under the Marine Gunnery Sergeant John David Fry Scholarship by removing paragraph (2) from 38 U.S.C. Sec. 3311(f). It would also allow a surviving spouse to retain Fry Scholarship benefits even after remarriage.

Section 3(a) of the bill would amend section 103(d) of title 38 of the United States Code by making structural modifications and inserting a new clause which reads "[n]otwithstanding clause (ii), the remarriage of a surviving spouse shall not bar the furnishing of benefits under section 1311 of this title to the surviving spouse of a Veteran." Then within paragraph 103(d)(5), subparagraph (A) would be struck, and the remaining subparagraphs would be renumbered.

Section 3(b) provides that, beginning the first day of the first month after the date of the enactment of the bill, dependency and indemnity compensation (DIC) payments shall be resumed under section 1311 of title 38, United States Code, to an individual who is: (1) the surviving spouse of a Veteran; and who (2) remarried before reaching age 55 and the date of the enactment of this Act.

Section 7 of the bill would amend the definition of a surviving spouse for Veterans benefits under paragraph 3 of section 101 of title 38, United States Code. The bill would remove the language that requires a marriage be between members of the opposite sex. It would also remove language within the same paragraph that reads "or (in cases not involving remarriage) has not since the death of the Veteran, and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person."

VA supports with amendments and subject to the availability of appropriations. The removal of the restriction on remarriage in section 2 and the change in the definition of "surviving spouse" in section 7 would allow certain individuals to retain and use their educational assistance. However, VA recommends Congress add an explicit provision to section 2 that would reinstate eligibility for any surviving spouses who lost eligibility to the Fry Scholarship due to a remarriage and likewise add an explicit provision to section 7 (or in a new section) that would reinstate eligibility for any surviving spouses who lost eligibility to the Dependents' Educational Assistance Program due to remarriage. Resumption of entitlement is specifically addressed in section 3(b) of the bill with regard to DIC beneficiaries, and VA supports extending similar equities regarding educational assistance for survivors under section 2 and section 7 of the bill. Furthermore, the 15-year time limitation in Sec. 3311(f) being removed by section 2 is also mentioned in 38 U.S.C. Sec. 3321(b)(5)(A). To create consistency and eliminate confusion, VA recommends Congress also amend Sec. 3321(5) to read as follows:

(5) Applicability to spouses of deceased members. --The period during which a spouse entitled to educational assistance by reason of section 3311(b)(9) may use such spouse's entitlement shall not expire.

No mandatory or discretionary costs are associated with section 2.

Regarding section 3, VA supports the removal of remarriage restriction requirements for surviving spouses. The bill specifically addresses DIC benefits under 38 U.S.C. Sec. 1311, which VA reads as applying to benefits granted under both sections 1310 and 1318 of the same title. If this is not the case, then VA recommends modifying the language in the bill to ensure all chapter 13 benefits are applied consistently for each benefit type. VA notes that the bill would create a disparity between DIC beneficiaries and survivor pension beneficiaries under chapter 15, the latter of whom would remain precluded from receiving those benefits if they remarry at any age. Furthermore, VA notes this bill would also create a disparity between DIC beneficiaries and survivors who qualify for Medal of Honor special pension under Chapter 15 because benefit entitlement is restricted to remarriages after age 57.

VA has further concerns with section 3(a) of the bill. Pursuant to 38 U.S.C. Sec. 3701(b)(2) and (b)(6), certain surviving spouses are eligible for VA home loan benefits. Currently, VA relies upon a determination of the surviving spouse's eligibility for DIC benefits when evaluating eligibility for VA home loan benefits. The bill, as drafted, would create a disconnect between the requirements for DIC benefits and the requirements for home loan benefits for surviving spouses, because proposed 38 U.S.C. Sec. 103(d)(5)(C) would still bar a surviving spouse from receiving VA home loan benefits if the spouse remarries prior to age 57. While VA could implement the legislation as drafted, the inability to rely solely on the DIC determination would increase the complexity of, and likely the time needed to complete, a determination regarding a surviving spouse's home loan eligibility. VA would need to evaluate whether a surviving spouse with DIC remarried prior to age 57 as this would no longer be considered when awarding DIC benefits. Aligning the requirements for DIC and home loan eligibility would ensure a more streamlined process for determining eligibility for VA home loan benefits for surviving spouses.

VA further recommends deletion of the proposed language within section 3(b)(2)(A) stating that the resumption of DIC payments for the surviving spouse of a Veteran be restricted to remarriages that occurred prior to the surviving spouse reaching age 55. This requirement would disparately impact surviving spouses who were subject to statutory requirements in effect at the time of their benefit adjudication which resulted in the denial or termination of DIC benefits due to a remarriage that occurred at an age greater than 55. An example would be a surviving spouse who was afforded DIC benefits per the reduction of remarriage age restrictions from 57 to 55 per Public Law 116-315, the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, Sec. 2009 (January 5, 2021). The main concern for the disparate impact would be that Public Law 116-315 did not incorporate language similar to that of the Love Lives On Act of 2023 regarding the express requirement to resume the payment of DIC benefits for all potentially affected individuals. Instead, those surviving spouses who were either subject to DIC benefit denial or termination due to a remarriage between the ages of 55 and 57 would have to reapply to have their benefits granted or restored. As such, the language of the current bill would continue to disadvantage that population. The removal of the bills' language within section 3(b)(2)(A) would not detract from the intent of the bill and would result in a more clear, consistent, and equitable application.

Additionally, VA cites concerns regarding its ability to implement section 3(b) as well as the timeframe provided in the bill for doing so. The bill as written implies that VA will be responsible for identifying all potential claimants who were either denied or their eligibility terminated for DIC due to remarriage. This would require extensive outreach efforts, identification of individuals who are not currently in receipt of benefits, and significant implementation time.

Mandatory benefit costs associated with section 3 are estimated to be $15.3 million in 2024, $137.7 million over 5 years, and $327.7 million over 10 years. Additional time would be needed to estimate administrative costs.

VA supports section 7, and views the amendments to 38 U.S.C. Sec. 101(3), which would result in the removal of language, as being supportive to the surviving spouses of Veterans. The removal of "a person of the opposite sex" conforms with the Supreme Court decision in Obergefell v. Hodges, which ruled that marriage is a fundamental right under the Fourteenth Amendment to be afforded to same-sex couples and extends to the application of benefits subject to said marriage.

VA also supports the bill's proposed removal of language that results in the denial or termination of benefits for a survivor who lives with another person and holds themselves out to the public as being the spouse of such other person, without necessarily being legally married to said individual. The language under 38 U.S.C. Sec. 101(3) as currently written has resulted in many survivors electing to be in a committed relationship but choosing not to remarry nor hold themselves out as the spouse of another individual in order to maintain benefit eligibility. The removal of the specified language supports the overall intent of the bill to be more claimant friendly.

However, VA again recommends that Congress add an explicit provision to section 2 that reinstates eligibility for any surviving spouses who lost eligibility to the Fry Scholarship due to remarriage and likewise an explicit provision to section 7 or elsewhere that reinstates eligibility for any surviving spouses who lost eligibility to Dependents' Educational Assistance Program due to remarriage.

No mandatory or discretionary costs are associated with section 7.

Finally, VA defers to the Department of Defense (DoD) on sections 4, 5, and 6 of the bill, as these sections amend title 10 of the United States Code, which pertains to programs and services administered by the United States Armed Forces.

H.R. 7100 The Prioritizing Veterans' Survivors Act

The proposed legislation would amend 38 U.S.C. Sec. 321(a) to reorganize the Office of Survivors Assistance (OSA) under the Office of the Secretary of Veterans Affairs.

VA opposes this bill. OSA strives to serve as a resource regarding all benefits and services furnished by VA to Survivors and dependents of deceased Veterans and members of the Armed Forces. Furthermore, OSA works to pursue matters related to policy, legislation, and other initiatives to benefit such survivors and dependents.

OSA is currently located within the Veterans Benefits Administration (VBA). This strategic placement under VBA provides them access to business lines that administer survivor benefits and allows them to collaborate directly with these business lines on beneficial initiatives for survivors. Furthermore, it provides OSA the opportunity to relay insight received from their survivor engagements to VBA. This allows OSA to utilize this information in pursuits with VBA to advance legislative and regulatory opportunities that best serve survivors.

Additionally, this placement allows OSA to directly access expert knowledge

about survivors' benefits, by working directly with program offices which provide services and benefits to which survivors may be entitled. This access to knowledge is vital for streamlining communication and allows OSA to ensure any impact to survivors is considered when VBA is drafting or reviewing policy or legislative initiatives.

Relocating OSA would inhibit the efficient processes currently in place for pursuing policy and legislative changes through VBA. These existing avenues allow OSA to effectively advocate for improvements to survivor benefits and services. Disrupting the streamlined processes would affect established lines of communication with VBA and detrimentally impact individuals that this office serves.

H.R. 7150 The Survivor Benefits Delivery Improvement Act of 2024

The proposed legislation would amend title 38 of the United States Code, to direct the Secretary of Veterans Affairs to improve equitable access to certain benefits under the laws administered by the Secretary and to improve certain outreach to individuals who served uniformed services and dependents of such individuals, and for other purposes.

Section 2(a) would provide the short title for this section 2 as the Survivor Benefits Data Collection Act of 2024.

Section 2(b)(1) would create a new section 38 U.S.C. Sec. 5321, that requires the Secretary to develop a method to collect certain demographic data from recipients of survivors' benefits in consultation with certain VA advisory committees. Based on this collection, proposed section 5321 would require VA to designate certain demographics as underserved, and include demographic information in the submission of VBA's annual reports. Proposed section 5321 would also establish definitions for certain terms related to this information collection and reporting.

Section 2(b)(2) would set deadlines for VA to develop methods to collect the above demographic information and make initial designations regarding underserved demographics.

Section 2(c) would require VA to develop and submit to the House and Senate Committees on Veterans' Affairs an outreach and education strategy for raising awareness regarding burial benefits under 38 U.S.C. Sec. 2303 among covered dependents and Veterans who belong to an underserved demographic.

Section 2(d) would require VA to conduct an assessment of the resources of the OSA and develop a strategy to ensure the availability of resources necessary for the function of such office.

Section 3(a) would provide the short title for section 3 as the Survivor Solid Start Act of 2024.

Section 3(b) would amend chapter 63 of title 38, United States Code, in several places to redesignate paragraphs, add a definition for "covered individual," and replace "Veterans" with "covered individuals" where applicable. Additionally, this bill would require VA to provide outreach services for surviving eligible dependents of deceased Veterans.

Section 3(c) would require VA to create full-time equivalent positions focused on survivors' benefits at VA call centers.

VA supports section 2, if amended, and subject to the availability of appropriations. VA highlights the need to edit the proposed 38 U.S.C. Sec. 5321(a)(1)(A) as that proposed subparagraph uses an erroneous description that is inconsistent with existing law. The proposed paragraph uses the term "disability and indemnity compensation" while incorporating by reference to "chapter 13 [of title 38 U.S.C.]". However, under chapter 13, the term is properly referred to as "dependency and indemnity compensation" (commonly referred to as DIC). VA recommends using the term as written and defined under chapter 13, to avoid any confusion.

VA notes concern that the collection of the data points specified in proposed 38 U.S.C. Sec. 5321(f)(2)(A)-(E) will require not only development, but also multiple levels of concurrence prior to approval from the Office of Management and Budget (OMB) to utilize those data points. It is presumed that future demographic data requests would also need to be incorporated within existing VA forms, which would result in significant additional work on the part of VA to implement this bill given the need to review, revise and approve numerous administrative claim forms, as well as obtain the necessary clearances from OMB and consultations with other entities as specified in paragraph (b) of the proposed bill. Additionally, under current procedures, certain awards of VA benefits can be made via automated processes without the collection of additional data--for example, in certain situations, surviving spouses who were a dependent on a Veteran's award can be granted benefits through automation if VA has sufficient information already on file at the time of the Veteran's death. The Secretary understands that failure to provide information is not to be considered in the receipt of benefits but, nevertheless, the agency would be in a position of issuing benefits without even having attempted to collect the data specified by this bill as existing systems would not necessarily have captured this data previously. For all of these reasons outlined above, VA recommends the 180-day implementation date under section 2(b)(2)(A) be expanded to an implementation window of 24 months from the date of enactment to allow for adequate evaluation of forms as well as the development, testing, and implementation of systems.

VA also views the implementation under section 2(b)(2)(B) of the proposed legislation as not being feasible, and again recommends the implementation window be expanded to 24 months. This would provide sufficient time for data collection and analysis prior to VA drafting designations of "underserved demographics under subsection (c) of such section 5321" for Secretary of Veterans Affairs proclamation.

VA does not support section 3. VA highlights that the mandated frequency of once per quarter in the proposed language for 38 U.S.C. Sec. 6307(c) is a more frequent cadence than the outreach provided to separating and retiring Veterans under the VA Solid Start (VASS) program (38 U.S.C. Sec. 6320) and could be seen as disparate treatment. The bill would also require that the outreach be by "mail, email, and telephone," which could be read as requiring all three forms of communication be used every time. VA agrees with the concept of using all three forms of outreach as outlined but does not agree with using all three forms of communication concurrently. As a requirement of VASS, attempts at contact are made with newly retired and those newly separated under said program in 3 general windows of time: 0-90 days post-separation, 91-180 days, and 181-365 days. VA recommends mirroring this cadence for survivors and supports using the date VA is notified of the Veteran's death to start the notification process timeline.

The proposed amendments to 38 U.S.C. Sec. 6307 made by section 3(b)(5) of the bill require that outreach be conducted with eligible dependent(s) of a Veteran. Generally, VA is only notified of the deaths for individuals who are in receipt of VA benefits, as opposed to any and all Veterans who once served in the uniformed services. Thus, eligibility is not determined until a claimant files a claim for benefit unless they were previously identified as a dependent on the Veteran's award. If VA was never provided information that identifies a dependent, then it would not be possible for VA to conduct outreach to those individuals.

As drafted, and as it pertains to beneficiaries that VA has on its rolls, the outreach services are to continue until the eligible dependent files a claim for a benefit; however, 38 U.S.C.Sec. 5101(a)(1)(B) allows for benefits to be paid to survivors who have not filed formal claims if the record contains sufficient evidence to establish entitlement. Because of this, VA would omit outreach to these survivors who receive benefits paid without a claim filed. Furthermore, VA may take notification of death from any individual, so it would be reasonable for benefits to be paid without VA engaging with an eligible dependent at the time of the Veteran's death.

VA further highlights that the wishes of those who no longer want to be contacted by VA are respected by VASS. The precedent created by VASS's existing approach to outreach appears to conflict with this proposed bill's requirement in section 3(c)(1)(A) mandating that VA continue contacting a survivor until they file a claim without any regard for a survivor's communicated wishes.

Finally, VA recommends broadening the contact information provided to eligible dependents under proposed section 6307(c)(2)(A) to include "appropriate contact information for additional support" or similar. VA notes that the provision of contact information for only the OSA would result in an unmanageable caseload for that office. By broadening the language in the bill, VA would be able to determine the most appropriate office(s) to refer eligible dependents, to include but not limited to OSA. Similarly, VA provides that the removal of the specified full-time equivalent position allocation in this section would allow for VA to properly assess staffing needs to support the required outreach.

Estimated GOE Costs: The GOE estimate for FY 2024 is $491,000 and includes salary, benefits, rent, travel, supplies, other services, and equipment. 5-year costs are estimated at $2.6 million and 10-year costs are estimated to be $5.6 million.

H.R. XXX The Clear Communication for Veterans Claims Act

The proposed legislation would direct the Secretary of Veterans Affairs (Secretary) to enter an agreement with a Federally funded research and development center (FFRDC) to assess notification letters sent to claimants for benefits administered by VA and would require the Secretary to make changes to those notice letters in conformity with recommendations provided by the FFRDC.

Section 2(a) directs the Secretary to enter into such an agreement within 30 days after enactment of the bill.

Section 2(b) specifies that the FFRDC assessment shall include whether

currently used notification letters can be feasibly altered to reduce paper consumption by, and cost to, the Federal Government. It also requires the FFRDC to include its recommendations for how the Secretary may, in compliance with laws administered by the Secretary, make such notices clearer to claimants, better organized, and more concise.

Section 2(c) provides that the Secretary would have no more than 90 days following receipt of the FFRDC's assessment to implement the proposed recommendations and to submit a copy of the report to the Committees on Veterans' Affairs of the Senate and House of Representatives.

Finally, Section 2(d) of the bill provides a definition of the term "FFRDC," and specifies that the terms "claimant" and "notice" as used in the bill have the same meanings given such terms in 38 U.S.C. Sec. 5100.

VA cites concerns with this bill. While VA generally supports the intent of the bill, the deadlines it imposes are challenging, unrealistic, and would be difficult to implement.

VA notes concern with the language specifying that the FFRDC's report would be binding upon the Secretary. This provision leaves no room for VA to refine or improve upon the recommendations, should the need arise. While an FFRDC's report would provide an unbiased third-party view of the problem, VA views research and development processes as being designed to create recommendations, not policy. Moreover, VA must exercise caution to ensure that its notification letters comply with existing statutes and controlling case law (which is protean in nature). Although the bill directs the FFRDC to make recommendations in conformity with laws administered by the Secretary, VA is concerned that it should not adopt those recommendations on a wholesale basis without independently assuring that they did not put the Agency at risk for non-compliance with its legal duties to claimants.

VA is concerned that the bill's requirement to enter into an agreement with a FFRDC within 30 days following enactment of the bill may hinder VA's ability to ensure an agreement is reached with the FFRDC most appropriate for the task under VA's contracting requirements.

Additionally, VA is concerned that the bill's mandate to implement the FFRDC's recommendations within 90 days of receipt would be challenging at best and potentially unachievable without significant risk. VA notes that making changes to notice letters is a thoughtful, considered, deliberative, time-consuming, and complicated process which requires updating existing information technology systems. VBA claims processors handling compensation and pension claims operate in a paperless environment and utilize the Veterans Benefits Management System (VBMS) as the primary system to generate letters to Veterans and claimants. Updates to VA's technology systems, to include VBMS, are prioritized far in advance. Implementation of the letter changes required by the bill, if required within 90 days, could require VA to displace current priority updates that have a more substantial impact on Veterans.

VA views a 90-day window to implement the recommendations in the assessment as required in section 2(c)(2) as not being feasible given the needed technological and system upgrades that would be required. VA recommends an implementation window of at least 24 months from the date of enactment to allow for adequate system development, testing, and implementation. VA notes that these enhancements are required since letters to claimants are not constructed in one uniform manner. Letter generation is complex and current templates often require extensive editing, concurrence, deployment testing, and validation from subject expert, legal, regulatory, and technological standpoints to ensure that all case-specific factors for individual claimants can be captured.

Additionally, VA notes that legislative action is not required for an enterprise-wide review of VA's letters. If VA internally reviews its enterprise-wide letters and reports on the findings, this would result in a cost savings to the Government. Furthermore, VBA reviews and updates benefits claim letters internally on a regular basis.

For example, VBA utilizes a Language Change Control Board (LCCB) to review and approve all disability compensation and pension-related language change requests for letters, glossary texts, fragments, or any other external facing communications. The LCCB is responsible for ensuring that identified language changes are tracked, reviewed for accuracy, and sent to implementation in a timely manner. The LCCB is made up of members from various staffs across multiple VBA business lines. Requests are generated by statutes, regulation, policy, or procedure being implemented, or when deficiencies within our products are found. In addition, in 2023, a collaborative workgroup including members from VBA and the Veterans Health Administration (VHA) has reviewed all military sexual trauma-related letter language to ensure it is traumainformed, including consultation with Veterans Service Organizations (VSOs).

Focusing on human centered design (HCD), VBA collaborated with the Veterans Experience Office from October to December of 2023 to conduct HCD co-design workshops to redesign Character of Discharge letters sent to Veterans with an Other Than Honorable discharge. The objective was to enhance clarity, accessibility, and usefulness of these letters for Veterans seeking to understand their eligibility for benefits from the VA. VA is currently working to implement the findings.

In 2019, VBA's Insurance Service (INS) completed a review of all VA Insurance letters to reduce the number of letters being used based on usage and to revise content into a more reader-focused format. With the new Information Technology (IT) system INS recently implemented, the revisions from the 2019 project were used as a basis for the letter templates in the new SmartComm system. INS also moved toward online policy access, information and E-Forms, and electronic communications via email and Short Message Service text messages.

VA contracts with Prudential's Office of Servicemembers' Group Life Insurance (OSGLI) to administer SGLI and VGLI programs under VA Oversight. OSGLI regularly reviews their outgoing communications and updated their VGLI outreach materials in 2022.

VBA's Veterans Readiness and Employment (VR&E) Service participated in a workgroup in 2020, whose goal was to simplify and strengthen VBA's communication with Veterans. As a result, in July 2020, VR&E Service updated and released 15 letters to accomplish this goal.

VA further notes that there have been recent efforts to quantify the number of claims for which decision letters generated outside of the claims processing environment are required to be used, such as letters regarding pension benefits. Those efforts have yielded progress in incorporating advancements in modernizing letter templates.

H.R. 1083 The Caring for Survivors Act of 2023

The proposed legislation would amend title 38 of the United States Code, to improve and expand eligibility for DIC paid to certain survivors of certain Veterans, and for other purposes.

Section 2(a) of the bill would increase the DIC rate in 38 U.S.C. Sec. 1311(a)(1) from $1,154 to an amount equal to 55% of the monthly 100% disability compensation rate in effect under 38 U.S.C. Sec. 1114(j). This would adjust the current DIC rate of $1,612.75 effective December 1, 2023, to $2,132.47 (55% of $3,877.22 which is the 100% disability compensation rate in effect as of December 1, 2023).

Section 2(b)(1) would make the amendments made by subsection (a) effective for any payments made that are 6 months after the date of enactment. Section 2(b)(2) would require VA, for months beginning after the date that is 6 months after the date of enactment, to pay dependents and survivors income security benefits under section 38 U.S.C. Sec. 1311 to an individual eligible predicated on the death of a Veteran before January 1, 1993, in a monthly amount that is the greater of the following:

1. The amount determined under section 1311(a)(3), as in effect on the day before the date of enactment.

2. The amount determined under section 1311(a)(1), as amended by subsection (a) of this legislation.

Section 3 of the bill would amend 38 U.S.C. Sec. 1318(b)(1), to reduce, from 10 years to 5 years, the period in which a Veteran must have been rated totally disabled due to service-connected disability in order for a survivor to qualify for DIC benefits. It would further add a new subsection (a)(2) to state the following: "In any case in which the Secretary makes a payment under paragraph (1) of this subsection by reason of subsection (b)(1) and the period of continuous rating immediately preceding death is less than 10 years, the amount payable under paragraph (1) of this subsection shall be an amount that bears the same relationship to the amount otherwise payable under such paragraph as the duration of such period bears to 10 years."

VA supports, if amended, and subject to the availability of appropriations. Under 38 U.S.C. Sec. 1311(a)(1), DIC is paid to a surviving spouse at the monthly rate of $1,154, which is increased in accordance with any increase of benefit amounts payable under title II of the Social Security Act pursuant to section 1311(f)(4). The current rate paid under section 1311(a), effective December 1, 2023, is $1,612.75. DIC is also paid to a surviving spouse, and to a child of a deceased Veteran, if the Veteran's death was not the result of their own willful misconduct and they were continuously rated totally disabling for specific periods of time prior to their death as outlined in 38 U.S.C. Sec. 1318(a) and (b).

VA notes that Public Law 118-6 requires VA to increase the rate paid under section 1114 in addition to the rates paid under section 1311. VA views section 2(a) of this bill as allowing for the use of the current rate paid, as of December 1, 2023, under section 1114(j) of $3,621.95 in calculating the benefit provided under proposed section 1311(a)(1), as well as any future increases to section 1114(j).

VA further notes that section 2(b)(2) of the bill would require VA to pay the greater of the benefit under proposed section 1311(a)(1) and "[section 1311(a)(3)], as in effect on the day before the date of the enactment of this Act." VA infers that the intent of this provision is to use the rates under section 1311(a)(3) at that fixed point in time, even if those statutory rates are later changed. However, the statutory language is somewhat ambiguous because the rates payable under section 1311(a)(3) may change even if the text of that provision remains unchanged. Congress routinely enacts annual cost-of-living adjustments (COLA) increasing DIC rates, including the section 1311(a)(3) rates. See, e.g., Public Law 118-6. VA believes the intent of the bill is to use the rate that would have been payable on the day before the date of enactment under section 1311(a)(2) and any COLAs in effect on that date. However, the bill language as drafted would also be susceptible to the interpretation that the rate should be increased by any subsequent COLAs because such rate would still be predicated on section 1311(a)(3) "as in effect on the day before the date of enactment of this Act." This ambiguity could be removed by adding language at the end of section 2(b)(2)(A)(i) of the bill saying, "including any applicable statutory cost-of-living increases in effect on that day."

Additionally, due to the extensive information system updates required to implement and the enhanced ability to conduct oversight on said implementation, VA recommends that section 2(b)(1) be amended with an effective date of 1 year after the date of enactment.

Regarding section 3 of the bill, VA views proposed section 1318(a)(2) as supporting the families of Veterans who die with a total disability rating that existed for more than 5 years, but less than 10 years immediately preceding death. For individuals who qualify for DIC under proposed section 1318(b)(1) due to a Veteran's disability continuously rated totally disabling for a period of more than 5 years but less than 10 years immediately preceding death, VA views the proposed statute as more generous than existing law in that VA may provide DIC benefits to such individuals. However, VA views the proposed language of subsection 3(1)(B) as incorporating an unclear and potentially overly complex application for survivor beneficiaries, the agency, and external partners. The proposed language of 1318(a)(2) creates a relationship between a 10-year rating requirement for full benefit entitlement and a 5-year rating requirement for baseline entitlement per amendments to subsection (b)(1). The apparent effect would allow for DIC benefits to be granted based on a shortened duration of time that a Veteran must be continuously rated totally disabled, but then disallow full benefit entitlement through the utilization of an unclear payment structure.

Specifically, the benefit provided by VA to the families of Veterans with more than 5 years, but less than 10 years of disability rated as totally disabling under the proposed statute (proposed beneficiaries) would "bear[] the same relationship" to the full benefit amount as the length of totally disabling rating "bears to 10 years." Using a Veteran with exactly 5 years of total disability rating as an example, exactly 5 years is half of 10 years, meaning a DIC benefit based on exactly 5 years of total disability rating would have exactly the same relationship to half of the benefit paid based on 10 years of total disability.

However, it is unclear how precisely VA should calculate the relationship. Using a Veteran with 5 years and 6 months of total disability rating as an example, VA would like to clarify if Congress's intent is for VA to provide 55% of the benefits it would provide based on 10 years of total disability. Or, is the intent for VA to round up to 60%? If the Veteran has 5 years and 7 months, VA would like to clarify if the intent is to provide 55.8% of full DIC benefits. Or should VA round up to 56%? The issue of precision and rounding could be challenged based on additional days. VA requests that Congress provide clear standards to avoid potential confusion and litigation.

VA does not currently reduce DIC benefits in any scenario along the lines it would be required to under the proposed language. This novel requirement would be operationally difficult and would appear to preclude automation, at least initially. VA currently is able to automate, and therefore expedite, provision of DIC benefits pursuant to section 1318 because VA knows exactly how long a Veteran has received a total disability rating. The bill would require VA personnel to research and adjudicate to determine whether the family of a Veteran with more than 5, but less than 10 years of total disability would be eligible for the greater benefit paid under section 1311 for a service-connected cause of death, then determine how much to reduce the benefit if only section 1318 DIC were available.

This calculation is further complicated by the incremental structure of section 1311 used to calculate DIC benefits, which allows VA to supplement the base rate when a number of different conditions are met. VA would be unsure if the application of "bears the same relationship to" language would apply to solely the underlying DIC benefit rate, or if VA is meant to extend such application of benefit reduction to any additional supplemental allowance. For example, section 1311(a)(2) allows VA to pay an additional $246 per month of DIC if the deceased Veteran received a total disability for 8 years before death and was married to the surviving spouse for those 8 years. Sections 1311(a)(2) and 1318(b)(1) currently operate separately and apply separate standards, and not all proposed beneficiaries would qualify for DIC benefits under section 1311(a)(2). Section 1311(a)(2) is not the only potential supplement to which VA would have to apply the reduction. See, e.g., 38 U.S.C. Sec. 1311(b) (allowing VA to provide an increase of $286 per month per child under 18 years old).

VA views the potential application of the proposed language for subsection 1318(a)(2) as being inconsistent with the benefit's current intent and program integrity. As such, VA recommends removal of section 3(1) of the bill to allow the proposed amendments under section 3(2) to achieve the primary intent of DIC expansion. The effect of the proposed amendments under section 3(2) of the bill, on their own, would result in clearer and more consistent program application. Removing the novel adjudication calculations and solely retaining the amendment to section 1318(b)(1) is sufficient to fulfill the intended purpose of expanding DIC benefits to survivors of Veterans with a totally disabling disability rating by shortening the duration of time required for the disability to have been continuously rated. It would also maintain allowing VA to quickly implement the expansion while retaining the existing automation that allows the families of deceased Veterans to receive DIC benefits as quickly and accurately as possible.

The bill as written does not contain an effective date for section 3. VA would likely interpret any new benefit eligibility created by this section to be effective based on the date of enactment of the bill, but not authorize retroactive payments. This outcome is complicated by the timeline for applying to receive DIC benefits. Under 38 U.S.C.

Sec. 5110(d), an application received more than a year after death cannot result in VA providing benefits retroactive to the date of death, but the applicant would qualify for DIC benefits from the date of application forward. VA recommends the bill be amended to add an explicit effective date.

Mandatory costs associated with H.R. 1083 are estimated to be $0 in 2024, $14.6 billion over 5 years, and $40.3 billion over 10 years.

Mandatory costs associated with section 2 are estimated to be $0 in 2024, $13.8 billion over 5 years, and $36.9 billion over 10 years.

Mandatory costs associated with section 3 are estimated to be $0 in 2024, $814.5 million over 5 years, and $3.4 billion over 10 years.

Additional time would be needed to estimate administrative costs.

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(Continues with Part 2 of 3)

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Original text here: https://docs.house.gov/meetings/VR/VR09/20240410/117069/HHRG-118-VR09-Wstate-Areizaga-SotoJ-20240410.pdf