Statement of

The Retired Enlisted Association

 Before the

  Veterans’ Disability Benefits Commission

 May 10, 2005

 Presented By

 Deirdre Parke Holleman, Esq.

National Legislative Director

The Retired Enlisted Association 

Members of the Commission, it is an honor for The Retired Enlisted Association to present our concerns during your opening public session. You have been given an important mandate- to study, analyze and suggest possible improvements to the benefits programs granted under the laws of the federal government to “compensate and assist veterans and their survivors for disabilities and deaths attributable to military service.” This would be a weighty charge at anytime in America’s history but during wartime it is an essential task. We are pleased to briefly outline the concerns of TREA members about the present system and how we believe they can be improved. 

Life in the Military 

The life that our Service members (and their families) volunteer for and live is unique in this country. It is understood by all that they will be on call 24/7. They will move their entire household with little warning again and again and they will live for long periods of time separated from their loved ones. They will live in unhealthy climates. And at any moment they may be asked to give their life to protect us all. This is a special way of life that has unique risks and pressures and is the reason that the Federal Government has created a singular disability system.  

The life of service in the military is full of seen and unseen threats; recognized and unrecognized dangers. Acknowledging these risks the Service member waives his rights to sue under tort or claim under workmen’s compensation. Another system has created over the last 350 years of our existence. (Historically, disability payments for wounded militia seem to have started in the Massachusetts Bay Colony but our present system has directly grown out of laws passed just before our entry into World War I.)     

Levels of Disability Benefits 

The basic structure for Veterans disability benefits was created at the end of World War I and has remained essentially the same since that time.  The present monthly payments from $108 a month to $2,299 (from 10% to 100%) does not reflect the present cost of living. TREA believes that a thorough analysis of disability benefits

will result in increases in these basic levels of payments. Perhaps, even more importantly the payments should clearly be an attempt to compensate for the lost  “quality of life” as much as for future financial loses. Some people will say that money cannot make an injured person whole and, of course, that is so. However, we have centuries of Anglo-American Jurisprudence that grants money to recompense for such losses. It is the best society has the power to do and we should do it.  The loss of a limb has costs far beyond the earning capacity. We have always implicitly included such considerations in such a calculations of Veterans Disability pay ( as your contractor has also found in their analysis written in your Legislative History and Literature Review, December 2004) but we should forthrightly state that we are doing so.  The fact that we have more sedentary employment in the U.S. in 2005 than we did in 1948 really has little effect on the extent of  lose the veteran’s sacrificed has cost. 

A low disability rating may not effect the earning capacity of an individual (or one may be able to compensate for it) but it may greatly harm the veterans quality and enjoyment of life. On the other end of the spectrum a veteran who is blinded or becomes a quadriplegic may become a successful lawyer or writer but never be able to see his wife or hold his child. These are lifetime losses that a protected and grateful nation should compensate as well as possible. 

During the run up to America’s entry into World War I the modern structure of service connected disability law was created. Because of its early creation and unique military aspects it has always been a hybrid of tort compensation and civilian disability programs and insurance. Its’ economic loss definition has always been based on the “average veteran” and does not try to analysis the veterans past earning capacity. (as is done as a component of tort actions’ compensation). This has never changed in the over 200 statutory changes and improvements that have been made in the last 90 years. This is very wise indeed. An already bogged down system would grind to a halt. Additionally so many of the young men and women who enter the military have no work history behind them and thus such individual analysis would be impossible.  

We hope this Commission will look at the present correctness of the ratings. Should a lost of a leg under the knee only be a 40% disability?  (and a present payment of $466 a month) That seems arbitrarily low. Think of how such a loss will affect anyone’s future and happiness. The recent advances in prosthetics are wonderful but the non escapable limitations caused by such a loss are still great. This is merely one example. The young men and women coming home from Iraq and Afghanistan should be helped as much as we are able. TREA hopes you will consider suggesting a change from this type of rating.

Benefit Offsets 

TREA is a military retiree organization. Naturally we are concerned with DOD

retirement payments whether they are longevity retirement or medical retired pay. Both groups of retirees face VA disability offsets. To obtain their disability payments from the VA the veteran/retiree must waive their military retiree pay. Of course the law that created this Commission also created an end to this unfair system for those longevity military retirees who have service connected disabilities of 50% of more. But this offset (commonly called concurrent receipt) is just as unfair when applied to veterans/retirees who have 10%-40% service connected disabilities or who could not serve a full career in the military because they were injured while on active duty and could not complete their careers. So many of our all volunteer force will not be able to serve a full career in the military because of their service connected injuries. Due to the tax benefits they will naturally turn to the VA for disability payments and therefore sign away their retired pay. So once again the VA will grant disability payments and DOD will be freed of it separate obligation.  

Retired pay is an employee benefit to reflect prior service. It is deferred compensation. Disability pay is to try and make a veteran whole. It is created to be similar to tort compensation. Of course this is the argument the Veterans and Military organizations have been making for decades concerning concurrent receipt. We believe it is still a compelling argument. 

Unemployability- Service connected disability compensation has is granted in 2 separate but connected. The first is placing certain service connected disabilities in the VA’s schedule and then adding the percentages up. The second method entails the finding that the service connected disabilities make substantial gainful employment unlikely and thus must directly compensate for unemployability at 100% level. (The present definitions requires either one disability at least a 60% rating that is causing the unemployability or an added disability of at least 70% with one disability which is at least 40%) The newly created concurrent receipt phase in through 2013 included these disabled veterans at their 100% level but last year’s speed up for 100% are not yet included. Further complications of the system are both unwise and makes these men believe they are being treated unfairly. A recommendation from this Commission to include unemployables in last year’s improvement could solve this finite but emotional problem.        

Improvements in the Process 

Seamless Transition- For numerous reasons there has been a decades long push to try and create a seamless transition of electronic health records from DOD’S active duty records to VA’S veterans records and it has yet to happen. Now with the wartime situation the need of such improvements is even more urgent.

Of course, the primary of such a seamless transfer of records is improved health care but it would also be a profound improvement in the VA disability benefit programs. Health care records are obviously the main tool that Rating Officers use to determine thee existence and percentage of service connected disability. Uniform records could greatly increase the speed and consistency of decisions throughout the country. TREA hopes that this Commission will look at this problem as part of your mandate. Such an improvement would be a huge improvement for the entire VA Disability Compensation Program.     

Training- If this Commission could make recommendations that would provide the previously mentioned goal to improve the speed, consistency and accuracy of VA Disability Compensation decisions you would be a wonderful success. Clearly members of the VA staff would have insight into these problems that our organizations can not possess. However, even from the outside it is clear that a great step forward could be made if the VA provided uniform training for its Rating Officers throughout the system. At this time training is done by their supervisors. Naturally personnel quirks and opinions will creep into the teaching and decisions and thus decisions vary widely throughout the County. A standardized training program for all new Rating Officers would be a great help.  

Survivor Benefits 

SBP-DIC OFFSET-When looking at Survivor benefits we suggest that this Commission look at another grievous offset- that of SBP/DIC. This offset takes a dollar from a survivors’ Survivor Benefit Plan (SBP) payment for every dollar she receives from he Dependency Indemnification Compensation (DIC) payment. It is the Widow’s concurrent receipt and it is just as unfair. 

SBP is a DOD program that the longevity retiree pays 6 ½% of his or her retired pay to assure that if his or her spouse survives him she will receive 55% of their retired pay. (Until last year the survivor payment dropped to 35% when the survivor reached the age of 62 but happily a law was passed and signed last year that phases out this drop in the coming 3 years.) DIC is a VA program that since 1993 gives a flat tax free monthly payment of $993 to the survivor of a member of the Uniformed Services who either died on active duty or as the result of a service connected disability. (Before 1993 the payment was based on the service member’s rank.) 

Two groups of survivors are affected by this offset.  The first group is made up of survivors of military retirees who bought SBP for their spouses with their retired pay and they died of a service connected disability.  They may very well paid 6 ½% of their retired pay for years and years. There survivor will receive the premiums back if DIC totally wipes out the survivor payment. (but in a taxable one year lump sum) If some payment remains she will simply get the amount left after the DIC is subtracted from the SBP payment. The second group of widows is suppose to receive the newly created active duty SBP. However the vast number of recent war time widows will never receive anything from SBP because of this same offset. When active duty SBP was created Congress intended it to be a real benefit. TREA hopes that this Commission will recommend that changes be made to make this program a practical reality. 

Level of DIC Payments- On January 1, 1993 the basis of DIC payments changed from the rank of the lost service member to a flat sum (adjusted each year by a COLA). The present amount is a tax free $933.00 a month. This is simply too low. A person cannot live with any comfort with $12,000 a year. If the SBP/DIC offset is

ended some will be helped but many DIC recipients do not qualify for SBP and will still be left with only DIC. These widows (and some widowers) are in dire circumstances TREA hopes that you will consider improving their situation.     

DEATH GRATUITY and SGLI- Of course we have all watched with respect while Congress took on the problem of improving the survivor package in the first few months of this session of Congress. In this year’s NDAA Supplemental they included money to increase the Death Gratuity and the amount of insurance available under SGLI. The Death Gratuity is being increased from $12,420 to $100,000 (and will cover parents if the lost service member does not have a widow or children) SGLI is being raised from $250,000 to $400,000. But the improvements in the Supplemental only apply (it appears) for families whose service member died under the conditions presently defined under the Combat Related Special Compensation Program. All the Veteran and Military organizations agree that these improvements should apply to all families’ whose Service member died in the line of duty, not only when killed in combat. The definition of killed in combat is very narrow and counter intuitive. Combat related deaths and injuries are only those caused by enemy fire. Injuries or deaths in combat accidents (example armed convoys hitting one another) are not included. But surely injured or killed service members in theater are killed in such accidents because they are helping us fight this war. Military members are on duty 24/7. They do not determine where they live and where they serve.  Members who are killed or injured in training accidents, in plane crashes and a thousand other ways are risking their lives for our Country and their families should be taken care of as well. 

It is expected that Congress will take up permanent changes in both programs this year. However, if necessary, TREA hopes that this Commission will reinforce that for both reasons of fairness and esprit de corps both improvements should apply to all line of duty deaths.  

SURVIVORS’ EDUCATION BENEFITS- Both the widow or widower and the minor children are entitled to education benefits under Article 38 of the USC. While it is based on the present Montgomery GI Bill they are not statutorily connected. So during the last several years when Congress has tried to increase the MGIB’S payments to move closed to the actual present day costs of a College education the Survivors Education Program repeatedly falls behind. And then Congress must revisit the program and raise the program. A simple legislative fix would be to connect both programs so any changes in the grant amounts could be raised in tandem.  

Conclusion 

The Retired Enlisted Association is grateful to the Commission for immediately listening to the opinions of the VSOs, the MSOs and the public. You have been given a task that can improve the lives of numerous Veterans, their families and survivors who have dedicated and sacrificed their health and, at times, their lives for our country. We know what an enormous task you have taken on. TREA looks forward to working with all of you and your staffs to guarantee that these brave men and women have the support and help they need from the Nation they love so much.      

 Biography of Deirdre Parke Holleman, Esq.
National Legislative Director
The Retired Enlisted Association
And
Co-Chair of the
National Military and Veterans Alliance 

Deirdre Parke Holleman, Esq. is the National Legislative Director of The Retired Enlisted Association. She is also the Co-Director of the National Military and Veterans Alliance (NMVA) and the Co-Chairman of The Military Coalition’s (TMC) Survivors Committee.  In all three capacities and as a member of TMC’s Health Care Committee Mrs. Holleman focuses on healthcare, financial and benefit matters for the Military’s retirees, the active duty, the National Guard and Reserves and all their families and survivors. 

Prior to joining TREA Mrs. Holleman was the Washington Liaison for The Gold Star Wives of America, Inc. There she represented the concerns of active duty widows and widows of Military members who die of service connected disabilities Before Congress, the Department of Defense, the Department of Veteran Affairs and other Veteran Service Organizations. 

Mrs. Holleman is an attorney licensed to practice in the State of New York and before all Federal Courts. She argues many cases before all the Appellate Courts of New York including the New Your Court of Appeals, the highest appellate court in the state. She successfully argued In the Matter of Marie B., a case that struck down a New York statute as unconstitutional.  For years she was a civil trial attorney in New York primarily handling Domestic, Family and Juvenile cases. She was the Associate Director of The Legal Aid Society of Mid-New York, Inc. This charity represents people who cannot afford to hire counsel in civil matters over nine counties in Upstate New York. She has a B.A. in History and Journalism from George Washington University and a J.D. from Vanderbilt University School of Law.

She lives in Rosslyn Virginia with her husband Christopher Holleman, an Administrative Judge for the Small Business Administration.       

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