Text: S.Hrg. 115-399 — NOMINATIONS OF THE 115TH CONGRESS, PART 1
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[Senate Hearing 115-399]
[From the U.S. Government Publishing Office]
S. Hrg. 115-399
NOMINATIONS OF THE 115TH CONGRESS, PART 1
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
JULY 19 AND OCTOBER 4, 2017
__________
Printed for the use of the Committee on Veterans' Affairs
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COMMITTEE ON VETERANS' AFFAIRS
Johnny Isakson, Georgia, Chairman
Jerry Moran, Kansas Jon Tester, Montana, Ranking
John Boozman, Arkansas Member
Dean Heller, Nevada Patty Murray, Washington
Bill Cassidy, Louisiana Bernard Sanders, (I) Vermont
Mike Rounds, South Dakota Sherrod Brown, Ohio
Thom Tillis, North Carolina Richard Blumenthal, Connecticut
Dan Sullivan, Alaska Mazie K. Hirono, Hawaii
Joe Manchin III, West Virginia
Thomas G. Bowman, Staff Director \1\
Robert J. Henke, Staff Director \2\
Tony McClain, Democratic Staff Director
Majority Professional Staff
Amanda Meredith
Gretchan Blum
Leslie Campbell
Maureen O'Neill
Adam Reece
David Shearman
Jillian Workman
Minority Professional Staff
Dahlia Melendrez
Cassandra Byerly
Jon Coen
Steve Colley
Simon Coon
Michelle Dominguez
Eric Gardener
Carla Lott
Jorge Rueda
\1\ Thomas G. Bowman served as Committee majority Staff Director
through September 5, 2017, after being confirmed as Deputy Secretary of
Veterans Affairs on August 3, 2017.
\2\ Robert J. Henke became the Committee majority Staff Director on
September 6, 2017.
C O N T E N T S
----------
July 19, 2017
Nominations of Thomas G. Bowman to be Deputy Secretary, U.S. Department
of Veterans Affairs; Brooks D. Tucker to be Assistant Secretary,
Congressional and Legislative Affairs; James Byrne to be General
Counsel; Michael P. Allen, Amanda L. Meredith, and Joseph L. Toth to be
Judges of the U.S. Court of Appeals for Veterans Claims
SENATORS
Page
Isakson, Hon. Johnny, Chairman, U.S. Senator from Georgia........ 1
Tester, Hon. Jon, Ranking Member, U.S. Senator from Montana...... 2
Hirono, Hon. Mazie K., U.S. Senator from Hawaii.................. 74
Blumenthal, Hon. Richard, U.S. Senator from Connecticut.......... 254
WITNESSES
Bowman, Tom G., Nominee for Deputy Secretary, U.S. Department of
Veterans Affairs............................................... 4
Prepared statement........................................... 6
Questionnaire for Presidential nominees...................... 8
Letter from the Office of Government Ethics.................. 19
Letter from the nominee to the Office of General Counsel,
U.S. Department of Veterans Affairs........................ 20
Response to prehearing questions submitted by:
Hon. Johnny Isakson........................................ 21
Hon. Jon Tester............................................ 22
Tucker, Brooks D., Nominee for Assistant Secretary, Congressional
and Legislative Affairs, U.S. Department of Veterans Affairs... 27
Prepared statement........................................... 28
Questionnaire for Presidential nominees...................... 30
Letter from the Office of Government Ethics.................. 39
Letter from the nominee to the Office of General Counsel,
U.S. Department of Veterans Affairs........................ 40
Response to prehearing questions submitted by Hon. Jon Tester 42
Byrne, James, Nominee for General Counsel, U.S. Department of
Veterans Affairs............................................... 48
Prepared statement........................................... 49
Questionnaire for Presidential nominees...................... 51
Letter from the Office of Government Ethics.................. 62
Letter from the nominee to the Office of General Counsel,
U.S. Department of Veterans Affairs........................ 63
Response to prehearing questions submitted by:
Hon. Johnny Isakson........................................ 64
Hon. Jon Tester............................................ 65
Allen, Michael P., Nominee for Judge, U.S. Court of Appeals for
Veterans Claims................................................ 80
Prepared statement........................................... 81
Questionnaire for Presidential nominees...................... 83
Non-confidential Supplemental Questionnaire.................. 175
Letter from the Judicial Conference of the United States
Committee on Financial Disclosure.......................... 197
Response to prehearing questions submitted by:
Hon. Johnny Isakson........................................ 197
Hon. Jon Tester............................................ 201
Meredith, Amanda, Nominee for Judge, U.S. Court of Appeals for
Veterans Claims................................................ 206
Prepared statement........................................... 207
Questionnaire for Presidential nominees...................... 208
Non-confidential Supplemental Questionnaire.................. 216
Letter from the Judicial Conference of the United States
Committee on Financial Disclosure.......................... 225
Response to prehearing questions submitted by:
Hon. Johnny Isakson........................................ 225
Hon. Jon Tester............................................ 226
Toth, Joseph L., Nominee for Judge, U.S. Court of Appeals for
Veterans Claims................................................ 227
Prepared statement........................................... 228
Questionnaire for Presidential nominees...................... 230
Non-confidential Supplemental Questionnaire.................. 238
Letter from the Judicial Conference of the United States
Committee on Financial Disclosure.......................... 248
Response to prehearing questions submitted by:
Hon. Johnny Isakson........................................ 248
Hon. Jon Tester............................................ 249
APPENDIX
Tillis, Hon. Thom, U.S. Senator from North Carolina; prepared
statement...................................................... 257
Burr, Hon. Richard, U.S. Senator from North Carolina; prepared
statement...................................................... 258
Law professors, instructors, and clinicians for Michael P. Allen;
letter......................................................... 259
----------
October 4, 2017
Nominations to Office of Public and Intergovernmental Affairs, U.S.
Department of Veterans Affairs: Melissa Sue Glynn to be Assistant
Secretary for Enterprise Integration; Randy Reeves to be Under
Secretary for Memorial Affairs; and Cheryl Mason to be Chairman of the
Board of Veterans' Appeals
SENATORS
Isakson, Hon. Johnny, Chairman, U.S. Senator from Georgia........ 263
Tester, Hon. Jon, Ranking Member, U.S. Senator from Montana...... 332
Hirono, Hon. Mazie K., U.S. Senator from Hawaii.................. 332
Rounds, Hon. Mike, U.S. Senator from South Dakota................ 334
Brown, Hon. Sherrod, U.S. Senator from Ohio...................... 335
Cassidy, Hon. Bill, U.S. Senator from Louisiana.................. 337
Sullivan, Hon. Dan, U.S. Senator from Alaska..................... 338
WITNESSES
Glynn, Melissa Sue, Nominee to be Assistant Secretary for
Enterprise Integration, Office of Public and Intergovernmental
Affairs, U.S. Department of Veterans Affairs................... 264
Prepared statement........................................... 265
Questionnaire for Presidential nominees...................... 267
Letter from the Office of Government Ethics.................. 276
Letter from the nominee to the Office of General Counsel,
U.S. Department of Veterans Affairs........................ 277
Response to prehearing questions submitted by:
Hon. Johnny Isakson........................................ 278
Hon. Jon Tester............................................ 279
Response to posthearing questions submitted by Hon. Jon
Tester..................................................... 284
Reeves, Randy, Nominee to be Under Secretary for Memorial
Affairs, Office of Public and Intergovernmental Affairs, U.S.
Department of Veterans Affairs................................. 284
Prepared statement........................................... 286
Questionnaire for Presidential nominees...................... 287
Letter from the Office of Government Ethics.................. 298
Letter from the nominee to the Office of General Counsel,
U.S. Department of Veterans Affairs........................ 299
Response to prehearing questions submitted by:
Hon. Johnny Isakson........................................ 300
Hon. Jon Tester............................................ 301
Response to posthearing questions submitted by:
Hon. Jon Tester............................................ 304
Hon. Richard Blumenthal.................................... 304
Mason, Cheryl L., Nominee to be Chairman of the Board of
Veterans' Appeals, Office of Public and Intergovernmental
Affairs, U.S. Department of Veterans Affairs................... 306
Prepared statement........................................... 307
Questionnaire for Presidential nominees...................... 309
Letter from the Office of Government Ethics.................. 319
Letter from the nominee to the Office of General Counsel,
U.S. Department of Veterans Affairs........................ 320
Response to prehearing questions submitted by:
Hon. Johnny Isakson........................................ 321
Hon. Jon Tester............................................ 324
Response to posthearing questions submitted by:
Hon. Jon Tester............................................ 328
Hon. Richard Blumenthal.................................... 329
APPENDIX
Beavers, Leslie E., Brigadier General (USA Ret.), Executive
Director, The National Association of State Directors of
Veterans Affairs, Inc. (NASDVA); letter in support of Randy
Reeves......................................................... 345
HEARING ON PENDING NOMINATIONS
----------
WEDNESDAY, JULY 19, 2017
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 1:30 p.m. in room
418, Russell Senate Office Building, Hon. Johnny Isakson,
Chairman of the Committee, presiding.
Present: Senators Isakson, Tester, Brown, Blumenthal, and
Hirono.
OPENING STATEMENT OF HON. JOHNNY ISAKSON, CHAIRMAN,
U.S. SENATOR FROM GEORGIA
Chairman Isakson. Welcome to the Senate Committee on
Veterans' Affairs, for our afternoon hearing, which is a very
important hearing for the Committee but it is also very
important for our veterans and for the Veterans Administration
and for David Shulkin. We have six appointees that we are going
to hear from today that we will vote on later. They all have
completely important positions for the Veterans Administration,
for the benefit of our veterans and their claims, their
benefits, and the operation of the VA.
For everybody's benefit, particularly Members of the
Committee--none of them are here except the Ranking Member and
I, and the record should reflect that, by the way--but for the
staff representing those members that are here--that are not
here, we will have a vote. On the first vote tomorrow on the
floor we will have a vote to pass these out. It is very
important we get this done before we leave here in August. We
do not know exactly what the end of this session is going to be
like so I want to get it done tomorrow and get it done now so
we can get the deck clean so they can go to work. Every day
they are not working, our veterans are not being served and
that is not good for our country. It is not good for us.
The Ranking Member is aware of my plan, in support of the
plan. So, if you would cooperate in making sure your member is
on the floor looking for us to have an off-the-floor vote, I
would greatly appreciate it.
We are here today to hear from six nominees and appointees.
I am going to defer any comments I might make about them until
they individually testify. But our first panel is Tom G.
Bowman, of Florida, to be Deputy Secretary of Veterans Affairs;
Brooks D. Tucker, of Maryland, to be an Assistant Secretary of
Veterans Affairs, Congressional and Legislative Affairs; and
James Byrne, of Virginia, to be the General Counsel, Department
of Veterans Affairs. All three are very important jobs, so
important I am going to ask you to stand, raise your right
hand, and repeat after me.
Do you solemnly swear and affirm that the testimony you are
about to give before the Senate Committee on Veterans' Affairs
will be the truth, the whole truth, and nothing but the truth,
so help you God?
Mr. Bowman. I do.
Mr. Tucker. I do.
Mr. Byrne. I do.
Chairman Isakson. Thank you, and please be seated.
Senator Tester, do you have any opening remarks you would
like to make?
OPENING STATEMENT OF HON. JON TESTER, RANKING MEMBER, U.S.
SENATOR FROM MONTANA
Senator Tester. I would like to. Thank you, Mr. Chairman.
I want to thank both panels of nominees for their
willingness to serve today. I appreciate all of you accepting
the responsibility that comes with the duties for which you
have been nominated. It is my hope and the hope of this
Committee that you are all up to the task. Though I have
personally met with all of you, I think your answers to the
questions today will help many make their final determination.
Tom, I want to talk to you for just a moment. Given your
work in Congress, the expectation will be that you will help
give the Department much-needed perspective on congressional
and veterans' community reactions to changes in department
policies and legislative proposals. For example, the White
House recently put forth a legislative proposal on individual
unemployability (IU), that was met with a backlash from
veterans groups and Members of Congress. If you were Deputy
Secretary at that time the Administration was preparing this
budget request, and I would imagine that you would have been
able to avoid putting the VA in this awkward position.
Given the IU proposal is not going anywhere, VA is now
faced with a hole in our budget that we are going to have to
scramble to figure out how to plug. There needs to be some
common sense coming out of the Department and I am hoping that
you are the guy to provide that.
Mr. Byrne, as General Counsel you would ensure that the VA
is doing everything it needs to follow the law, while meetings
its mission. VA is in somewhat of a mess with the Staab
decision because the Department failed to appropriately
interpret that law. Now, there are veterans who have been
waiting for years to be reimbursed for emergency room care.
I would hope that you would lead the Department in sound
legal decisionmaking that allows the VA to continue providing
the benefits that veterans need, deserve, and have earned.
Mr. Tucker, I really do not like being surprised about
things that happen in my home State, or on VA issues generally.
I have got to tell you that I was not pleased at all how
information on the Choice fund shortfall came out. I expect
that, if confirmed, you will do what you can do to make sure
the Department does a better job of getting out in front of
this kind of stuff.
For judicial nominees, I want to emphasize how important it
is to me that veterans get expedient and fair reviews of their
cases. The Court of Appeals and Veterans Claims provides an
avenue for that, but it, along with the VA and the Board of
Veterans Appeals face challenges with issuing timely decisions.
So, the question of the day is whether you can build upon the
VA and the court's successes and continue delivering timely
justice for veterans and their families.
What I want to really learn from all of you nominees today
is, are you up for the job? We need to know that you folks are
the right folks for this job at this time, and I look forward
to our discussion today. I want to thank you again for your
willingness to serve on behalf of our nations veterans and
their families.
With that, Mr. Chairman, thank you for holding this very
important committee meeting. I look forward to the questions
and our witnesses' testimony.
Chairman Isakson. I want to associate myself with all the
remarks made by Senator Tester. He is a great Ranking Member.
We are good partners in this venture. We have discussed this
hearing and this markup a lot, and we are in sync, and I
associate myself with every comment that he made.
As I introduce the first panel, I will have a few editorial
comments to make about each of them, particularly Mr. Bowman,
which may take a little while, but we are going to do that
anyway.
Tom Bowman, please stand. U.S. Marine Corps. I am going to
tell you a story about how I met Tom Bowman. When I became
Chairman of the Committee, more or less 3 years ago, I got a
call from the former Ranking Member, a Republican, to give me a
little advice. He said, ``You have got a great staff up there,
but,'' he said, ``I want to tell you something. Tom Bowman is
the real deal. He is capable of being the Chief of Staff to the
Committee if you see fit for that to happen.''
Being one to be supremely confident on the outside, while
paddling like hell underneath, like a duck, I wanted to have
somebody who could get the job done for me. So, I talked to Tom
a lot, and in talking to him felt like he was probably the
right man at the right time. I can tell you this, in 3 years of
working with him I have never worked with a more competent or
supportive individual, in a very difficult operation, than Tom
Bowman.
One of reasons that we have done the things as a Committee,
we have done with the staff of the Ranking Member and myself.
Although I do not want to make it look like Tom's appointment
is a slam-dunk, and we do have some issues we will talk to him
about, the fact of the matter is it should be said publicly
that this Committee was languishing for a few years, without
having a strong leadership on the staff to make sure the
Ranking Member and the Chairman did the right thing. Tom has
done that for me and he has worked with Senator Tester as
Ranking Member, our support staff, and they have all done a
good job.
So, Tom, we are glad to have you here.
Second, I want to--you can sit down now because I am going
to give you a second to think about what you want to say.
Mr. Tucker, I am delighted that you are here today, for any
number of reasons, but, in particular, because the Ranking
Member and I want to make sure we are getting timely
information from the Secretary of Veterans Affairs and
Congressional liaison in terms of what is going on. We do not
want to ever get caught surprised or caught short, and one of
your jobs is going to be to make sure that we, as the elected
officials who are on this Committee, have the information in a
timely fashion, that may come to your attention or that you may
dig up that will help us. So, it is going to be very important
that we have good communication tools, and I know, from your
reputation and your record, that you have that.
Mr. Byrne and I talked about his big responsibility, and I
want to underscore it. As the General Counsel to the Veterans
Administration, you have, in my judgment, one big job ahead of
you, and that is making sure that the Accountability Bill is
implemented, and it is implemented fairly, it is executed
appropriately, and it works. The Ranking Member has got a lot
of political capital in that, and so do I, and our veterans
deserve the very best service from the Veterans Administration
as possible, as from the leadership of the Veterans
Administration.
The Accountability Bill was passed to give the VA rank and
file the leadership they need and those who govern them the
tools they need to elicit the support and leadership the
veterans expect, so the Veterans Administration is delivering
their job.
You probably have the most challenging and toughest job of
all, but I am confident, from having talked to you in my
office, that you are ready for it, that you will do a great job
with it, and we appreciate your willingness to consider doing
it. Do not forget, job one is making sure the Accountability
Bill we envisioned and passed works and works effectively for
our veterans and for the Secretary.
With that said, I will introduce Mr. Bowman first, for up
to 5 minutes, and then followed by each one of you. Tom?
STATEMENT OF THOMAS G. BOWMAN, NOMINATED TO BE DEPUTY
SECRETARY, U.S. DEPARTMENT OF VETERANS AFFAIRS
Mr. Bowman. Chairman Isakson, Ranking Member Tester, and
distinguished Members of the Committee on Veterans' Affairs, I
want to thank you for this opportunity and privilege to come
before you and seek your endorsement to serve as the Deputy
Secretary of the Department of Veterans Affairs. I have had the
privilege to meet individually with many of the Members of the
Committee before this hearing.
I am deeply honored to have been nominated by the President
to be the VA Deputy Secretary, and if confirmed, being able to
return to VA where I previously served for approximately 10
years at both VA Headquarters and at VA's health care
facilities in Florida. I am equally honored by the confidence
that Secretary Shulkin has expressed in support of my
nomination and abilities to make a meaningful difference in the
lives of veterans and their families as Deputy Secretary.
Additionally, I would be remiss if I did not note how
grateful I am that Senator Burr invited me to return to
Washington in 2014, to serve on his committee staff when he was
Ranking Member. My presence here today, in all probability,
would not have been possible without that confidence and
support at that time. However, most importantly, I am deeply
grateful that Chairman Isakson offered me the honor and the
privilege to continue to serve the Committee as Majority Staff
Director upon his appointment as Chairman in January 2015.
I have difficulty finding the right words that would
adequately express my heartfelt gratitude to my wife of 41
years, Joan Bowman, who I know is here in spirit, for her
tireless support over those many years. Joan passed away in
November 2013, after confronting the scourge of ovarian cancer
for almost 7 years. I was the caregiver for all of her daily
needs for the last 7 months of her life. That experience has
provided me clear and present understanding of the physical and
emotional sacrifice that caregivers for our veterans experience
daily, caring for their loved ones.
Joan and I have three wonderful children and seven
grandchildren, all of whom I am sure are watching these
proceedings right now.
I was raised in a career Navy family with four brothers,
two sisters. My father was at Pearl Harbor when it was attacked
in December 1941, and his bombing squadron later participated
in every major campaign of World War II in the Pacific. When he
retired from the Navy in 1968, he turned to the VA for help,
and they did. I retired from the Marine Corps in 1999, and the
VA has provided most of my health care needs. I continue to use
the VA health care system because I trust it.
If confirmed as Deputy Secretary, Secretary Shulkin has
indicated his expectation that I serve as the Chief Operating
Officer of the VA. In that role, I will be responsible for
executive oversight and management of the daily operations of
the department, both at the headquarters level and implemented
in VA fields operation. I believe my past service in the Marine
Corps and assignments at the Pentagon, witnessing and assisting
defense policy development, and prior VA appointments as the VA
Chief of Staff and other senior positions within the VA
Headquarters have provided me an excellent background and frame
of reference regarding the appropriate manner, means, and
methods of addressing departmental challenges.
Additionally, my years as the Senior Advisor to the
Director of VA Health Care in Florida provided me an
exceptional opportunity to experience, firsthand, how decisions
and policies developed at the VA Headquarters level are
implemented and executed in the field, and at times not as
intended, and others not at all.
Recently, and most importantly, I believe my service with
this Committee has provided me the opportunity to participate
in the inordinately important process of congressional
oversight and legislation affecting and intended to enhance
care for our veterans and their families. If confirmed, I will
ensure that the pursuit of my responsibilities as Deputy
Secretary will always be assisted by assessing actions and
decisions through the lens of my experience with this
Committee.
While there are significant challenges confronting the VA,
I believe one of the most pervasive is regaining the trust of
veterans, their families, and the American people. The Phoenix
VA medical center scandal in 2014, and since then other
scandals associated with an inability to appropriately hold VA
senior executives and staff accountable for unsatisfactory
performance or misconduct seriously undermined that trust and
confidence in the VA. Modernizing the VA, as discussed by
Secretary Shulkin in recent testimonies, and working with
Congress, VSOs, and other stakeholders will go a long way to
regaining that trust.
In closing, I believe the VA mission at its core is
embodied in President Lincoln's Second Inaugural Address, where
he states ``to care for him who shall have borne the battle and
for his widow and his orphan.'' Since then, what is meant by
that word that President Lincoln used, ``care,'' has been an
ongoing evolution as the American people and their government
try to continuously update and address the needs of veterans
and their families. It is clear the American people are
committed to maintaining and enhancing the VA. They trust that
the President, the Congress, and the Secretary of Veterans
Affairs will do so.
President Trump and Secretary Shulkin have indicated the
evolution of care for today's veterans and their families will
be through ensuring that VA continues its current
transformation.
I again want to thank the Committee for the opportunity to
appear before you, and I look forward to answering your
questions.
[The prepared statement of Mr. Bowman follows:]
Prepared Statement of Thomas G. Bowman, Nominee for Deputy Secretary,
U.S. Department of Veterans Affairs
Chairman Isakson, Ranking Member Tester, and Distinguished Members
of the Committee on Veterans Affairs, I want to thank you for this
opportunity and privilege to come before you and seek your endorsement
to serve as the Deputy Secretary of the Department of Veterans Affairs.
I have had the privilege to meet individually with many of you after I
was nominated by the President. I have also had the opportunity to work
with your staffs over the last two and a half years as the Majority
Staff Director for this very important Committee. I have benefited
immensely from your insights and commitment to the health care,
benefits and overall wellbeing of our Nation's veterans and their
families.
I am deeply honored to have been nominated by President Trump to be
the Deputy Secretary of the VA and, if confirmed, being able to return
to the VA where I previously served for approximately 10 years both
here in Washington, DC, at the VA Headquarters, and with VA's health
care facilities in Florida. I am equally honored for the confidence
Secretary Shulkin has expressed in support of my nomination and
abilities to make a meaningful difference in the lives of veterans and
their families as his Deputy Secretary. Additionally, I would be remiss
if I did not note how grateful I am that Senator Burr invited me to
return to Washington, DC, in 2014 to serve on his Committee staff when
he was Ranking Member. My presence here today, in all probability,
would not have been possible without his confidence and support at that
time. Most importantly, I am deeply grateful that Chairman Isakson
offered me the honor and privilege to continue to serve this Committee
as Majority Staff Director upon his appointment as Chairman in
January 2015.
I cannot find words to express my heartfelt gratitude to my wife of
41 years, Joan Bowman, who I know is here in spirit. Joan passed away
in November 2013 after confronting the scourge of ovarian cancer for
almost 7 years. I was the caregiver for all of her daily needs for the
last 7 months of her life. That experience has provided me a clear and
present understanding of the physical and emotional sacrifice that
caregivers for our veterans experience daily caring for their loved
ones. Joan and I have 3 wonderful children and seven grandchildren all
of whom I am sure are watching these proceedings now--daughter Heather
Bowman and grandchildren Kirah, Evey, Izak, Phoenix and Bodhi who live
in Brunswick, Maine; son and attorney Allen Bowman and his wife Allie,
and grandchildren Connor and Kiley who live in Paso Robles, CA; and son
Brian and his wife Ryan, both of them are Petty Officers in the Coast
Guard stationed in San Diego, CA.
I was raised in a Navy family with parents Leon and Ginny Bowman,
along with 4 brothers and 2 sisters. As a family we had tours of duty
overseas 3 times during my father's 31 year career. He retired as a
Chief in 1968. My father was at Pearl Harbor when it was attacked on
December 7, 1941, and his bombing squadron participated in every major
campaign of World War II in the Pacific. When he retired in 1968, he
turned to the VA for help, and they did. I retired from the Marine
Corps in 1999 and the VA has provided most of my health care needs. I
continue to use the VA healthcare system because I trust it. I share
this bit of background because it helped shape and has continuously
influenced the contours of my professional life in the military and
later pursuing public service to benefit our veterans and their
families.
If confirmed as Deputy Secretary, Secretary Shulkin has indicated
his expectation that I serve as the chief operating officer of the VA.
In that role I would be responsible for Executive oversight and
management of the daily operations of the Department, both at the
Headquarters level and as implemented in the VA's field operations. I
believe my past service in the Marine Corps and assignments at the
Pentagon witnessing and assisting policy development, and prior VA
appointments as VA Chief of Staff and other senior positions within the
VA Headquarters have provided me an excellent background and frame of
reference regarding the appropriate manner, means and methods of
addressing Departmental challenges associated with policy development,
program implementation, budgeting, personnel/HR oversight,
Congressional relationships and legislative needs of the VA.
Additionally, my years as the Senior Advisor to the Director of VA
Healthcare in Florida and the Caribbean provided me an exceptional
opportunity to experience, first hand, how decisions and policy
developed at the VA Headquarters level are implemented and executed in
the field, and at times, not as intended or not at all. Recently, and
probably most importantly, I believe my service with this Committee has
provided me the opportunity to participate in the inordinately
important process of Congressional oversight and legislation affecting,
and intended to enhance care and benefits for, our Veterans and their
families. If confirmed, I will ensure that the pursuit of my
responsibilities as Deputy Secretary will always be assisted by
assessing actions and decisions through the lenses of my experience
with this Committee.
While there are significant challenges confronting the VA, I
believe one of the most pervasive is regaining the trust of Veterans,
their families and the American people. The Phoenix VA Medical Center
Scandal in 2014 and since then, other scandals associated with an
inability to appropriately hold VA employees, senior executives and
staff alike, accountable for unsatisfactory performance or misconduct,
seriously undermined the trust and confidence in the VA of Veterans and
their families, Members of Congress, and the American people.
Modernizing the VA as discussed by Secretary Shulkin in recent
testimony, working with Congress, VSO's and other stake holders to
boldly and aggressively address needs highlighted by each of them, will
buildupon what President Trump, Secretary Shulkin and the Congress have
already started to hopefully regain that trust.
I believe the VA mission at its core is embodied in President
Lincoln's Second Inaugural Address in 1865 ``. . . to care for him who
shall have borne the battle and for his widow, and his orphan . . . .''
Since then, what is meant by ``care'' (both health care and other
benefits) has been an ongoing evolution as the American people and
their Government try to continuously update and address the needs of
veterans and their families which arise out of their service and
sacrifice in defense of our country. It is clear the American people
are committed to maintaining and enhancing the VA. They trust that the
President, the Congress, and the Secretary of Veterans Affairs will do
so by confronting and resolving the challenges collaboratively with the
Congress, Veteran Service Organizations, and the outstanding,
dedicated, committed and loyal employees of the VA who come to work
every day to serve Veterans and their families.
President Trump and Secretary Shulkin have clearly indicated that
the continuing evolution of ``care'' for today's veterans and their
families will be through ensuring that the VA continues its
transformation under Secretary Shulkin's leadership, and as outlined in
recent testimony, especially within his 2018 Budget testimony. If
confirmed, I will work daily to support that effort. The transformation
will ensure that the bedrock goals of providing the highest quality
healthcare; compensating and addressing service-connected disabilities;
providing supportive services and programs that facilitate transition
from military service and reintegration into the community; addressing
the unique needs of homeless veterans; preventing veteran suicide; and,
providing and maintaining a final resting place that honors and
respects their service to our Country are maintained.
I, again, want to thank the Committee for the opportunity to appear
before you. I look forward to answering your questions.
______
[The Committee questionnaire for Presidential nominees
follows:]
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[A letter from the Office of Government Ethics follows:]
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[Letter from the nominee to the Office of General Counsel,
U.S. Department of Veterans Affairs:]
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Response to Prehearing Questions Submitted by Hon. Johnny Isakson to
Thomas Bowman, Nominee to be Deputy Secretary, U.S. Department of
Veterans Affairs
Question 1. Have you discussed with Secretary Shulkin the duties he
would like you to perform, or the role he would like you to assume, as
Deputy Secretary if you are confirmed?
Response. Yes. Although the discussions have been very general in
nature, we discussed the strategic goals and objectives for the
Department as expressed by President Trump, as well as Secretary
Shulkin's goals for transforming the VA into a more responsive,
accountable and efficient Department for the delivery of healthcare and
benefits to Veterans and their families. Secretary Shulkin indicated
his expectation that, if confirmed, I serve as the chief operating
officer of the Department working under his direction. In that role I
would be responsible for Executive oversight and management of the
daily operations of the Department, both at the Headquarters level and
as implemented in the field operations of the Department.
Question 2. Your career has included serving in leadership roles at
the Department of Veterans Affairs (VA) and on the staff of the Senate
Committee on Veterans' Affairs, which conducts oversight of VA.
A. Based on your experiences, what do you see as the greatest
challenges facing VA today?
Response.
1. Regaining the Trust of Veterans (within and outside of the VA),
their families, and the American People--The Phoenix VA Medical Center
Scandal in 2014 and since then, other scandals associated with an
inability to appropriately hold VA employees, senior executives and
staff alike, accountable for unsatisfactory performance or misconduct
seriously undermined the trust and confidence in VA of Veterans and
their families, Members of Congress and the American people.
Modernizing the VA as discussed by the Secretary in his FY 2018 Budget
request; working with Congress, VSO's and other stake holders to boldly
and aggressively address needs highlighted by them, will buildupon what
President Trump, Secretary Shulkin and Congress have already started to
hopefully regain that trust.
2. Veterans Choice Program/Care in the Community--Access to timely
healthcare, whether within a VA medical center or within a community
care network, is an earned benefit of all Veterans enrolled in VA
healthcare. Both Secretary Shulkin and the Congress have indicated that
the VA Healthcare system will not be privatized. If confirmed, I will
work with the Secretary to find the appropriate pathway to a new
Veterans Choice Program and Care in the Community process that
addresses the healthcare needs of our Veterans.
3. Information Technology and VA Acquisition--Federal contracting
within VA has been an inordinately challenging process as VA attempts
to meet the demands and requirements across the Department, whether it
be Information Technology systems or medical equipment and supplies at
VA medical centers. The agility of a purchasing system within VA is
critical to meeting the transformative goals of the Secretary. VA needs
to introduce IT and acquisition systems and capabilities that are
streamlined and operate with agility and speed to address the
programmatic needs of the Department.
4. Vacancies in the Field Organizations--Veterans Health
Administration (VHA), Veterans Benefits Administration (VBA), National
Cemetery Administration (NCA). In any large organization there is
personnel turnover that requires recruiting for replacements. However,
in an organization like the VA where its mission is caring for our
Nation's Veterans and their families, that replacement process takes on
a sense of urgency. Responding to that urgency is a leadership
responsibility at all levels. If confirmed, and under the direction of
the Secretary, I believe it appropriate to review, streamline and
implement an aggressive initiative to fill existing vacancies.
5. Capital Asset Management and Infrastructure Improvement--Within
VA there exist hundreds of vacant and underutilized building and
structures on the campuses of almost all of the VA medical centers.
Simply maintaining them requires millions of dollars. If confirmed, and
under the direction of the Secretary, VA will initiate a process to
review and evaluate this inventory of capital asset underutilization
and develop recommendations for the highest and best use or disposition
of these structures for enhancing delivery of veteran care and
benefits.
B. If confirmed, what priorities would you hope to accomplish
during your tenure as Deputy Secretary?
Response.
1. Strategic Review and Recommendations for Reorganization and
Improvement Regarding Operations and Efficiencies of the Current
Department of Veterans Affairs Central Office (VACO) Organizational
Structure; Office of the Secretary, Under Secretaries, Assistant
Secretaries and Related Offices. Over the last 10 years the size of the
VA Central Office organizational structure and the number of employees
have been significantly increased. It may now be appropriate to assess
whether that increase has resulted in intended efficiencies, improved
services for Veterans and their families and facilitated needed
oversight of programs and field operations. If confirmed, and under the
direction of the Secretary, VA will seek to pursue answers to those
questions.
2. Enhance the Stature, Relevance and Timely Impact of the VA/DOD
Joint Executive Committee (JEC) Efforts Upon VA/DOD Strategic Planning
for Improved Business Practices, High Quality Cost-Effective Services
for VA and DOD Beneficiaries, and Improved Resource Utilization. In its
mission statement, the JEC describes its mission as: to work to remove
barriers and challenges that impede collaborative efforts, assert and
support mutually beneficial opportunities to improve business
practices, and ensure high quality cost-effective services for VA and
DOD beneficiaries. As the Secretary pursues the transformation of the
VA, greater collaboration between VA and DOD should be inextricably
intertwined wherever possible to leverage capabilities and assets of
both. If confirmed, and under the direction of the Secretary, as the
Co-chair of the JEC, VA will pursue a greater and more active use of
the JEC to serve the needs of VA and DOD.
C. Based on your experiences, do you believe any changes are needed
to better facilitate open communication between Congress and VA?
Response. Yes. I believe the most serious shortcoming in the
existing VA scheme of communications with the Congress is that written,
and in some cases telephone, responses to Congressional Inquiries have
been untimely and not substantively responsive in whole or part for
what was requested. When that occurs it significantly impedes and
burdens effective Congressional oversight of VA. Equally important is
that it erodes the confidence of Members of Congress and their staff,
that their requests are perceived as important to VA. Although a number
of Congressional offices and Committee staff have noted improvement in
the last 9-12 months, much more improvement is needed and must be
provided by reviewing and reforming current VA practices and
procedures. If confirmed, improving the manner, means, methods and
timeliness of open communication between Congress and the VA will be a
high priority of mine.
______
Response to Prehearing Questions Submitted by Hon. Jon Tester to Thomas
Bowman, Nominee to be Deputy Secretary, U.S. Department of Veterans
Affairs
Question 1. Have you discussed with Secretary Shulkin the duties he
would like you to perform, or the role he would like you to assume, as
Deputy Secretary if you are confirmed?
Response. Yes. Although the discussions have been very general in
nature, we discussed the strategic goals and objectives for the
Department as expressed by President Trump, as well as Secretary
Shulkin's goals for transforming the VA into a more responsive,
accountable and efficient Department for the delivery of healthcare and
benefits to Veterans and their families. Secretary Shulkin indicated
his expectation that, if confirmed, I serve as the chief operating
officer of the Department working under his direction. In that role I
would be responsible for Executive oversight and management of the
daily operations of the Department, both at the Headquarters level and
as implemented in the field operations of the Department.
Question 2. Will you have a policymaking role at VA independent
from the Secretary?
Response. I do not believe that such an independent role will be
part of my portfolio of responsibility as the Deputy Secretary, if
confirmed. However, if the Secretary requests that I engage in a policy
issue, I will do so. It is my understanding and belief the Secretary
sets policy for the Department after both internal and external
consultation. The Deputy Secretary ensures that a policy once decided,
is understood by subordinate VA leadership, communicated both within
and outside of the Department, and is implemented and executed as
quickly and efficiently as possible.
Question 3. Will you be VA's Chief Operating Officer? If so, please
describe in detail what you understand the position of COO to be, both
generally and with specificity as to VA.
Response. Secretary Shulkin indicated his expectation that, if
confirmed, I serve as the chief operating officer of the Department
working under his direction. In that role, I would be responsible for
Executive oversight and management of the daily operations of the
Department, both at the Headquarters level and as implemented in the
field operations of the Department. More detailed aspects of the COO
portfolio of responsibility will need to await further discussions with
the Secretary if confirmed.
Question 4. Apart from what you and the Secretary have discussed
with respect to your duties, have you formulated any thoughts on what
your specific responsibilities will be as Deputy and how you will
approach them?
Response. My discussions with the Secretary have been general in
nature and focused on the goals and objectives for the Department
announced by President Trump and Secretary Shulkin. If confirmed, I
will have a more detailed discussion with the Secretary to obtain his
thoughts, impressions and opinions regarding what specific aspects of
duty he believes should be within my portfolio of responsibilities as
Deputy Secretary. Once that discussion occurs, I will determine how
best to approach those duties and responsibilities.
Question 5. Please describe what you believe the mission of VA
should be.
Response. I believe the VA mission at its core is embodied in
President Lincoln's Second Inaugural Address in 1865 ``. . .To care for
him who shall have borne the battle and for his widow, and his orphan.
. . .'' What is meant by ``care'' has been an ongoing evolution up to
the present time as the American people and their Government try to
continuously update and address the needs of Veterans and their
families which arise out of their service and sacrifice in defense of
our country. Providing the highest quality healthcare; compensating and
addressing service-connected disabilities; providing supportive service
and programs that facilitate transition from military service and
reintegration into the community; and, providing and maintaining a
final resting place that honors and respects their service to our
Country.
Question 6. What do you see as the biggest challenges facing VA at
this time--as to the Department as a whole, and specifically in VBA,
VHA, NCA, and OIT?
Response. As to the Department as a Whole: Regaining the Trust of
Veterans (within and outside of the VA), their families, and the
American People--The Phoenix VA Medical Center Scandal in 2014 and
since then, other scandals associated with an inability to
appropriately hold VA employees, senior executives and staff alike,
accountable for unsatisfactory performance or misconduct seriously
undermined the trust and confidence in VA of Veterans and their
families, Members of Congress and the American people. Modernizing the
VA as discussed by the Secretary in his FY 2018 Budget request; working
with Congress, VSO's and other stake holders to boldly and aggressively
address needs highlighted by them, will buildupon what President Trump,
Secretary Shulkin and Congress have already started to hopefully regain
that trust.
Each of the below challenges have cross VA impact on VHA, VBA, NCA,
OIT:
Vacancies in the Field Organizations--Veterans Health
Administration (VHA), Veterans Benefits Administration (VBA), National
Cemetery Administration (NCA). In any large organization, there is
personnel turnover that requires recruiting for replacements. However,
in an organization like the VA where its mission is caring for our
Nation's Veterans and their families, that replacement process takes
upon a sense of urgency. Responding to that urgency is a leadership
responsibility at all levels. If confirmed, and under the direction of
the Secretary, I believe it appropriate to review, streamline and
implement an aggressive initiative fill existing vacancies.
Capital Asset Management and Infrastructure Improvement--Within VA
there exist hundreds of vacant and underutilized buildings and
structures on the campus of almost all of the VA medical centers.
Simply maintaining them requires millions of dollars. If confirmed, and
under the direction of the Secretary, VA will initiate a process to
review and evaluate this inventory of capital asset underutilization
and develop recommendations for the highest and best use or disposition
of these structures for enhancing delivery of Veteran care and
benefits.
Veterans Choice Program/Care in the Community--Access to timely
healthcare, whether within a VA medical center or within a community
care network, is an earned benefit of all Veterans enrolled in VA
healthcare. If confirmed, I will work with the Secretary to find the
appropriate pathway to a new Veterans Choice Program and Care in the
Community process that addresses the healthcare needs of our Veterans.
Information Technology and VA Acquisition--Federal contracting
within VA has been an inordinately challenging process as VA attempts
to meet the demands and requirements across the Department, whether it
be Information Technology systems or medical equipment and supplies at
VA medical centers. The agility of a purchasing system within VA is
critical to meeting the transformative goals of the Secretary. VA needs
to introduce IT and acquisition systems and capabilities that are
streamlined and operate with agility and speed to address the
programmatic needs of the Department.
Question 7. What will be your top three priorities after assuming
the role of Deputy Secretary?
Response. If confirmed, my top three priorities with the
Secretary's approval, and among others that will be identified by the
Secretary are 1) Veterans Choice Program/Care in the Community; 2)
Information Technology and VA Acquisition; and 3) Vacancies in VA Field
Organizations. Each are discussed above under Question 6.
Question 8. What specific experiences from your prior professional
positions do you believe have prepared you to manage VA? Please also
particularly address how you can help implement the Secretary's
decision to procure and deploy Cerner Corporation's electronic health
record.
Response. If confirmed, I believe my past appointment as VA Chief
of Staff and other senior positions within the VA Headquarters have
provided me an excellent background and frame of reference regarding
the appropriate manner, means and methods of addressing departmental
challenges associated with policy development, program implementation,
budget, personnel/HR oversight, congressional relationships and
legislative needs of VA. Additionally, my subsequent years as the
Senior Advisor to the Director of VISN 8 in Florida provided me an
exceptional opportunity to experience how decisions and policy
developed at the VA Headquarters level is implemented and executed in
the field.
While I support the decision of the Secretary to procure the same
Cerner Corporation`s electronic health record platform as DOD, my depth
of understanding of the intended VA process and way forward at the
present time regarding implementing the decision to achieve an
effective, efficient, and integrated health system is minimal. However,
if confirmed, involving myself in this inordinately important
initiative will be a significant priority for me.
Question 9. What were the major decisions you made as Senior
Advisor or Chief of Staff that did not turn out to have the impact you
anticipated, and what problems did you try to address that are still
challenges today? How do you anticipate handling them differently if
confirmed?
Response. As the Senior Advisor or Chief of Staff I do not recall
making any major decisions regarding policy for the Department. My
recollection is that my responsibilities were to develop manner and
means to facilitate or oversee implementation of those policy decisions
once made.
Question 10. What do you believe the major differences will be in
your former position as Chief of Staff of VA and the position for which
you have been nominated?
Response. In my former role as Chief of Staff, I was responsible to
ensure that the daily schedule of the Secretary, and to some degree the
Deputy Secretary, was managed, coordinated and prioritized to
facilitate participation in required or desired meetings or activity,
and able to make decisions if required or appropriate. Time management
was an ongoing responsibility. Additionally, I reviewed all
administrative matters that were to come to his attention to ensure
that they substantively addressed questions or issues to be considered.
If confirmed as the Deputy Secretary, I would be responsible for
leadership oversight and management of the daily operations of the
Department, and implementation of policy decided by the Secretary, and
now supported in my new position by the current Chief of Staff.
Question 11. If confirmed, what efforts will you undertake to make
certain that VA is aware of, and responsive to, the needs of the
Veterans' community? Do you plan to meet regularly with Veterans'
organizations?
Response. It should be noted that I receive health care at the VA.
If confirmed, it would be my intention to meet regularly with the
Washington, DC executive leadership of the national VSO organizations.
Additionally, when traveling as part of my responsibilities I would
make it an integral part of my schedule to meet with local Veterans and
VSO organizations and at the various VA facilities visited. At each
event or opportunity, I would seek their input on behalf of their
Veterans regarding issues, problems, and recommendations for
improvement of the VA's delivery of healthcare and benefits.
Additionally, I would try to arrange for separate opportunities to meet
with Veteran family members and seek their candid opinions and
recommendations as to how to better serve their loved ones.
Question 12. How would you, as Deputy Secretary, work with the
Office of Inspector General? The Office of the General Counsel?
Response. In my prior role as Chief of Staff, I met frequently with
the General Counsel or his staff, at their request or mine, to discuss
policy, programs, initiatives, legislation, personnel actions and other
matters deemed appropriate. When in doubt, I sought the review and
advice of the General Counsel. If confirmed, I would continue that
approach with the General Counsel and his staff. If confirmed, I would
seek to meet periodically with the Inspector General to allow for a
dialog where he may discuss, if appropriate, program or operational
concerns regarding criminal wrongdoing, fraud, waste or abuse within
the Department.
Question 13. Are you more of a hands-on manager or do you tend to
rely on significant delegation? Do you seek to achieve consensus with
those on your management team before making a decision or do you
generally gather relevant information and input, and then make a
decision?
Response. As a general rule I am inclined to delegate to staff who
have demonstrated subject matter competence and reliability. When
considering an issue, it is always beneficial to seek input from staff
and relevant stakeholders, if appropriate. If that results in a
consensus on the way forward regarding an issue, that enhances the
team. However, I do not see consensus as a necessary determinant for an
executive decision.
Question 14. Do you anticipate having a role in selecting other
political appointees to VA? What are your views on the key
qualifications for such individuals?
Response. If invited by the Secretary, I would welcome the
opportunity to be part of the selection process for other VA political
appointees, if confirmed. I believe a candidate for a particular office
should have demonstrated leadership experience; clear competence in the
portfolio for which they will be responsible; and, an abiding desire to
support and serve Veterans and their families.
Question 15. Do you agree to supply the Committee with such non-
privileged information, materials, and documents as may be requested by
the Committee in its oversight and legislative capacities for so long
as you serve in the position of Deputy Secretary?
Response. If confirmed, I commit to providing such information.
Question 16. As Deputy, you would be held accountable for ensuring
the Department hires, retains and engages a talented workforce. The
Department, however, is struggling to recruit and engage its people.
According to the U.S. Office of Personnel Management's 2016 Federal
Employment Viewpoint Survey, less than fifty percent of VA employees
agree that their work unit can recruit people with the right skills and
only about fifty-two percent of employees believe that the skill level
in their unit has improved over the past year. In addition, according
to the 2016 Best Places to Work in the Federal Government ranking by
the Partnership for Public Service--a comprehensive and authoritative
rating of employee engagement in the Federal Government--VA was ranked
17th out of 18 large agencies in three categories related to effective
leadership, while ranking 16th out of 18 on the training and
development category. If confirmed, what would you do to improve hiring
and engagement at the Department?
Response. In any large organization there is personnel turnover
that requires recruiting for replacements. However, in an organization
like the VA where its mission is caring for our Nation's Veterans and
their families, that replacement process takes on a sense of urgency.
Responding to that urgency is a leadership responsibility at all
levels. If confirmed, and under the direction of the Secretary, I
believe it appropriate to review, streamline and implement an
aggressive initiative to fill existing vacancies. Lengthy
administrative processes and delayed decisions by hiring officials
significantly erode morale at all levels within the VA, but most
significantly at the ``frontline'' positions in the field organizations
where care and benefits are actually delivered to the Veteran. When
that occurs, Veterans ultimately suffer. Addressing unfilled positions
within VA needs to take upon a sense of urgency.
Question 17. VA has always struggled to tell its success stories.
What would you do to help the Agency tout its accomplishments?
Response. I believe that VA's communications strategy and efforts
have been commendable and increasingly effective under Secretary
Shulkin's leadership. I believe this to be the case in large part
because he has made himself frequently and personally available to
effectively communicate the successes and accomplishments at the VA.
That personal presence in the public eye as an advocate and messenger
for the VA instills confidence in Veterans and their families as well
as the American public at large. I believe a similar approach by
directors and senior leaders in the field at the VISN, VA medical
centers and Regional Office levels would go a long way to inform
Veterans, their families and the American public of VA's successes and
accomplishments. While media training may be appropriate on behalf of
some senior leaders, it would be an inordinately important investment
of time and resources.
Question 18. As Co-Chair of the Joint Executive Council, what would
be your priorities?
Response. The JEC's mission statement is to work to remove barriers
and challenges that impede collaborative efforts, assert and support
mutually beneficial opportunities to improve business practices, and
ensure high quality cost-effective services for VA and DOD
beneficiaries. As the Secretary pursues the transformation of the VA,
greater collaboration between VA and DOD should be inextricably
intertwined wherever possible to leverage capabilities and assets of
both. If confirmed, and under the direction of the Secretary, as the
Co-chair of the JEC, VA will pursue a greater and more active use of
the JEC to serve the needs of VA and DOD. However, until I am able to
engage with the Secretary on his range of priorities, it would be
premature on my part to list any priorities except for the VA/DOD
collaboration on electronic health records, which is ongoing.
Question 19. In your 2012 Opinion piece for the Washington Post,
you, along with former Secretary Nicholson, advocated granting interim
decision on disability claims and leave open the door for auditing
those claims later. Do you support this approach to claims processing
today? If yes, would you advocate the Department adopt this proposal?
Response. The article was written nearly five years ago and was
framed against the statistics and status of VA's efforts to address the
claims backlog at that point in time. If confirmed, I would seek a
detailed briefing from appropriate VBA claims subject matter experts to
update my understanding. Until that would occur, I believe it would be
premature to offer a current opinion.
Question 20. Given your work in Congress, the expectation will be
that you will give the Department much-needed perspective on
Congressional and Veterans' community reaction to changes in Department
policies and legislative proposals. For example, the Administration
recently put forth a legislative proposal on Individual Un-
employability that was met with backlash from Veterans groups and
Members of Congress. If you were Deputy Secretary at the time the
Administration was preparing its budget request, and specifically
legislative proposals, would you have advised the Administration
differently?
Response. I was not present or involved in any facet of the
development of the Administration's budget request and thus do not know
what was discussed around using the IU proposal.
Question 21. What would you do to ensure that Members of Congress
are advised in advance of problems, issues and emerging matters--
particularly when those matters are specific to the area a member
represents?
Response. As a matter of good policy, Members of Congress should be
made appropriately aware of any significant problems, issues and
emerging matters, particularly when those matters are specific to the
area the Member represents as soon as possible after VA becomes aware
of an issue or event of note. Many times an initial ``heads up'' to the
Member with follow up information afterward goes a long way to develop
trust and respect for VA officials by Members and their staff. In my
current role as Staff Director of the Senate Veterans' Affairs
Committee I am keenly aware of the impact on Members when timely or
reasonable notification does not occur. At the same time, I believe it
also reasonable for the VA be allowed to collect facts and an
understanding of events under the circumstances before reaching out to
Members, if time permits. Additionally, if the Department is going to
announce a policy, award, or other ``good news'' story or event, it is
inordinately important and appropriate, if at all possible, to provide
timely notice to the Member in advance of VA releasing the ``news'' to
the public in a release or other social media venue. If confirmed, and
under the direction of the Secretary, VA should review its current
practices and procedures to determine a more timely manner of response
for Members as discussed above.
Question 22. Given your understanding of how working in a
bipartisan manner helps the legislative process and improves Congress'
ability to provide meaningful oversight over the Department, will you
commit to responding to Democratic requests for information in a timely
manner?
Response. Yes. I commit to responding to Democratic requests for
information in a timely manner.
Chairman Isakson. Mr. Tucker.
STATEMENT OF BROOKS D. TUCKER, NOMINATED TO BE AN ASSISTANT
SECRETARY, CONGRESSIONAL AND LEGISLATIVE AFFAIRS, U.S.
DEPARTMENT OF VETERANS AFFAIRS
Mr. Tucker. Chairman Isakson, Ranking Member Tester,
distinguished Members of the Committee on Veterans' Affairs,
thank you for the opportunity to testify before you today and
for your consideration of my nomination to be the Assistant
Secretary of Congressional and Legislative Affairs for the
Department of Veterans Affairs. I am humbled by President
Trump's nomination and by the confidence he and Secretary
Shulkin have shown in me.
I would like to recognize my family members who are here
today: my wife, Anita, who has been by my side for over 20
years; my son, Forrest, who will soon be a freshman at the
University of South Carolina; and my daughter, Kate, who is a
rising high school sophomore. Their love and support have been
invaluable to me.
Second row. Thank you.
Chairman Isakson. Would you all please stand for a minute.
Do not be shy.
Mr. Tucker. I was privileged to serve in the U.S. Marine
Corps for 20 years of active and reserve time. From my early
days at Officer Candidate School through the Infantry Officer
Course, and on various training and combat deployments
overseas, the dual role of a Marine leader was ever-present in
my mind: accomplish the mission and take care of your Marines.
I came to the Senate for the first time as a Marine Corps
Congressional Fellow in 2009, and I learned firsthand that
leadership traits and principles I lived by as a Marine officer
were applicable to solve complex problems on behalf of
constituents, especially veterans. I enjoyed the work here
immensely and eventually decided to return, first as a Deputy
Staff Director of the Republican staff on this Committee, and
later as Senator Burr's Senior Policy Advisor for National
Security and Veterans Affairs.
Those six and a half years in the Senate convinced me, the
only way you get really big things done here is to build
relationships with sincere and like-minded people in both
political parties who are committed to accomplishing the
mission together. Some of my most rewarding and memorable
accomplishments here were negotiating significant bipartisan
compromises and solutions for the VA and for veterans. If
confirmed, I will bring that same sense of duty, diligence, and
bipartisan service in representing the VA before this Congress.
One key observation I had as a Senate staffer was that the
VA sometimes lacks a unified voice on Capitol Hill. Secretary
Shulkin has recognized the growing need for cohesive and
coordinated communication with Congress and a more responsive
level of engagement with members and their staffs. To address
that need, he directed the Office of Congressional Legislative
Affairs to consolidate, effective July 1, what were previously
separate but related functions and staffs, in the Veterans
Health Administration and Veterans Benefit Administration, and
to fully assimilate them into a unified staff by October 1. If
I am confirmed, I pledge that this integrated and proactive
staff structure will ultimately better serve the Congress and
allow the VA to respond to your inquiries with more efficiency
and in a timely manner.
The months ahead will provide a number of opportunities for
the VA and this Committee to work together, along with other
committees and members, to debate and advance the
administration's legislative priorities. My objective, if
confirmed, will be to ensure that we have open lines of
communication. I am firmly committed to ensuring the
administration's priorities for the VA are communicated to this
Committee and to other committees with oversight
responsibilities, as well as to any member of the House or the
Senate who requests information or support from the Department.
I want to build on the constructive and positive relationship
the Department has been promoting with Congress to meet the
needs of our Nation's veterans.
Thank you for the opportunity to testify before you today,
and I look forward to your questions.
[The prepared statement of Mr. Tucker follows:]
Prepared Statement of Brooks D. Tucker, Nominee to be Assistant
Secretary, Congressional and Legislative Affairs, U.S. Department of
Veterans Affairs
Chairman Isakson, Ranking Member Tester, Distinguished Members of
the Committee on Veterans' Affairs, Thank you for the opportunity to
testify before you today and for your consideration of my nomination to
serve as the Department of Veterans Affairs Assistant Secretary for
Congressional and Legislative Affairs. I am humbled by President
Trump's nomination and the confidence that he and Secretary Shulkin
have shown in me.
I would like to recognize my family members who are here with me
today. My wife Anita, who has been by my side for over twenty years; my
son Forrest, who will soon be a freshman at the University of South
Carolina; and my daughter Kate, who is a rising high school sophomore.
Their love and support have been invaluable to me.
I was privileged to serve in the United States Marine Corps for
twenty years of active and reserve time. From my early days at Officer
Candidate School through the Infantry Officer Course, and on various
training and combat deployments overseas, the dual role of a Marine
leader was always present in my mind: Accomplish the Mission and Take
Care of Your Marines. I came to the Senate for the first time as a
Marine Corps Congressional Fellow in 2009 and learned first-hand that
the leadership traits and principles I lived by as a Marine Officer,
were applicable to solve complex problems on behalf of constituents,
especially veterans. I enjoyed the work here and eventually decided to
return; first as the Deputy Staff Director on the Republican Staff for
this Committee, and later as Senator Burr's Senior Policy Adviser for
National Security and Veterans Affairs. Those six and a half years as a
Senate staffer convinced me the only way you get the really big things
done is to build relationships with sincere and like-minded people in
both political parties who are committed to accomplishing the mission
together. Some of my most rewarding accomplishments of those six years
were negotiating significant bi-partisan compromises and solutions for
the VA and for veterans. If confirmed, I will bring that same sense of
duty, diligence and bi-partisan service in representing the VA before
the Congress.
I am firmly committed to ensuring the Administration's priorities
for the VA are communicated to this Committee and to the other
committees with oversight responsibilities, as well as to any Member of
the House or the Senate who requests information or support from the
Department. One key observation I had as a Senate staffer was that the
VA sometimes lacked a unified voice on Capitol Hill. Secretary Shulkin
has recognized the growing need for cohesive and coordinated
communication with Congress and a more responsive level of engagement
with Members and their staffs. To address that need, he directed the
Office of Congressional and Legislative Affairs to consolidate,
effective on July 1, what were previously separate, but related
functions and staffs, in Veterans Health Administration and Veterans
Benefit Administration and to fully assimilate them into a unified
staff by October 1. If I am confirmed, I pledge that this integrated
and proactive staff structure will ultimately better serve the Congress
and allow the VA to respond to your inquiries with more efficiency and
in a timely manner.
The months ahead will provide a number of opportunities for the VA
and this Committee to work together, along with other Committees and
Members, to debate and advance the Administration's legislative
priorities. My objective, if confirmed, will be to ensure that we have
open lines of communication. I want to build on the constructive and
positive relationship the Department has been promoting with Congress
to meet the needs of our Nation's veterans. Thank you for the
opportunity to testify before you today and I look forward to your
questions.
______
[The Committee questionnaire for Presidential nominees
follows:]
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[A letter from the Office of Government Ethics follows:]
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[Letter from the nominee to the Office of General Counsel,
U.S. Department of Veterans Affairs:]
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Response to Prehearing Questions Submitted by Hon. Jon Tester to Brooks
Tucker, Nominee to be Assistant Secretary for Congressional and
Legislative Affairs, U.S. Department of Veterans Affairs
Question 1. Why are you seeking the position of Assistant Secretary
of Congressional and Legislative Affairs?
Response. I have been firmly committed to improving the lives of
Veterans and their families for over twenty years, in private life
through volunteerism and in public service. This position will give me
an opportunity to bring that experience to bear at a strategic level
during a critical period for the Department of Veterans Affairs.
Question 2. Have you and Secretary Shulkin discussed the duties and
the role you would assume as Assistant Secretary for Congressional and
Legislative Affairs if you are confirmed? If so, what specific areas of
the job were discussed? How would approach those responsibilities if
confirmed?
Response. The Secretary has discussed what he expects of me if I am
confirmed. His focus is on improving the internal departmental
coordination for Congressional concerns and being more proactive with
Congress. If confirmed, I intend to reduce and eliminate administrative
processes that hinder prompt and informed exchanges with Congress and
increase day to day staff level outreach and communications with
Congress.
Question 3. Do you anticipate having a policymaking role if you are
confirmed? If yes, what would your role in creating policy include?
Response. If confirmed, my role would be to advise the Secretary on
the ramifications and implications of policy decisions as they pertain
to Congress. The Assistant Secretary is a critical member of the
Secretary's policy team--managing the policy agenda of the legislative
branch and more important, helping the Secretary develop policy to
carry out the President's agenda and execute the policy through
legislation.
Question 4. What was your impression of OCLA while you were
employed in the Senate? How has that informed how you would manage
OCLA?
Response. During my time as a Congressional Staffer, OCLA's
reputation was somewhat inconsistent and its responsiveness often in
question. OCLA had problems delivering a consistent and complete
message on a given issue and oftentimes had to correct prior
information provided to Congress, which harmed OCLA's credibility and
that of VA. More must be done with VA senior leadership to emphasize
OCLA's unique role and authority within VACO in order to develop
greater effort to support OCLA's mission and ultimately support
Congress.
Question 5. Please describe what you believe the mission of VA
should be.
Response. VA's mission is to care for Veterans and their families.
This is a national security imperative.
Question 6. As a veteran, how do your personal experiences of using
VA services impact your thoughts on how to perform the duties of this
position?
Response. I am a combat veteran and have been very fortunate to
have served in a number of foreign operations without incurring an
injury requiring VA health care or disability benefits. However, I know
many fellow veterans, relatives and friends, who are not as fortunate
and their stories and the stories of their families inspire me to work
for better care and outcomes for veterans who use or rely upon the VA.
If I am confirmed, I will strive to do so.
Question 7. It is my understanding that you have been working at
the Agency for the past several months. What has been your impression
of the Department? What have been your duties while employed with the
Agency? Please describe any particular issues that you have worked on
while employed by VA.
Response. I have a mixed impression of the Department. If I am
confirmed, and based on my experience as a Veteran and a senior
Congressional staffer, I intend to suggest any changes that are needed
to improve the Department's capabilities and that will enhance its
reputation, with both the Congress and the public.
Question 8. What do you see as the biggest challenges facing VA at
this time? What steps would you take to immediately begin addressing
these issues if confirmed?
Response. Leadership and accountability are the foremost
challenges, along with cultural change, improved performance and
ultimately higher credibility; all are closely related. The VA is a
large and complex organization and often under intense public scrutiny.
No organization can succeed in that difficult and unpredictable
environment without high quality leaders spurring change at all levels
and clear accountability for results. If VA can demonstrate, with
targeted help from legislative authorities and appropriations, that it
can execute its mission well, while recruiting and retaining capable
leaders, then performance and credibility will improve over time.
Question 9. How would you describe your management style and how is
it suited to this particular position?
Response. I learned as a Marine Officer that an effective leader
needs to accomplish the mission and take care of his people, be
decisive, and build a bright and capable team that will be brutally
candid and execute smoothly. A smart leader will delegate
responsibility to conduct tasks, but never delegate overall authority
as the senior person. My leadership style is generally collaborative,
which is essential in a position such as this, where working with
Members of Congress and for the Secretary and his Under Secretaries is
vitally important.
Question 10. What in your experience do you believe contributes to
your qualifications for this position?
Response. I know firsthand that military service can cause
hardships, physical and emotional, and that service in peacetime and
wartime can have lasting positive and negative effects on people who
served. I also know from experience that Congress has a valuable and
indispensable role in conducting oversight and VA must support that
effort with accurate and timely information, and be accountable for
results.
Question 11. What skills would you bring to this position that
would help you contribute to meeting the needs of veterans?
Response. The credibility, reputation and relationships I
cultivated during over six years serving on Congressional Staff, first
as a Marine Corps Congressional Fellow and later as a policy adviser
who worked extensively with bi-cameral committees and staff focused on
military and veterans' affairs. I have a strong desire to see needed
changes and reforms in VA that will lead to better care for veterans.
Question 12. Please provide an organizational structure and roles
and responsibilities for the staff currently employed by OCLA. Are
there any modifications to the current structure you are contemplating
and would carry out if confirmed?
Response. The information below describes how OCLA is organized
presently. Discussions are underway to develop a more consolidated
operational model for Congressional Affairs in VACO, with the functions
and personnel that exist outside of OCLA, in VHA, VBA, and NCA,
becoming more closely aligned with OCLA teams and leadership. If I am
confirmed, I will support these discussions and the objective because
better alignment will improve coordination inside VA and with Congress.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
OCLA currently has 45 Full Time Employees (FTE) and provides links
to contact lists for the oversight teams (Legislative, Benefits,
Corporate Enterprise, and Health), and for the outreach team on the
OCLA landing page, https://www.va.gov/oca/.
OCLA is led by an Assistant Secretary, who reports directly to the
Secretary of the Department of Veterans Affairs and serves as the
Department's primary point of contact with the Congress. The Assistant
Secretary also serves as the principal point of contact between OCLA
and the White House Office of Legislative Affairs.
One Principal Deputy Assistant Secretary (PDAS) and one Deputy
Assistant Secretary (DAS) for Congressional Affairs comprise the senior
OCLA leadership team and report directly to the Assistant Secretary,
who is their supervisor. In addition, there are two Schedule C Special
Assistants assigned to the Office of the Assistant Secretary.
An Executive Assistant/Director of Operations (EA) provides for
overall administrative management of the organization to include budget
formulation and execution; and directs the personnel management program
for the organization by providing oversight to employees and performing
or overseeing the full range of human resources requirements.
Each Director leads a team of Congressional Relations Officers,
Congressional Liaison Officers/Representatives, and Program Analysts
within OCLA. Specific director duties and responsibilities are:
Director, Veterans Benefits Legislative Affairs Service. The
Director, Veterans Benefits Legislative Affairs Service is responsible
for maintaining liaison activities between VA and its Congressional
oversight committees in regards to all Veterans Benefits Administration
issues, in person and through assigned Congressional Relations Officers
(CRO) and Program Analysts (PA). This includes the tracking,
monitoring, and delivery of all Requests for Information (RFI) and
briefings. In addition, the Director is responsible for all hearing
coordination and witness preparation. Where issues cross service
boundaries, directors must coordinate who will take the lead on the
issue.
Director, Veterans Health Legislative Affairs Service. The
Director, Veterans Health Legislative Affairs Service is responsible
for maintaining liaison activities between VA and its Congressional
oversight committees in regards to all Veterans Health Administration
issues, in person and through assigned Congressional Relations Officers
(CRO) and Program Analysts (PA). This includes the tracking,
monitoring, and delivery of all Requests for Information (RFI) and
briefings. In addition, the Director is responsible for all hearing
coordination and witness preparation. Where issues cross service
boundaries, directors must coordinate who will take the lead on the
issue.
Director, Corporate Enterprise Legislative Affairs Service. The
Director, Corporate Enterprise Legislative Affairs Service is
responsible for maintaining liaison activities between VA and its
Congressional oversight committees in regards to all Human Resource,
Information and Technology, and VA Construction and Leasing issues, and
serves as the Department's liaison with the Government Accountability
Office (GAO) monitoring GAO activities affecting VA and veterans. This
is performed in person and through assigned Congressional Relations
Officers (CRO) and Program Analysts (PA). This includes the tracking,
monitoring, and delivery of all Requests for Information (RFI) and
briefings. In addition, the Director is responsible for all hearing
coordination and witness preparation. Where issues cross service
boundaries, directors must coordinate who will take the lead on the
issue.
Director, Legislative Affairs Service. The Director, Legislative
Affairs Service is responsible for coordinating the development and
continued monitoring of the Departments legislative priorities. Also,
provides views and technical assistance on the Departments legislative
priorities and pending legislation before Congress. This is performed
in person and through assigned Congressional Relations Officers (CRO)
and Program Analysts (PA). This includes the tracking, monitoring, and
delivery of all Requests for Information (RFI) and briefings. In
addition, the Director is responsible for all hearing coordination and
witness preparation. Where issues cross service boundaries, directors
must coordinate who will take the lead on the issue
Director, Congressional Outreach and Congressional Liaison Service
and Correspondence. The Director, Congressional Reports and
Correspondence Service is responsible for maintaining liaison
activities between the Department of Veterans Affairs (VA) and the U.S.
Congress. The Director guides the development, documentation,
establishment and implementation of policies, guidelines and procedures
followed by Liaison Representatives in conducting liaison activities
and constituent service support. The Director ensures Members of
Congress and their staff are provided with accurate and a timely
response to constituent inquires. The Director monitors the flow of
executive correspondence, Questions for the Record and Congressionally
Mandated Reports as they traverse through the drafting and concurrence
process.
Congressional Relations Officers are assigned a primary area of
responsibility and serve as the back-up officer for another
Congressional Relations Officer assigned to their team. Congressional
Relations Officers are responsible for most actions related to
Congressional Hearings, to include coordinating and synchronizing
witness preparation, orchestrating hearing preparation sessions,
staffing the congressional testimony, accompanying the witness to the
hearing and taking action to ensure that hearing due-outs are submitted
on time to Congress. The Congressional Relations Officer reviews
letters, questions for the record, and transcripts associated with the
hearing and his/her other assigned areas of responsibility. He/she
provides advice and counsel to the Assistant Secretary, DAS and ADAS on
the topics within his/her portfolio and communicates and coordinates
with other stakeholders as appropriate.
Program Analysts work closely with and provide support to the
Congressional Relations Officers assigned to his/her team. The program
analyst is responsible for a wide range of support activities to
support the congressional relations officers, to include: coordinating
rooms for congressional hearing preparation sessions, transportation to
congressional briefings and meetings, building hearing and briefing
books, managing the processes for Questions for the Record (QFR),
hearing transcripts, and supporting the congressional relations
officers in other areas as needed.
Question 13. Please walk us through the OCLA approval process for
Requests for Information once information is received from the
appropriate subject matter expert. What percent of answers do you
anticipate that you will personally see prior to responses being sent?
Response. The Congressional Relations Officer, or Congressional
Liaison Officer, with oversight of a given topic area or region is
responsible for answering the relevant request in a timely and accurate
manner. The Congressional Relations Officer confirms the information
being sought, along with any necessary background information, and then
tasks the request to the appropriate VA Administration or program
office for a comprehensive draft response.
OCLA must ensure that all answers to Congressional inquiries
accurately reflect the Department's position. As such, except for basic
inquiries of publicly available information, the Congressional
Relations Officer is responsible for the internal coordination
necessary to vet every answer through proper channels. As soon as the
response has been cleared through the appropriate offices, the
Congressional Relations Officer transmits that response to the
originating Member office.
In FY 2016 OCLA responded to 2,812 Requests for Information and in
FY 2017, as of May 31, 2017, OCLA has responded to 1,456 Requests for
Information. If I am confirmed, I do not expect to review every
response that is sent. Therefore, I will likely have to rely on my
subordinate SES level colleagues to ensure reviews are being conducted
and overseen at the appropriate level commensurate with the issue area
or concern.
Question 14. How do you view the relationship between OCLA and
subject matter experts within VA? Do you believe there are
circumstances when OCLA would not be involved in responding to
questions from Congress?
Response. OCLA should have general or specific visibility on any
question from Congress. There are instances where a Congressional
staffer has a close professional relationship with a VA subject matter
expert (SME) and communicates directly with that SME. But, when this
occurs, it is the responsibility of that SME to ensure OCLA is aware of
the query and is included on any response provided. This ensures a
consistently accurate and optimally staffed response to Congress.
Question 15. What goals do you have for timely responses to
Congress for requests for whitepapers, information or other background
materials? How would you work within the Department to ensure that your
goals are met?
Response. VA can always strive to do better in the area of
responsiveness. I understand VA's guidelines for requests for
information (RFI) are to provide an answer within 48 hours for simple
or routine questions and within 10 business days for requests
determined to be complex. In situations where more time is needed, VA
should engage the original requester to explain that more time is
necessary and provide an estimated delivery date. Additionally, VA has
already shown it can improve when proper management actions are taken.
In calendar year (CY) 2015, it took an average of 33 business days for
VA to provide a response to a Congressional letter written to the
Secretary and in CY 2016 this average had grown to 36 business days.
However, at this point in CY 2017, VA has successfully lowered the
average time to provide a response to Congressional letters written to
the Secretary to 17 business days. I also refer you to my response to
your Question #12.
Question 16. What would you do to ensure that Members of Congress
are advised in advance of problems, issues and emerging matters--
particularly when those matters are specific to the area a member
represents?
Response. If confirmed, I will work to instill in OCLA staff the
intention to always be cultivating and improving relationships with
Member offices and staff to get early indications or warnings of a
problem or emerging issue. This approach can go a long way to
anticipating rather than reacting to a problem. Additionally, I
understand VA is working to implement a new Strategic Management Tool
to bridge data sharing gaps across multiple Offices and help senior
leaders make data-driven decisions. OCLA must understand Congressional
stakeholders' interests and concerns to improve outreach to them. By
implementing an improved system to track the history of inquiries by
specific Members and Committees, OCLA can begin to establish the
institutional knowledge necessary to anticipate issues and items of
interest and then proactively reach out to our Congressional partners
as they arise.
Question 17. Under your leadership, what would OCLA's role be in
preparation of testimony for Congressional hearings?
Response. The most visible and public interaction between VA and
Congress are Congressional hearings. OCLA is responsible for
coordinating all hearings that require a VA official to testify and is
in charge of testimony development. Recurrent and open communications
between OCLA and Congressional committee and Member staff are essential
to a successful hearing. Through staff-to-staff conversations, OCLA
Congressional Relations Officers are able to gauge the intent of the
hearing and determine the topics that the Committee members desire to
cover. OCLA's work with Committee staff, VA administrations or program
offices, and the White House ensures the testimony is accurate and
submitted on time.
Question 18. Under your leadership, would OCLA have any role in
clearing legislation that VA submits to Congress?
Response. Certainly. VA proposes to the Congress each year
``legislative proposals,'' which consist of VA's recommendations on
statutory changes that are needed to improve program operations or
modify program authority to better serve the Nation's interests. The
legislative initiatives are determined by the Secretary, with input
from appropriate VA officials, and are submitted to OMB for
consideration and Administration approval. OCLA is responsible for
coordinating among the necessary VA Administrations and program offices
and OMB during the clearance process, and leads the effort in seeking
passage by Congress.
Question 19. VA has always struggled to tell its success stories.
What could OCLA do to help the Agency tout its accomplishments?
Response. VA is making progress solving problems nationally and
locally but OCLA must communicate more consistently to our internal and
external stakeholders such as Congress, VSOs, and the media to
emphasize where and how progress is being made. Too often Congress and
the media disregard what VA does well or is doing better than others.
Part of that reflex is due to a lack of a consistent and persistent
OCLA presence on Capitol Hill. OCLA must consistently engage and
educate Congressional members and staff so they are inclined to relay
VA accomplishments to constituents and the media. If confirmed, I will
ensure OCLA leadership is on the Hill more frequently and telling those
positive stories, as well as hearing from Staff and Members.
Question 20. Under your leadership, would OCLA have any role in
modifying technical assistance provided to members who have asked for
assistance in drafting bills?
Response. OCLA is responsible for coordinating the development and
continued monitoring of the Department's legislative priorities and
does not comment on legislation except to pass along the official view
of the Department, as approved by OMB. OCLA also has the responsibility
to coordinate the Department's response to all requests made by
Congressional committees for technical assistance on legislation
pending before Congress. In these instances, the Department only
provides the technical assistance requested. Since no policy positions
are provided, OCLA does not obtain OMB clearance.
Question 21. Have you evaluated the Congressional Liaison offices
located on Capitol Hill and how they fit into the work of the Office of
Congressional and Legislative Affairs?
Response. OCLA currently has a mix of caseworkers and Congressional
Relations Officers at each location for easier access. These employees
do not resolve casework, but are liaisons to the VA offices that
conduct the casework. Additionally, their office space is often used
for small meetings or briefings. These office spaces are available for
more recurrent use by members of OCLA's teams based at VACO. If
confirmed, I intend to detail additional staff to those offices
periodically for closer proximity to Congressional offices and staff in
order to facilitate better relationships and communication.
Question 22. How would you identify and evaluate any trends in the
concerns raised by Members of Congress and how would you present the
issues raised for VA Senior Management so they might be addressed?
Response. There are a variety of technical ways to detect and
evaluate trends in concerns by using VA data analysis, but the best way
to do this is to have constructive professional relationships with
Members and their Staff and get to know where trends are emerging
before they become problems or crises. It is the role of the senior
leadership within OCLA to maintain an awareness of emergent issues and
proactively inform VA Senior management on how to address those issues.
If I am confirmed, OCLA's senior leadership will be more visible in
Congress on a recurrent basis.
Question 23. In the past, this Committee has had a difficult time
receiving timely submissions of testimony and timely responses to post-
hearing questions, please comment on ways you would work to improve the
timeliness of responses to this Committee.
Response. 93% of all VA testimony was submitted to Congress on time
in FY 2016. During that same time 58% of VA Questions for the Record
(QFR) were submitted to Congress on time. OCLA can and should strive to
markedly improve its responsiveness, and if I am confirmed, it will be
my goal to do so.
Question 24. Please explain in detail what you understand the
function of the House and Senate Committees on Veterans' Affairs to be
and how you believe OCLA should relate, respond and interact with
Committee staff.
Response. SVAC and HVAC are the primary authorizing committees in
Congress on legislation affecting veterans. Committee members work to
develop areas of expertise that meet the needs of their constituents
and enable them to make significant contributions to public policy
debates affecting veterans. Chairmen and Ranking Members work to set
the agendas for their respective Majority and Minority members. OCLA
staff should excel in regular outreach to all Committee staff, and
member staff in Washington, DC, as well as in State/District offices.
If confirmed, I will work to empower OCLA staff so that they have the
structure and resources to provide reliably consistent, timely and full
responses to Congressional inquiries. I will support and join them in
ensuring that Members of Congress and their staff are promptly notified
of any potential problems as they arise. OCLA staff will develop
strategic communications plans in concert with VA's Office of Public
and Intergovernmental Affairs (OPIA) and the Office of the Secretary of
Veterans Affairs (OSVA) to better inform members and Congressional
staff about VA decisions that will affect veterans nationally or
locally.
Question 25. If confirmed, would you be able to work collegially
with Republicans, Democrats and Independents? Please describe steps you
would take to ensure fairness when working with Democrats and
Independents, in particular.
Response. I have always worked in a non-partisan manner and have
friends and colleagues who span political party affiliations. Open and
candid communication is my preferred means of ensuring a collegial and
non-partisan approach.
Question 26. There are reports that the Administration has ordered
agencies to not provide responses to Democrats' information requests.
If you were to receive such an order, what would you do? Have you
participated in or been aware of any communications where this topic
was discussed? Please provide details on the participants in this
discussion, the substance of the discussion, and any outcomes.
Response. VA's longstanding practice has been to respond to
information requests from Congress. I am not aware of any such orders
not to respond to minority party members and it is my intent to respond
to all requests from Congress independent of the party of the
requester.
Question 27. Do you agree to meet with members and their staff on
issues that might arise that demands your immediate attention?
Response. If confirmed, I will make myself available on issues that
demand my immediate attention.
Question 28. Do you agree to appear before the Committee when
invited?
Response. Yes, to the maximum extent possible.
Question 29. Is there anything in your background that you believe
disqualifies you from being confirmed to this position?
Response. No.
Chairman Isakson. Thank you, Mr. Tucker.
Mr. Byrne.
STATEMENT OF JAMES BYRNE, NOMINATED TO BE GENERAL COUNSEL,
DEPARTMENT OF VETERANS AFFAIRS
Mr. Byrne. Good afternoon, Chairman Isakson, Ranking Member
Tester. Thank you for this opportunity to appear today. I am
humbled and honored to have been nominated by President Trump
to be the VA General Counsel. It is my highest professional
honor and I am grateful to Secretary Shulkin for his
confidence.
I am fortunate to have with me here today my wife, Becky,
and I am thankful for her unwavering support during more than
30 years of marriage. Our union started 3 days after my
commissioning into the U.S. Marine Corps and God has blessed us
with six children and four grandchildren, some of whom are here
today.
My wife, in the gray, please stand, and daughters Hannah,
Gabby, and Sarah.
On induction day at the U.S. Naval Academy some 35 years
ago, having been dispossessed of all my civilian possessions
and most of my hair, I stood with 1,300 classmates to take the
oath of office, an oath that I have taken many times since, to
serve something greater than ourselves by supporting and
defending the Constitution of the United States. I am honored
and excited by this prospect of, if confirmed, taking that oath
again.
I spent the better part of my career in service to this
great Nation. Indeed, service is in my family DNA. Both my
father and father-in-law served in the U.S. military, my
brother is an active duty Navy captain, and now our two sons
and son-in-law proudly serve in the U.S. Armed Forces. Army son
Dan is currently stationed in Maryland, while Navy son Mic just
completed nuclear power school and serves aboard the USS
Alaska, home-ported in Kings Bay, Georgia. In addition, our
Navy son-in-law Aaron just returned from a 6-month deployment
aboard the USS Helena and is based in Norfolk, Virginia.
In January 2004, I was an activated Marine reservist
assigned as Officer in Charge of the Marine Liaison Office at
the then National Naval Medical Center, Bethesda, Maryland. It
was there that I led a team of dedicated Marines responsible
for attending to all of the non-medical needs of our wounded
warriors being cared for at Bethesda, Walter Reed Army Medical
Center, and Malcolm Grow Air Force Hospital.
Even today it is difficult to describe this most hallowed
and emotional period in my military career. Simply stated, it
was the most gut-wrenching experience of my life. I am
extremely proud of the work accomplished by my liaison team.
Alongside the military families and servicemembers who are
assigned as our charges, we shared in the joy of return and
recovery, and we wept in the despair of loss and sacrifice.
Nothing will ever match that experience. And if confirmed, I
will endeavor to honor the sacrifices of our uniformed
servicemembers through my service at the VA.
We all acknowledge how busy our Nation's military forces
are today and how our country remains committed and prepared to
serving veterans as they department the military--some healthy,
some scarred, several fighting for wholeness that combat
erodes, all veterans, all deserving the best we can offer.
If confirmed, one of my top priorities will be to help the
VA Accountability and Whistleblower Protection Act, that it is
carried out in an effective and consistent way. While enacted
only a month ago, a know the VA is leaning forward in their
planning. The law established a new office in the VA with
numerous changes in personnel processes. I know working with
the Secretary in partnership with other offices to make sure we
get it right is absolutely critical.
I thank the Committee Members for their support they have
provided the VA and our veterans. Thank you again, Mr.
Chairman, for your consideration of my nomination, and I am
happy to answer any questions you may have.
I respectfully ask that this statement be entered into the
record.
[The prepared statement of Mr. Byrne follows:]
Prepared Statement of James Byrne, Nominee to be General Counsel,
U.S. Department of Veterans Affairs
Good afternoon, Chairman Isakson, Ranking Member Tester, and
distinguished Members of the Committee. Thank you for this opportunity
to appear today. I am humbled and honored to have been nominated by
President Trump to be the VA General Counsel. It is my highest
professional honor, and I am grateful to Secretary Shulkin for his
confidence.
I am fortunate to have with me here today my wife Becky, and I am
thankful for her unwavering support during more than 30 years of
marriage. Our union started three days after my commissioning into the
United States Marine Corps, and God has blessed us with six children
and four grandchildren, some of whom are here today.
On Induction Day at the U.S. Naval Academy some 35 years ago,
having been dispossessed of all my civilian possessions and most of my
hair, I stood with 1,300 classmates to take the oath of office--an oath
I have taken many times since--to serve something greater than
ourselves by supporting and defending the Constitution of the United
States. I am honored and excited by the prospect of, if confirmed,
taking that oath again.
I have spent the better part of my career in service to this great
Nation. Indeed, service is in my family DNA. Both my father and father-
in-law served in the U.S. Military, and now our two sons and son-in-law
proudly serve in the U.S. Armed Forces. Army son Dan is currently
stationed in Maryland, while Navy son Mic just completed nuclear power
school and serves aboard the USS Alaska home-ported in Kings Bay,
Georgia. In addition, our Navy son-in-law Aaron just returned from a
six-month deployment aboard the USS Helena and is based in Norfolk,
Virginia.
In January 2004, I was an activated Marine reservist assigned as
Officer in Charge of the Marine Liaison Office at the then National
Naval Medical Center, Bethesda, Maryland. It was there that I led a
team of dedicated Marines responsible for attending to all of the non-
medical needs of our wounded warriors being cared for at Bethesda,
Walter Reed Army Medical Center, and Malcolm Grow Air Force hospital.
It is well-known especially to this Committee that Servicemembers
are supremely loyal to their units. The hearts and minds of men and
women who returned home for medical care were of course always with
their team members engaged in combat operations in Iraq, Afghanistan,
and elsewhere. This loyalty, service, and undying dedication had a
profound effect on me, and drove home the profound importance of the
mission of supporting these wounded warriors under my command and their
families.
Even today it is difficult to describe this most hallowed and
emotional period of my military career. Simply stated, it was the most
gut-wrenching experience of my life. I am extremely proud of the work
accomplished by my liaison team. Alongside the military families and
Servicemembers who were assigned as our charges, we shared in the joy
of return and recovery and we wept in the despair of loss and
sacrifice.
Nothing will ever match that experience. And, if confirmed, I will
endeavor to honor the sacrifices of our uniformed Servicemembers
through my service at the VA.
This past May, Secretary Shulkin outlined his top priorities in
terms of 13 areas of significant risk for VA. One priority in
particular--elimination of Veterans' suicide--is for me neither
academic nor impersonal. I share Dr. Shulkin's passion in this area,
having lost a Marine under my command to suicide and knowing that many
more still suffer from Post-Traumatic Stress. I have for the past ten
years volunteered on the Board of Directors for the Give an Hour
organization, which is dedicated to providing free mental health
services to our Servicemembers and their families, and if confirmed I
will do all in my power to help Secretary Shulkin end this scourge.
We all acknowledge how busy our Nation's military forces are today
and how our country remains committed and prepared to serving Veterans
as they depart the military--some healthy, some scarred, several
fighting for wholeness that combat erodes. All Veterans. All deserving
the best we can offer.
I thank the Committee members for the support they have provided to
the VA and our Veterans in helping to fulfill President Lincoln's
promise and our sacred mission ``to care for him who shall have borne
the battle.'' There is no nobler mission or higher calling for me, and
it would be my distinct honor and privilege to support this effort.
Thank you again, Mr. Chairman and Members of the Committee, for
your consideration of my nomination. I am happy to answer any questions
you may have, and I respectfully ask that this statement be entered
into the record.
______
[The Committee questionnaire for Presidential nominees
follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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[A letter from the Office of Government Ethics follows:]
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
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[Letter from the nominee to the Office of General Counsel,
U.S. Department of Veterans Affairs:]
June 30, 2017
Ms. Tammy L. Kennedy
Chief Counsel and
Designated Agency Ethics Official
U.S. Department of Veterans Affairs
Washington, DC.
Dear Ms. Kennedy, The purpose of this letter is to describe the
steps that I will take to avoid any actual or apparent conflict of
interest in the event that I am confirmed for the position of General
Counsel of the U.S. Department of Veterans Affairs.
As required by 18 U.S.C. Sec. 208(a), I will not participate
personally and substantially in any particular matter in which I know
that I have a financial interest directly and predictably affected by
the matter, or in which I know that a person whose interests are
imputed to me has a financial interest directly and predictably
affected by the matter, unless I first obtain a written waiver,
pursuant to 18 U.S.C. Sec. 208(b)(1), or qualify for a regulatory
exemption, pursuant to 18 U.S.C. Sec. 208(b)(2). I understand that the
interests of the following persons are imputed to me: any spouse or
minor child of mine; any general partner of a partnership in which I am
a limited or general partner; any organization in which I serve as
officer, director, trustee, general partner or employee; and any person
or organization with which I am negotiating or have an arrangement
concerning prospective employment.
Upon confirmation, I will resign from my positions with the
Lockheed Martin Corporation and Give an Hour. For a period of 1 year
after my resignation from each of these entities, I will not
participate personally and substantially in any particular matter
involving specific parties in which I know that entity is a party or
represents a party, unless I am first authorized to participate,
pursuant to 5 C.F.R. Sec. 2635.502(d).
Consistent with the customary practice for departing executives of
Lockheed Martin Corporation, I will receive a pro rata bonus for 2017.
Lockheed Martin will calculate this bonus using an objective formula
and will reduce the bonus proportionally to compensate me only for the
portion of 2017 during which I will have worked for Lockheed Martin.
Lockheed Martin will pay me this bonus before I assume the duties of
General Counsel.
I own shares of Lockheed Martin Corporation common stock and the
Company Stock Fund, which holds Lockheed Martin Corporation stock. I
also own unvested restricted stock units in the Lockheed Martin
Corporation. I do not own restricted stock or stock options. Upon
resignation from Lockheed Martin, I will forfeit all unvested
restricted stock units. Within 90 days of my confirmation, I will
divest my interests in the following entities: Lockheed Martin
Corporation common stock, and the Company Stock Fund. Until I have done
so, I will not participate personally and substantially in any
particular matter that to my knowledge has a direct and predictable
effect on the financial interests of these entities, unless I first
obtain a written waiver, pursuant to 18 U.S.C. Sec. 208(b)(1), or
qualify for a regulatory exemption, pursuant to 18 U.S.C.
Sec. 208(b)(2).
Within 90 days of confirmation, I will also divest my interests in
the following Lockheed Martin-specific funds: Large Cap Stock Fund,
Small/Mid-Cap Stock Fund, and Target Date Fund 2030. With regard to
each of these funds, until I have divested the fund, I will not
participate personally and substantially in any particular matter that
to my knowledge has a direct and predictable effect on the financial
interests of that fund or its underlying assets, unless I first obtain
a written waiver, pursuant to 18 U.S.C. Sec. 208(b)(1), or qualify for
a regulatory exemption, pursuant to 18 U.S.C. Sec. 208(b)(2).
I participate in the Lockheed Martin Corporation Deferred
Management Incentive Compensation Plan, the Lockheed Martin Non-
Qualified Supplemental Savings Plan, and the Lockheed Martin Non-
Qualified Capital Accumulation Plan. Upon my departure from Lockheed
Martin, I will receive lump sum payouts of these plans before I assume
the duties of General Counsel.
I understand that I may be eligible to request a Certificate of
Divestiture for qualifying assets and that a Certificate of Divestiture
is effective only if obtained prior to divestiture. Regardless of
whether I receive a Certificate of Divestiture, I will ensure that all
divestitures discussed in this agreement occur within the agreed upon
timeframes and that all proceeds are invested in non-conflicting
assets.
My spouse is employed by the Arlington Diocese, St. Luke Catholic
School in a position for which she receives a fixed annual salary. For
as long as my spouse continues to work for the Arlington Diocese, St.
Luke Catholic School, I will not participate personally and
substantially in any particular matter involving specific parties in
which I know the Arlington Diocese, St. Luke Catholic School is a party
or represents a party, unless I am first authorized to participate,
pursuant to 5 C.F.R. Sec. 2635.502(d).
If I have a managed account or otherwise use the services of an
investment professional during my appointment, I will ensure that the
account manager or investment professional obtains my prior approval on
a case-by-case basis for the purchase of any assets other than cash,
cash equivalents, investment funds that qualify for the exemption at 5
C.F.R. Sec. 2640.201(a), obligations of the United States, or municipal
bonds.
I will meet in person with you during the first week of my service
in the position of General Counsel in order to complete the initial
ethics briefing required under 5 C.F.R. Sec. 2638.305. Within 90 days
of my confirmation, I will document my compliance with this ethics
agreement by notifying you in writing when I have completed the steps
described in this ethics agreement.
I understand that as an appointee I will be required to sign the
Ethics Pledge (Exec. Order No. 13770) and that I will be bound by the
requirements and restrictions therein in addition to the commitments I
have made in this ethics agreement.
I have been advised that this ethics agreement will be posted
publicly, consistent with 5 U.S.C. Sec. 552, on the website of the U.S.
Office of Government Ethics with ethics agreements of other
Presidential nominees who file public financial disclosure reports.
Sincerely,
James Michael Byrne,
Nominee.
______
Response to Prehearing Questions Submitted by Hon. Johnny Isakson to
James Byrne, Nominee to be the General Counsel, U.S. Department of
Veterans Affairs
Question 1. Have you and Secretary Shulkin discussed the role he
would like you to assume as General Counsel if you are confirmed?
Response. The Secretary in my interview for this position outlined
his priorities and vision for the Department of Veterans Affairs, and
placed special importance on the support of the Office of General
Counsel in fulfilling those priorities. If confirmed, I expect to
support his priorities along with those of the President.
Question 2. If confirmed as General Counsel, you would be in charge
of nearly 700 personnel nationwide.
A. What experiences do you believe have best prepared you for this
role?
Response. My career has been one of increasing responsibilities in
leadership roles in the military, the Federal Government, and the
private sector. Those leadership roles have critically involved leading
and managing employees. As Deputy Special Counsel for the Office of
Special Counsel (OSC), I served in a career Senior Executive Service
(SES) position and was responsible for the daily operations and
management of over 120 attorneys, investigators and specialists
assigned to four field and headquarters offices. OSC is an
administratively independent investigative and prosecutorial law
enforcement agency with jurisdiction over the entire executive branch.
B. How would you describe your management style?
Response. I demonstrate in my professional conduct the highest
level of ethics and integrity. I expect the same from those who report
to me. If I am confirmed, I will see it as my key responsibility as a
leader and manager to energize and empower OGC employees to focus their
efforts on their core mission. This will include developing their
abilities and providing them the best tools available to perform their
jobs.
Question 3. Do you yet have a sense of what the most significant
challenges are facing the Office of General Counsel at this time?
Response. I have had the chance to review information related to
Secretary Shulkin's priorities, OGC's budget, significant ongoing
public litigation, and some recently enacted legislation that the
Department is working to implement. In that overview, I came to
appreciate the breadth, depth, and complexity of the work by the Office
of General Counsel, as well as its importance to the success of VA's
multiple missions. If I am confirmed, I view the following as the most
prominent challenges: fulfilling Veterans' and the public's rightful
expectations of personnel accountability actions; efficient high-dollar
and complex procurements; cost effective and timely ongoing major as
well as minor construction projects; managing the ever-growing
appellate workload before the Court of Appeals for Veterans Claims; and
supporting the special complexities presented by the Veterans Choice
program. While performing at a high level at these functions, the OGC
also must remain fully engaged with the Committee regarding legislative
matters.
Question 4. If confirmed, what priorities would you hope to
accomplish during your tenure as General Counsel?
Response. If I am confirmed, my priority as General Counsel will be
to lead OGC in supporting the Secretary in fulfilling his priorities
while continuing to identify and meet the legal needs of VA. If
confirmed, I will focus my efforts on ensuring OGC provides the support
Secretary Shulkin and VA business leaders need to accomplish providing
Veterans' benefits and services--and to do so with focused efficiency.
Question 5. If confirmed, do you plan on making any changes in the
overall organizational structure of the Office of General Counsel?
Response. If confirmed, I will examine in a thorough and systematic
way all the components of the OGC organization to ensure compatibility
with all business needs and its ability to support the Secretary's
priorities. This includes the Secretary's modernization efforts, which
are underway throughout the Department. Otherwise, I believe it would
be premature to offer any specific assessments of the OGC
organizational structure at this time.
Question 6. When crafting legislation, Committee Members or their
staffs frequently request ``technical assistance'' from the Department
of Veterans Affairs (VA), in order to receive purely technical--not
policy--feedback as to whether there are any drafting errors or
oversights in proposed legislation, whether the language is clear and
accomplishes the intended purpose, and whether any technical changes
could strengthen the bill language.
A. Do you view this as an appropriate function for the Office of
General Counsel to perform?
Response. Yes.
B. If confirmed, will you take steps to ensure that the Committee
is receiving thorough and purely technical feedback through this
process?
Response. Yes.
Question 7. What is your view on the role the Office of General
Counsel should play in ensuring that VA understands and complies with
decisions of the U.S. Court of Appeals for Veterans Claims and other
courts? If confirmed, do you plan on making any changes in the Office's
role?
Response. Just as with legislation, judicial decisions require
adept legal analysis to assist in understanding what actions are
required to ensure an agency becomes and remains fully compliant with
applicable decisions. OGC should, in my opinion, play an active role in
interpreting decisions of the Court of Appeals for Veterans Claims and
other courts, and in educating VA leadership about the actions they
must take to ensure compliance with those decisions. If confirmed, I
will examine how the office is fulfilling this role. Otherwise, it
would be premature at this time for me to offer any specific
observations on potential changes.
______
Response to Prehearing Questions Submitted by Hon. Jon Tester to James
Byrne, Nominee to be the General Counsel, U.S. Department of Veterans
Affairs
Question 8. Have you and Secretary Shulkin discussed the role he
would like you to assume as General Counsel if you are confirmed?
Response. The Secretary in my interview for this position outlined
his priorities and vision for the Department of Veterans Affairs, and
placed special importance on the support of the Office of General
Counsel in fulfilling those priorities. If confirmed, I expect to
support his priorities along with those of the President.
Question 9. What role do you believe the General Counsel plays in
evaluating legislation, both introduced in Congress and proposed by VA,
for legal sufficiency and impact?
Response. VA's Office of General Counsel (OGC) provides conclusive
interpretations of legal matters for the Department. I believe it
follows that OGC is and would continue to be essential in any
evaluation of legislation, in close consultation with subject matter
experts from the appropriate office. I would expect offices other than
OGC to be responsible for analysis of the budget impact of legislation.
Under your leadership, what would OGC's role be in preparation of
testimony for Congressional hearings?
As a nominee, I have not been in a position to observe VA's current
internal processes for preparation of testimony. If confirmed, I will
undertake a close review of OGC's role in the preparation of testimony,
which I would expect to vary depending on whether the hearing is for
the consideration of specific bills, or is an oversight hearing
focusing on a particular program or issue. I believe the ultimate goal
for the Department is to provide Congress with timely testimony that is
authoritative and useful as it conducts its legislative and oversight
functions.
Question 10. What do you see as the biggest challenges facing VA at
this time?
Response. I view OGC as providing key support for the Secretary in
meeting the challenges and priorities he has identified. Therefore, I
would reference the major challenges the Secretary articulated in May
in his ``State of the VA,'' which include expanding access to care;
streamlining the processes through which Veterans can seek care in the
community; ensuring consistent quality of care both within VA and from
community providers; addressing the disability claims and appeals
backlog; improving VA's IT infrastructure; modernizing VA's capital
assets; holding employees accountable for misconduct or poor
performance; reducing bureaucracy and burdensome regulations;
preventing fraud, waste and abuse; and doing everything within VA's
power to end Veteran suicide.
Question 11. What do you see as the biggest challenges facing the
General Counsel's office at this time?
Response. I have had the chance to review information related to
Secretary Shulkin's priorities, OGC's budget, significant ongoing
public litigation, and some recently enacted legislation that the
Department is working to implement. In that overview, I came to further
appreciate the breadth, depth, and complexity of the work by the Office
of General Counsel, as well as its importance to the success of VA's
multiple missions. If I am confirmed, I view the following as the most
prominent challenges: fulfilling Veterans' and the public's rightful
expectations of personnel accountability actions; efficient high-dollar
and complex procurements; cost effective and timely ongoing major as
well as minor construction projects; managing the ever-growing
appellate workload before the Court of Appeals for Veterans Claims; and
supporting the special complexities presented by the Veterans Choice
program. While performing at a high level at these functions, the OGC
also must remain fully engaged with the Committee regarding legislative
matters.
Question 12. Are you more of a ``hands-on'' manager or do you tend
to rely on significant delegation? Do you seek to achieve consensus
with those on your management team before making a decision or do you
generally gather relevant information and input, and then make a
decision?
Response. With 722 legal professionals in 94 locations, if I am
confirmed, I will need to delegate much authority and enable OGC
personnel by aligning resources to the Department's highest-priority
legal needs, and acting as a true business partner to VA leaders.
Accountability for OGC activities cannot be delegated and will always
remain with me. Consensus after thoughtful review of diverse input is
best, but as necessary, I am comfortable making timely decisions based
upon the best available information.
Question 13. Describe the degree to which you anticipate actively
managing the work of Regional Counsels.
Response. As I understand the current state of affairs in OGC, the
leadership team--to include the District Chief Counsels, who were
formerly known as Regional Counsels--works quite collaboratively
together. If confirmed, I'd want to continue that approach, ensuring
through leadership team communication and collaboration that all OGC
personnel, both in the field and in headquarters, are advising and
representing their organizational clients in a way that is consistent
with the Secretary's vision and priorities.
Question 14. If confirmed, how do you envision collaborating with
the Board of Veterans' Appeals, and specifically, with its Chairman?
Response. If confirmed, I will examine how this collaboration
occurs now. It would be premature to offer any detailed observations at
this time. I can state, if confirmed, that I will work collaboratively
with all organizations whose work shapes and applies VA's legal
framework and interpret the statutory and legal authorities relevant to
the Department and to the Veterans it serves.
Question 15. What role do you believe the Office of General Counsel
should play in ensuring that VA understands and complies with decisions
of the U.S. Court of Appeals for Veterans Claims and other courts?
Response. Just as with legislation, judicial decisions require
adept legal analysis to assist in understanding what actions are
required to ensure an agency becomes and remains fully compliant with
decisions that apply to it. OGC should, in my opinion, play an active
role in interpreting decisions of the Court of Appeals for Veterans
Claims and other courts, and in educating VA leadership about the
actions they must take to ensure compliance with those decisions. If
confirmed, I will examine how the office is fulfilling that role, but
it would be premature at this time to offer any observations on
potential changes.
Question 16. What role should the Office of General Counsel play in
determining whether a specific disease or illness should be presumed
service-connected?
Response. I know this is a complex and highly specialized topic
that is heavily dependent on scientific studies. One of the first areas
I will review should I be confirmed will be to examine the framework
and process that determines presumptions. I believe as a nominee it
would be premature to provide my observations at this time.
Question 17. Do you agree to supply the Committee with such non-
privileged information, materials, and documents as may be requested by
the Committee in its oversight and legislative capacities for so long
as you serve in the position of General Counsel?
Response. Yes, consistent with applicable law.
Question 18. The Secretary recently announced he would withdraw
VA's appeal in the Staab case, which was decided last year by the Court
of Appeals for Veterans Claims.
a. What is your understanding of the Staab case?
Response. As I understand it, that case involved a challenge to
VA's regulation governing reimbursement for emergency treatment of a
Veteran's non-service-connected condition furnished by a community
provider. Prior to the ruling of the Court of Appeals for Veterans'
Claims, VA's regulations barred reimbursement when the Veteran had
other health insurance. The Court ruled that a 2010 amendment to the
underlying statute allowed VA to reimburse Veterans for treatment in a
non-VA facility if they have other health insurance that would pay for
a portion of the emergency care.
b. Do you believe the Department had a legal basis for continuing
to defend its position?
Response. As a nominee who was not involved in assessing VA's legal
options during this litigation, I am not in a position to offer my
personal assessment of how the litigation was conducted. In any event,
I understand VA has requested the U.S. Department of Justice withdraw
the appeal.
c. What factors would you recommend that the Secretary consider
when determining whether a high-profile case, such as Staab, should be
pursued in court?
Response. Such an analysis is highly dependent on the facts of the
case. However, there are some principles that I believe would apply in
almost all litigation, and would guide my advice to the Secretary
should I be confirmed: whether a particular litigation strategy is in
the best interest of Veterans as a whole; what impact pursuing or not
pursuing a particular appeal might have on the Department's operations
or financial position, especially in light of a financial impact on the
delivery of services to Veterans; and, whether taking a particular
legal position might have unintended consequences in other litigation
to which VA is a party.
Question 19. Currently VA submits the names of Veterans determined
to be mentally incompetent to the FBI for inclusion in the National
Instant Criminal Background Check System (NICS). What are your views of
VA's responsibility, under current laws and regulations, to report
names for inclusion in NICS?
Response. As I understand it, the Brady Act requires the reporting
of certain individuals, including those who have been adjudicated as
``mentally defective'' (as defined by DOJ regulations that a person
``lacks the mental capacity to manage his or her own affairs'') or
committed to a mental institution, to the FBI for inclusion in the
NICS. My understanding is that VA's responsibilities under the law are
shaped by regulations and guidance from other agencies. Until I am in a
better position to closely study these authorities and VA's
interpretation of them, it would be premature to offer my observation.
Question 20. Please describe your prior experience with the Office
of Special Counsel and Office of Inspector General and your dealings
with whistleblowers and those claiming whistleblower status. How do you
envision the Office of General Counsel working with the Special Counsel
or the Inspector General as well as the forthcoming Office of
Accountability and Whistleblower Protection?
Response. My last position in the Federal Government was service as
a career Senior Executive Service (SES) in the position of Deputy
Special Counsel with the Office of Special Counsel. I understand that
VA in general, and OGC in particular, has established good,
collaborative relationships with both OSC and the VA OIG to ensure
appropriate whistleblower protections. If confirmed, I would continue
those relationships, and would work closely with the new VA Office of
Accountability and Whistleblower Protection to continue to protect
whistleblowers' rights.
Question 21. Do you agree that VA employees have an absolute right
to petition or communicate with Members of Congress and congressional
staff about matters related to VA and that right may not be interfered
with or denied?
Response. The Constitution and caselaw are clear that government
employees, including VA employees, may petition the Congress,
communicate with their elected representatives and make other protected
communications. Of course, such communications can be restricted under
statutes that address issues such as matters regarding pending
procurements, regulations, and other categories of protected
information.
Question 22. Have you ever served as a mediator or arbitrator in
alternative dispute resolution proceedings and, ?if so, a description
of the most significant matters with which you were involved in that
capacity.
Response. I have not served as a mediator or arbitrator in any
alternative dispute resolution proceedings.
Question 23. Describe:
a. the general character of your law practice and indicate by date
when its character has changed over the years.
Response. The character of my law practice has varied since
graduating law school in 1995. I started as a Federal judicial law
clerk to the Honorable Malcolm J. Howard, U.S. District Court, Eastern
District of North Carolina. I then moved to criminal prosecutions with
the DOJ Criminal Division and management of investigations/prosecutions
(Prohibited Personnel Practices, Hatch Act and Uniformed Employment and
Reemployment Act) with OSC. I have also served as in-house counsel.
b. your typical clients and the areas at each period of your legal
career, if any, in which you have specialized.
Response. My clients over my career were the U.S. Government and a
global corporation. My areas of specialization were: criminal
prosecutions, corporate internal investigations, ethics, business
conduct, privacy, data protection, cybersecurity, electronic discovery
and counterintelligence.
c. the percentage of your practice that has been in litigation and
whether you appeared in court frequently, occasionally, or not at all.
If the frequency of your appearances in court varied, describe such
variance, providing dates.
Response. As a Federal prosecutor, I appeared in several Federal
districts across the U.S. representing the United States primarily
against defendants accused of drug trafficking.
d. your practice, if any, before the U.S Merit Systems Protection
Board, Federal district courts, and the US Court of Appeals for the
Federal Circuit.
Response. I prosecuted criminal cases in several Federal district
courts including SDFL, AK, RI, EDVA, and DC. I prepared a brief and
successfully argued a criminal appeal before the U.S. Fourth Circuit
Court of Appeals. I have not practiced before the MSPB or any other
administrative body.
Question 24. Litigation: Describe the most significant litigated
matters which you personally handled, whether or not you were the
attorney of record. Give citations, if the cases were reported, and the
docket number and date if unreported. Give a capsule summary of the
substance of each case. Identify the party or parties whom you
represented; describe in detail the nature of your participation in the
litigation and the final disposition of the case.
Response. I have done my best to identify significant litigation
matters which I personally handled. Despite my searches, there may be
other items I have been unable to identify, find or recall. I have
located the following:
Indicted Carlos Castano and 12 lieutenants of the
Autodefensas Unidas de Colombia (Paramilitaries) in Colombia, then
largest narco-terrorist organization in the world. United States v.
Carlos Castano, et al, U.S. District Court, DC. Many arrests and
convictions occurred after I departed DOJ.
Rendered defendants from Panama to DC, tried and convicted
drug traffickers who controlled the Pan-American Highway in late 1990s.
U.S. v. Rafael Mejia and Homes Valencia Rios, U.S. District Court, DC.
Operation Millennium which resulted in the arrest of 30
drug traffickers and money launderers in Bogota, Medellin and Cali, as
part of a coordinated U.S./Colombian investigation. The arrests were
the culmination of a 1-year operation designed to dismantle a
Colombian-based transportation consortium believed to be responsible
for supplying between 20 and 30 tons of cocaine per month to the United
States and Europe.
U.S. Attorney General's Heroin Initiative--12-month detail
to Miami U.S. Attorney's Office, Narcotics Section; several complex
multi-district and international investigations and trials.
Convicted Miami middle-school principal of selling multi-
kilogram quantities of cocaine on school property during school hours,
U.S. v. Willie Young, U.S. District Court, SDFL.
Additional international, multi-district trials in SDFL,
and Districts of DC, AK and RI.
Question 25. Legal Activities: Describe the most significant legal
activities you have pursued, including significant litigation which did
not progress to trial or legal matters that did not involve litigation.
Describe the full nature of your participation in these activities.
Response. Many of my criminal trials at DOJ in various districts
did not proceed to trial and were resolved pursuant to a plea agreement
between the defendants and the U.S. Government.
Question 26. What role do you anticipate playing in the Secretary's
policy decisions?
Response. I believe the role of an agency General Counsel is to
provide advice as to the legal risks and ramifications of policy
decisions that may be under consideration. I believe that would be the
Secretary's expectation of my role if confirmed, as well as to
facilitate and support the Secretary's priorities by the provision of
sound legal advice.
Question 27. As the Agency's Designated Ethics Officer, how do you
anticipate dealing with conflicts of interest at VA or incidents in
which the Department may fail to adhere to Federal ethics rules?
Response. The U.S. Office of Government Ethics has defined in
regulations the role of each executive branch agency's Designated
Agency Ethics Officer (DAEO). These regulations hold that the DAEO is
responsible for, among other things, providing advice and counseling to
prospective and current employees regarding government ethics laws and
regulations, including those dealing with conflicts of interest;
carrying out an effective government ethics education program; taking
appropriate action to resolve conflicts of interest and appearance of
conflicts of interest, through recusals, directed divestitures,
waivers, authorizations, reassignments, and other appropriate means;
and assisting the agency in enforcement of ethics laws and regulations
when agency officials make appropriate referrals to the Inspector
General or the Department of Justice. If confirmed, I will actively
fulfill these responsibilities.
Question 28. There are reports that the Administration, through
their Office of General Counsel, has ordered agencies to not provide
responses to Democrats' information requests. If you were to receive
such an order, what would you do? Have you participated in or been
aware of any communications where this topic was discussed? Please
provide details on the participants in this discussion, the substance
of the discussion, and any outcomes.
Response. My only discussion of this issue has been since I
received these pre-hearing questions, in order to respond to them. My
understanding is that such a prohibition has never been, and is not
now, the practice of the VA.
Chairman Isakson. Without objection, and the statement of
all of you will be entered for the record. I have had the
privilege of reading all those statements as well and I am
going to quote from a couple of them in my opening remarks.
Tom Bowman, I want to ask you a question. You and I have
been together two and a half years. Correct?
Mr. Bowman. Yes, sir.
Chairman Isakson. In any time during our activities, in my
role as Chairman of this Committee or yours, in terms of the
leader of the staff, have you ever heard me utter, or, for that
matter, any Member of the Committee utter, privatization of
veterans benefits or services being a solution to any problem
that we have?
Mr. Bowman. I think that the discussions that I have heard,
both in this room as well as in other briefings, the focus of
you, as the Chairman, Ranking Member, and other members has
been always focused on what is best for the veteran.
Chairman Isakson. Is it not true that every time we have
ever had anything like Choice, which was, of course, a huge
challenge that we all met, that we used it as a force
multiplier for benefits to the veterans, not a replacement for
the VA services themselves?
Mr. Bowman. Yes, sir.
Chairman Isakson. And, is it not true that--did you go to
Denver with me, to the Denver Hospital?
Mr. Bowman. Yes, sir.
Chairman Isakson. That was our first field trip, if you
will. Actually, it was our first crisis, if I remember
correctly. We had a hospital that was supposed to cost $600
million and it was going to run $1.4 billion. It was about to
be shut down. Dick Blumenthal went with me, he was Ranking
Member at the time, and we went out there, took the bull by the
horns, and tried to figure out a way to make it work, but also
make sure it never happened again. Through that effort and
through Dick's cooperation and his effort, and the Ranking
Member, Jon Tester, that hospital is going to be finished, with
no more cost overruns. At least that is what I am told and have
been led to believe. We also got the VA out of building big
projects that did not need to be built, and instead got the
Corps of Engineers doing them. Is that not correct?
Mr. Bowman. Yes, sir.
Chairman Isakson. I think during the course of your service
with us you have been a part of being a catalyst to solve
problems, never lose the perspective of the VA being an
organization of the U.S. Government whose responsibility it is
to serve our veterans, but always looking for the best way to
solve the problems, whatever that might be. Is that correct?
Mr. Bowman. That is correct, sir.
Chairman Isakson. Mr. Byrne, in reading your testimony--and
I want to repeat one sentence, and it was just very meaningful
to me. It said, ``On induction day at the U.S. Naval Academy
some 35 years ago, having been dispossessed of my civilian
possessions and most of my hair, I stood with 1,300 classmates
to take the oath of office, an oath I have given many times
before, to serve something greater than ourselves by supporting
and defending the Constitution of the United States of
America.''
That is a great statement, and for everybody that is before
us today for confirmation, this is about more than ourselves.
This is about something bigger than ourselves. I want to have a
VA that projects itself to our veterans exactly that way, that
we know our job is to make sure that they know that we are a
part of something much bigger than ourselves, and that they are
the most important thing in our job, and that is to see that
they get the services that they deserve.
I also think we talked in my office a little bit, if I am
not mistaken, Mr. Byrne, about the accountability legislation
and its implementation. Can you give us any idea of how you
plan to address the implementation of the Accountability Bill
that was passed by the Senate and House, and is now law?
Mr. Byrne. Yes, sir. I will make it a priority, as I said
in my statement, to engage in supporting, across the VA, the
implementation of that act. There is a new office that is being
stood up, and as you would imagine, when you have a new office
with a new reporting structure, the relationships are going to
be very key, in particular, the relationship between the
Inspector General, Office of General Counsel (OGC), Human
Resources, and this new office. So, I am coming in with a fresh
look at this, understanding that we all need to work very
closely together in implementing this act.
Chairman Isakson. Well, I do not want to put any pressure
on you, but the success of the failure of the accountability
program lies squarely on your shoulders.
Mr. Byrne. Yes, sir.
Chairman Isakson. Is that right, Jon?
Senator Tester. That is a fact.
Mr. Byrne. I embrace that.
Chairman Isakson. Senator Tester and I are looking to you
to tell us, not after the fact, but in advance of any problem
you see coming down the road, and let us attack it early, let
us attack it often, and let us do whatever we can,
symbolically, to send the signal to the employees of the
Veterans Administration that we are working together in
unanimity, just like you suggested in the statement I read,
that you wrote.
If we can do that together, elected officials, senior
appointed members of the VA, and rank and file employees, then
we will change the culture of the Veterans Administration, in
my judgment, all for the better.
I want to read one of your statements, Mr. Tucker. You all
did some good work, or somebody did some good work. If you all
are like me, most of your good speeches come from somebody who
wrote them for you, but I am sure you all wrote these
yourselves.
I love this statement, Mr. Tucker. It says, ``Those six and
one-half years as a Senate staffer convinced me the only way to
get the really big things done is to build relationships with
sincere and like-minded people, of both political parties, who
are committed to accomplishing the mission together.''
I think that is music to my ears, and that is exactly the
way Jon and I have tried to operate, and exactly the way Dick
and I did when he was Ranking Member of the Committee. In your
job as Assistant Secretary and Liaison on Congressional
Affairs, your promoting that attitude is going to be a
tremendous help to us. We are not Republican veterans. We are
not Democratic veterans. We are veterans of the United States
military and we have a job to do. We want to work together, and
our mission is to work together to pull it off, not to count
noses to see how many of us there are and how many of them
there are.
So, I appreciate very much your statement and that being
your goal. Is there anything you would like to add to it, in
terms of how you intend to approach your job to see to it that
that statement is something that should manifest itself under
your leadership?
Mr. Tucker. Senator, the only thing I would say at this
point, without getting into too much details, is I think that
the VA Office of Congressional and Legislative Affairs has to
have a more active and visible presence on Capitol Hill, and
that goes from the senior leadership down to the rank and file
in the office. I think there is some work to be done there. I
think there is a consolidation that we referenced earlier, and
I think that is going to help get more of us out and about, and
developing the relationships that we need to have.
Chairman Isakson. You know, I am going to get myself in
trouble here because I am running over time, so I apologize.
But, one idea I have for you--this may not be a good idea but I
will admit to that myself--we are always calling people to come
before us, and let us ask them questions and testify. It
occurred to me when I was reading some of these last night,
what if you called us to come over to the VA and let the VA
employees ask us questions about why we did what we did on X,
Y, or Z?
We tried. Tom and I tried once, early on, 2 years ago, to
go to the VA, and we had a town hall meeting in the VA
building, but it was too large a crowd to really have the one-
on-one back and forth. I would just tell you that I stand
ready, and I bet--I did not ask Jon about this but I bet you
Jon does too. If you need us every once in a while to come over
there and reinforce why we did what we did, or explain why we
did what we did, good communication between us and the rank and
file members of the VA, through your conduit of your job as
professional liaison, can help us avoid some problems.
So, I offer that to you as a suggestion, and I will be
willing to keep my word and come if you call me to do so.
Senator Tester?
Senator Tester. Thank you, Chairman Isakson, and
absolutely, communication is critical and we are here to help
on that. I think that is really the bottom line.
I am going to ask you a few very short questions that you
could answer with yes or no, or a very short statement would be
appreciated to, in this order--Mr. Bowman, Mr. Byrne, Mr.
Tucker. There are reports that the administration has ordered
agencies not to provide responses to Democrats' information
requests. The question is, do you believe the VA has an
obligation to be responsive to congressional oversight?
Mr. Tucker. I can answer that initially. In the 5 months
that I have been in working at the VA, the Secretary's guidance
has been exactly to respond without any consideration of the
party affiliation of the member communicating with us.
Senator Tester. OK. Tom?
Mr. Bowman. Sir, there is an obligation on the part of the
Department to always answer what may be questions, whether oral
or written, and the reason is it is the only way that I believe
committees can conduct effective oversight is with accurate
information.
Senator Tester. Mr. Byrne?
Mr. Byrne. Yes, sir.
Senator Tester. Thank you all. If you are confirmed you
would be respond to the inquiries, whether it is from a
Democrat, independent, Republican, or other?
Mr. Tucker. Yes.
Senator Tester. Yes?
Mr. Bowman. Yes, sir.
Senator Tester. Yes.
Mr. Byrne. Yes, sir.
Senator Tester. Yes. Just one other thing I just want to
add. I have been in this body for a little over 10 years now
and about 10 years ago I got invited to be on a news show. I
went on and I did not answer any of the questions, and I did it
intentionally. I do not know why, but I talked in circles. The
minute I got off that show one of my mentors called me up and
said, ``What the hell are you doing? That will not raise your
prominency one inch by doing that kind of stuff.'' He was
right, and I have never been on that show since, by the way,
never been asked back.
The reason I bring this story up is because oftentimes we
ask questions--and I am not pointing to you guys--but we do not
get answers. We get folks talking in circles. So, when the
questions are asked and you write the letter back, read the
letter and say--ask yourself, does this actually answer the
questions that these guys have asked? If you can do that you
could be very effective. Thank you.
Tom, first of all I just want to say this. Conventional
marriage vows are until death do we part, and I think that you
have lived up to those by your story. I did not know that
transpired with your wife, but I think the fact that you were
the caregiver, the primary caregiver her last 7 months speaks
to your character. Plus, I think it speaks to you, as a person,
which I think is important, regardless of political views.
Moving forward, I think that speaks well of you and I am very--
you have my admiration. Let us put it that way.
A couple of weeks ago you said that most requests for
information should be done within 2 weeks. What specifically
can each of you do in this role to remove the layers of red
tape that come between the request for information and a VA
response?
Mr. Tucker. Senator, one of the things I think that we need
to do internally, and if confirmed I want to try to foster this
kind of dialog, would be the administration under secretaries
find a way to look at where all the sticky gates are----
Senator Tester. Yep.
Mr. Tucker [continuing]. In the process, and figure out
where they are and see if we can unstuck them or remove them if
they are extraneous or just problematic. So, I think from that
perspective, looking at how we function internally, getting
information to the Congress, needs a wire brush to it and see
what we can do.
Senator Tester. OK.
Mr. Bowman. Sir, I think the important thing is that when
the Department receives the request, whether oral or in
writing, getting it to the right level, the right people, the
right office in the Department as quickly as possible. My
experience, both within the VA and then over here, is that many
times the answer is already there. It just needs to be pulled
together very quickly.
Senator Tester. OK.
Mr. Byrne. Sir, if I am confirmed I will inquire about OGC,
whether we are the problem or not----
Senator Tester. OK.
Mr. Byrne [continuing]. Because it is possible that there
could be a particular organization that is holding things up,
and if that is the case I will remedy that.
Senator Tester. Good. This is a question for you, Tom.
Based on your last experience at the VA as well as your
knowledge of what expectations are here in Congress for senior
leaders, what do you think is the right mix of Central Ops'
oversight and VISN or local facility autonomy?
Mr. Bowman. I believe that my experience, and from what I
have picked up having worked over here, is that currently there
is a disconnect between the field and the VA Headquarters. Not
purposeful, but I think there is a disconnect. I mentioned it
kind of briefly in my statement that many times the VISN
director sets the policy for those medical centers that are
within, you know, his VISN or her VISN, and then they only--the
medical centers only pay attention to what the VISN director
says, not necessarily what they are aware of as the policy.
When you deal with that number of VISNs across the country you
have inconsistent approaches to providing information back to
the VA Headquarters for oversight.
I really believe that that needs to be looked at and looked
at seriously. I am not disparaging the performance, necessary,
of VISN directors because I am not in a position to have looked
at it--to look at it, but I know it because I have talked to
people who work within the medical centers, and things that you
would assume are understood down at that level, they are not
even aware of it, because it has not gotten down. So, I think
the disconnect needs to be addressed.
Senator Tester. OK. Thank you. Thank you, Mr. Chairman.
Chairman Isakson. Senator Hirono.
HON. MAZIE K. HIRONO, U.S. SENATOR FROM HAWAII
Senator Hirono. Thank you, Mr. Chairman. Mr. Byrne, the
VA's Office of General Counsel provides conclusive
interpretations of legal matters for the Department and assists
in the drafting and implementation of relevant legislation.
Last December, President Obama signed into law, as part of the
Veterans Omnibus Bill, that included my bill, to improve staff
recruitment and retention by allowing VA doctors to work
flexible hours, like the private sector.
I understand the VA has not yet implemented this provision
and has created a workgroup which includes OGC to develop a
policy needed to implement this new legislation, and if
confirmed can I count on your commitment to ensure OGC
prioritizes this issue to swiftly implement this law, given the
tens of thousands of vacancies in Hawaii and across the VA
system?
Mr. Byrne. Yes, ma'am. Thank you for bringing it to my
attention. I was not aware. Thank you. I will.
Senator Hirono. So, now that you are aware, it is going to
rise to the top of your list of priorities----
Mr. Byrne. Yes, ma'am.
Senator Hirono [continuing]. To pay attention to, because
you will hear from my office. Thank you very much.
I think it is important because I certainly--I visit our VA
facilities all across our State, and retention--the need for
more hospital personnel, et cetera, is really critical, and to
keep them. If we can buy this kind of legislation, enable them
to work within our system, I think that is what we ought to be
doing.
Homelessness, Mr. Bowman. As Deputy Secretary you will be
involved with managing over $1 billion in funding to assist
homeless veterans and their families, and the VA Director,
former Director was going to eliminate homelessness in veterans
100 percent, and, of course, was a noteworthy effort, but we
are not there yet. What are your thoughts on ways we can
continue the progress we have made in reducing veteran
homelessness? We have had a 47 percent decline since 2010, and
to improve the transition process to prevent homelessness to
begin with. Any thoughts?
Mr. Bowman. Senator, I think that the efforts that have
gone on thus far have put into place an adequate, probably
better than adequate structure within which to utilize the
funds that are made available, interact with the community. I
think that to bring veteran homelessness down further, first,
there has to be a stronger coordination with the community,
because when the veteran is homeless they are out in the
community. When I was in Florida in VISN 8, there was a strong
effort to make sure that you engaged heavily there.
The other is to identify, as early as you can, based upon,
let us say, hospital visits, outreach, those veterans and
veterans with children that are experiencing problems, either
keeping their house, paying the rent, confronting problems
relative to kids being absent from school because they are
moving around. I think that type of approach will go a long way
in further reducing that number, because I believe the numbers
of young veterans with families are on the increase, and we
have to be more innovative in how we approach and identify and
address that.
Senator Hirono. So, in terms of identifying those veterans
who may be on the brink of homelessness, do you have enough
resources for that kind of outreach efforts on your part, or
whatever way that you would go about identifying those folks
who may be potentially homeless?
Mr. Bowman. Not having been on the development side of the
budget for the VA, I do believe that there probably is an
existing outreach and social work structure within the VA that
coordinates outside of VA. I think much can be picked up in the
visits and the dialog that takes place when a veteran visits
for a medical appointment, because they are going to talk about
their problems. When, you know, an experienced counselor hears
certain trigger words, they go, ``Well, wait a minute. Maybe
there is something going on here.'' Then, if they can have an
enhanced dialog I think that is a way of being able to identify
somebody that is approaching the brink, may be on the brink,
and VA maybe able to intervene and help address the problem.
Senator Hirono. That kind of approach has to become
institutionalized within the VA, so it is not catch as catch
can that you may have a social worker or somebody who hears
something and then they decide for themselves there should be a
protocol, I would think. Do you know if there is such a
protocol?
Mr. Bowman. I believe there is. I believe there is.
Senator Hirono. When you mentioned the issue of
homelessness among veterans, that it involves the whole
community, I think that is very good because I think some of
the programs involve mayors, for example, to be part of the
housing first for veterans, so please keep that going.
Thank you, Mr. Chairman.
Chairman Isakson. Thank you, Senator Hirono.
Senator Tester.
Senator Tester. Yes. I do not know that anyone was happy
with the way the Choice fund shortfall came to light. I
certainly think that the VA could have handled it much better
in the weeks and days following the revelation.
Tom, you have been at the VA and you have worked here.
Could you try to explain to me where the disconnect is between
monitoring the fund and alerting leadership to this issue? If
you can tell me where that disconnect is, can you tell me how
you might have handled it differently, if you had been there?
Mr. Bowman. Well, Senator, I think the beginning point is
you have in place individuals in the financial management area
that are monitoring the expenditure of these funds. Now, I
cannot tell you all of the manner, means, or methods that are
in place, but all of them have a focus on if there is a certain
amount of funds that are supposed to be being expended for a
particular purpose then you have junctures and set points as
you begin to monitor it.
Now, either there was a miscalculation on the part of
somebody who was responsible for monitoring, or it was being
monitored but nobody considered the fact that the burn rate may
have been increased and thus, when it is increased, it is going
to impact the ultimate end date and then create that follow-on
problem.
Senator Tester. Right.
Mr. Bowman. I think that there could have been a greater
sense of attention to monitoring with the expectation of these
funds are going to run out if the burn rate goes up, in support
of veterans.
Senator Tester. Right. Right.
Mr. Bowman. Then, when you know that, you alert your
seniors up the line, because this was a well-known, critical
issue conveyed to Congress----
Senator Tester. Yep.
Mr. Bowman [continuing]. And I was on the staff, and one of
the understandings was that we were going to have funds that
were going to last at through December----
Senator Tester. That is right.
Mr. Bowman [continuing]. Possibly even into January. So,
the Congress operated under an understanding that the funds
were there----
Senator Tester. Yep.
Mr. Bowman [continuing]. Then, when it became known, there
was an answer. If it became known then it became known in
actuality earlier, that they had time to develop an answer.
Senator Tester. Yeah.
Mr. Bowman. When something like that becomes aware, I
believe a heads-up should have been provided to the Congress
for them to be able to consider, along with the Secretary's
input, how you are going to address it.
Senator Tester. Right. Right. OK.
Mr. Byrne--that is good. Mr. Byrne--and I will give you
some dates here--but by law Congress is required to be notified
within 30 days after 75 percent of the Choice fund was
exhausted--notified 30 days after 75 percent was exhausted. On
June 7, we began hearing from the field that there was a
problem with the money running out. Later the same day we heard
from the VA that there was less than $1 billion left. On
June 30, 3 weeks later, basically, I received a legal
notification that 75 percent of the fund was exhausted, and
that probably happened back in April, quite frankly. And
throughout June, VA sent a series of contradictory instructions
to the field, which further confused everybody, from veterans
to doctors to VA to TPA staff.
So, Mr. Byrne, do you anticipate being involved in making
sure that the VA would be meeting the letter of the law, even
when it is something as mundane as reporting to Congress?
Mr. Byrne. Yes, sir. I can imagine being involved in that,
not only in my role as the chief legal officer for the
organization but also on the senior staff, being aware and
asking those types of sort of common-sense leadership
questions.
Senator Tester. OK. As many, if not all of you know, I did
not serve. Most folks on this Committee have heard me say we
need to take our cues from our vets, and I solidly believe
that, whether back home in Montana or whether it is out here in
D.C., with those individuals who are back here in D.C., with
those individuals who represent, really, the millions of
veterans across this country. I really think it is important to
listen to our veterans. I value what they have to say.
Tom, starting with you, do you believe the VA should be
taking its cues from the VSOs and the veterans that they
represent?
Mr. Bowman. Yes, I do.
Senator Tester. That is good enough for me. Could you talk
to me about how you will keep your ear to the ground on what
veterans nationwide are saying, and specifically how you will
work with the veterans service organizations (VSOs) to
basically better understand those needs?
Mr. Bowman. I think that there has been a pattern and
practice not only during the period of time that I served in
the VA earlier----
Senator Tester. Yeah.
Mr. Bowman [continuing]. But, since then, and that is to
meet with the veteran service organizations here at the
headquarters level frequently, and I think the Secretary does
that, and it would be my intention to do it.
Senator Tester. OK. Good.
Mr. Bowman. But beyond that is during trips into the field,
it is very important for whoever the VA official is, when they
go to visit a site----
Senator Tester. Yep.
Mr. Bowman [continuing]. Is that they also visit the--or
have the opportunity to interact with the veteran service
organizations at that particular site----
Senator Tester. Yes, sir.
Mr. Bowman [continuing]. As well as the families of
veterans there, which I think is something that does not happen
that often. They do meet with veterans and veteran
organizations representatives, but I think there needs to be an
effort to gather in families so they can talk about, candidly,
what they believe to be issues that their veteran loved one is
not conveying.
Senator Tester. Mr. Tucker, do you believe we should listen
to the VSOs and the veterans they represent?
Mr. Tucker. I think it is invaluable advice, Senator.
Senator Tester. OK. Do you have any ideas on how we could--
over and above what Tom said--better bring them in for input?
Mr. Tucker. I think we need to expand the aperture of who
we are talking to also, because there are growing and different
groups out there who represent different perspectives on the
same problems. I think that you have got some--more of the
post-9/11 veterans groups that are populated differently than
the pre-9/11. So, I think that those folks need to be inclusive
more, and I think the Secretary wants to do that.
Senator Tester. OK. Mr. Byrne, do you feel that the
veterans, we should be listening to them?
Mr. Byrne. Yes, sir, I do, and I agree with everything that
the gentlemen just stated.
Senator Tester. OK. Very good. Thank you, Mr. Chairman.
Chairman Isakson. Can I answer that question?
Senator Tester. Yes, you can.
Chairman Isakson. I definitely think we ought to listen to
the VSOs. I hope they will listen closely to all of us, too. We
are a team, just like your testimony, your statement, Mr.
Byrne. We are in this thing together. It is bigger than all of
us. It is very important that we take our leadership, as Jon
said, from our veterans and those that did serve. I served. I
know all of you are Marine Corps veterans. Correct? All
Marines? Naval Academy but Marine Corps.
Mr. Byrne. Yes, sir.
Mr. Bowman. Yes.
Mr. Tucker. Yes.
Chairman Isakson. It is important that we listen to them
but it is also important for them to listen to us, and that we
develop this team spirit, whether we are in the Marines or Air
Force or whatever it might have been. It is in the best
interest of the Veterans Administration.
I appreciate Senator Tester bringing up the Choice issue,
and with that I will just make an editorial comment, if I can.
Jon and I have been working very hard to get Choice
finished in this session of Congress. We have gotten very close
a couple of times to a bill to fully fund Choice for the
remainder of the fiscal year, make some other changes within
the system, and not have to worry about it again. But, Jon is
correct--the fact that there are so many buckets in the VA. We
have had manufactured crises of running out of money when, in
fact, we really were not running out of money at all. We just
run out of money in one bucket. That is not the way to run a
railroad. I ran a pretty big company and that would have run us
to the bank in a hurry.
So, one of the things that Jon is going to look for, and I
am going to look for, are good, solid communications in one
bucket, and if we have a crisis it needs to be a real crisis,
not one manufactured for the purpose of making us think we had
to act quickly to do something we really did not have to do.
Did I say that clearly?
Senator Tester. You did.
Chairman Isakson. So, that was not a question. That was a
definitive statement, and I will let that rest.
With that said, any other questions, Jon?
Senator Tester. None.
Chairman Isakson. Let me thank all of you. Congratulations
on your nomination. I do not want you to think the ratification
of your nomination is going to be a slam-dunk, but I will tell
you, if Jon does his job and I do mine, and we have a majority
of the Committee present for a quorum on the floor of the
Senate tomorrow, on the first vote, then we will hold your
markup tomorrow and you know your fate quickly, because we want
you deployed quickly, in the field quickly, and we want to be
there to support all of you.
Thank you for your service to the country. Thank you for
your willingness to serve the country. Thank you for coming and
for your testimony today. We wish you the very best of luck.
Now I call Panel II forward. [Pause.]
We have Panel II present and I will introduce the panel at
this time. These are all nominees to the U.S. Court of Appeals
for Veterans Claims, which is a tremendous responsibility and a
tremendous job.
The three nominees testifying today are Michael Allen, of
Florida, to be a Judge of the U.S. Court of Appeals for
Veterans Claims; Amanda Meredith, who is no stranger to any of
us on the Committee, to be a member of the Court of Appeals for
Veterans Claims; and Joseph Toth, of Wisconsin, to be a Judge
of the U.S. Court of Appeals for Veterans Claims.
Would you all please rise. Would you raise your right hand
and repeat after me. Do you solemnly swear or affirm that the
testimony you are about to give before this Committee of
Veterans' Affairs will be the truth, the whole truth, and
nothing but the truth, so help you God?
Mr. Allen. I do.
Ms. Meredith. I do.
Mr. Toth. I do.
Chairman Isakson. Thank you. You may be seated.
This is a really important--you are to be commended on your
selection for this nomination. This is a tremendous honor for
you to do it and of tremendous importance to our veterans. As
Amanda knows, by being on the Committee staff, we have been
working hard on appeals, to make sure that appeals are less in
their volume, more quickly responded to in timing, and veterans
get the service they need from the Court and from the VA in a
timely fashion. I think all three of you--I have met with all
three of you at the White House, and have met with you since
then, independently. We thank you for accepting the
responsibility of being nominated and we wish you the very best
of luck and stand here to be supportive of everything that you
are trying to do.
With that said, we will start the testimony. Mr. Allen, I
will call on you first, for up to five minutes.
STATEMENT OF MICHAEL P. ALLEN, NOMINATED TO BE A JUDGE OF THE
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
Mr. Allen. Thank you, Chairman Isakson, Ranking Member
Tester, and Members of the Committee. I am honored to have been
nominated by the President to be a Judge of the U.S. Court of
Appeals for Veterans Claims.
First I want to thank the Committee and its staff for the
way in which you have treated this nomination, and I also want
to thank the White House Counsel's Office, and, in particular,
Associate Counsel Rob Luther for their help in this process.
I also want to start out by thanking some people who have
been instrumental in my life. My wife, Debbie, and my sons, Ben
and Noah, mean everything to me. I love them more than they can
imagine. They could not be here today because of a family
obligation but they are here in spirit. I am also grateful for
the support of my in-laws, Bob and Judy, my sister, Mary, and
her family, my brother-in-law, Bob, and his family. Both my
parents and my other sister, Michelle, have passed away, but I
wanted to recognize them too.
I have to acknowledge the thousands of students I have
taught at Stetson University College of Law. I can assure you
that they have given me far more than I ever taught them. And
finally, I want to thank my best friend, Jason Stearns, who is
a veteran of the U.S. Navy. He is here today. He has always
been there for me, and through his example I have learned a
great deal about living with integrity. So, thank you, Jason.
Prior to 1988, veterans who believed that they were
wrongfully denied benefits by the VA had no recourse. Those
veterans had to rely solely on the VA to get it right with no
judicial oversight, and the Supreme Court called this the era
of the VA's splendid isolation. That era of splendid isolation
came to an end when Congress passed, and President Reagan
signed into law the Veterans Judicial Review Act of 1988, and
that provided for judicial review of VA decisions for the first
time before a new Federal Court, the Court of Appeals for
Veterans Claims.
The judges of that court faced an awesome task. They not
only had to create law where none existed but they actually had
to create an institution. As the court approaches its 30th
anniversary, it is important to recognize what the men and
women who served on that court did. I think we owe them a debt
of gratitude.
Now I firmly believe that the introduction of judicial
review has been a success, but there is much work still to be
done. As this Committee knows, all too well, there are serious
challenges facing the VA veterans benefit system. The system is
staggering under the weight of more than 1.5 million
applications for benefits coming in the door every year, and
there is a large backlog of appeals, as you suggested, Mr.
Chairman, with veterans facing delays of years to have those
appeals adjudicated at the agency. This Committee has recently
considered that very issue and no doubt Congress and the
Department will continue to do so.
But, I believe the court will also play a pivotal role in
addressing these systemic challenges. At the same time, of
course, the court has to be cognizant of the need to resolve
individual veterans' appeals fairly and expeditiously. As I
said, there is a lot of work to be done and I am, quite
frankly, excited to get to doing it.
I believe I can make a meaningful contribution to the
court. I graduated from Columbia Law School 25 years ago, I
spent 9 years in private practice in Boston, Massachusetts, and
since 2001, I have been a professor of law at Stetson in
Florida. I came to veterans' law accidentally. I spoke at the
2005 Judicial Conference of the Court and I was asked to speak
precisely because I knew nothing about veterans' law and was an
expert in the Federal court system. But I have to tell you, I
got hooked at that first conference, and for the last 12 years
I have spent my professional life focusing on veterans' law. I
have spoken across the country and written widely in the field.
I have testified before this Committee in the past, as well as
its House counterpart, and the result of all of this is that I
firmly believe that I am the right person at the right time to
fill one of these vacancies.
It will be the highlight of my career, should I be
confirmed, and take a seat on the Court of Appeals for Veterans
Claims. I can promise you that I will strive every day that I
am a judge to deliver equal justice under the law to everyone
who appears before me.
In March 1865, only a few hundred yards from where we are
sitting right at this moment, President Lincoln gave, as Mr.
Bowman said, his famous Second Inaugural Address, and only a
few weeks before he would be assassinated the President rallied
the country to come together and bind its wounds, and
specifically called on the Nation to care for him who borne the
battle and his widow and his orphan.
By becoming a judge on this court, I will be able to carry
out President Lincoln's exhortation on a daily basis, and,
quite frankly, I cannot think of a better way to spend one's
career.
So, thank you very much, Mr. Chairman, for considering the
nomination.
[The prepared statement of Mr. Allen follows:]
Prepared Statement of Michael P. Allen, Nominee to be Judge,
U.S. Court of Appeals for Veterans Claims
Thank you Chairman Isakson, Ranking Member Tester, and
distinguished Members of the Committee. I am honored to have been
nominated by the President of the United States to serve as a Judge on
the United States Court of Appeals for Veterans Claims. I want to begin
by thanking this Committee and its excellent staff for the work done in
connection with my nomination. And I too want to thank the White House
Counsel's Office, and in particular Associate Counsel Rob Luther, for
the guidance provided in connection with this process. It most
certainly has been an adventure.
Before moving to substance, I must thank some people who have been
instrumental in my life. My wife Debbie and my sons Ben and Noah mean
everything to me. They have stood by me through good times and bad. I
thank them for everything and love them a great deal. My life would not
be the same without them in it. I'm also grateful for the support of my
in-laws Bob and Judy Brown, my sister Mary and her family, and my
brother-in-law Bob Brown and his family. Both my parents have passed
away, but I thank them for bringing me up and hope--and believe--that
they would be proud of me today. I also want to acknowledge the
thousands of students I have interacted with at Stetson University
College of Law over the past sixteen years. They have given me far more
than I ever taught them. And finally, I thank my best friend Jason
Stearns, a veteran of the United States Navy, who has always been there
for me. Through his example, I've learned a great deal about living
your life with integrity and what it really means to always stand
shoulder to shoulder with a friend no matter what.
Prior to 1988, veterans who believed they had been wrongfully
denied benefits by the then-Veterans Administration had no recourse.
Unlike almost any other class of people in our country, veterans had to
rely solely on the VA to ``get it right'' with essentially no judicial
oversight. The Supreme Court described this period as one of the VA's
``splendid isolation.''
The era of ``splendid isolation'' came to an end when Congress
enacted the Veterans Judicial Review Act of 1988. That Act provided for
judicial review of VA decisions--now decisions of the Department of
Veterans Affairs--for the first time. That review would be conducted by
a new Federal court, the Court of Appeals for Veterans Claims. The
original judges of the court faced a truly awesome task. They not only
had to create law where none had existed before, they also had to build
an institution. As the court approaches its 30th anniversary, it is
worth stopping for a moment to recognize what has been accomplished
since the VJRA became law by the men and women who have served on the
court. We truly owe them a debt of gratitude.
I firmly believe that the creation of the court and the
introduction of judicial review has been a success. Nevertheless, there
is much work still to be done as the court enters its next phase. As
the Members of this Committee know all too well, there are serious
challenges facing the veterans' benefits system. The system is
staggering under the weight of more than a million and a half
applications for benefits coming in the door each year. There is also a
large backlog of appeals in the Department and veterans are facing
delays of years to have their appeals adjudicated at the agency. This
Committee has recently considered this very issue and, no doubt,
Congress and the Department will continue to do so. But I believe the
court will also play a pivotal role in addressing these systemic
challenges. At the same time, of course, the court will also need to be
cognizant of the need to resolve individual veteran's appeals fairly
and expeditiously. As I said, there is much work to be done. I confess
that I'm very excited to get to be a part of addressing these issues.
I believe that I have the experience to make a meaningful
contribution to the court's efforts and am well-suited to hit the
ground running. I graduated from Columbia Law School 25 years ago.
After law school, I spent nine years in private practice at the
international law firm Ropes & Gray based in Boston, Massachusetts.
Since 2001, I have been a Professor of Law at Stetson University
College of Law in Tampa Bay, Florida teaching Constitutional Law,
Remedies, Complex Litigation, Civil Procedure, and Federal Courts.
Like many things in life that turn out to shape us, I came to
veterans law accidentally. I was asked to speak to the judicial
conference of the United States Court of Appeals for Veterans Claims in
2006. I knew nothing about this area of law and, in fact, was asked to
speak precisely for that reason. The court wanted an expert in the
Federal court system to look at veterans law without the baggage of
being immersed in the existing system. Quite simply, I was hooked after
that introduction to veterans law.
After speaking at that judicial conference, I spent the next nearly
12 years focusing on veterans law and, in particular, the Court of
Appeals for Veterans Claims. In that time, I have spoken to groups
across the country about veterans law, presented at more judicial
conferences of the Court of Appeals for Veterans Claims and the United
States Court of Appeals for the Federal Circuit, become the Director of
the Veterans Law Institute at Stetson University, written numerous law
review articles about veterans law, and testified before this Committee
as well as its counterpart in the House of Representatives. It's
embarrassing for me to say this because I don't particularly like
talking about myself, but I ended up becoming a national expert on the
law of veterans' benefits. The result of all of this is that I firmly
believe that I am the right person at the right time to fill one of the
vacancies on the court.
I wish to end in many respects where I began. Thank you all for
considering my nomination to this incredibly important court. It will
be the highlight of my career should I be confirmed and take a seat on
the Court of Appeals for Veterans Claims. I can promise you that I will
strive every day that I am a judge to deliver justice under the law to
everyone who comes before me.
In March 1865, only a few hundred yards from where this hearing is
being held, President Lincoln gave his famous Second Inaugural Address.
Only a few weeks before he would be assassinated, President Lincoln
called on the country to come together and bind its wounds. He then
called on the Nation to ``care for him who has borne the battle and his
widow and his orphan.'' By becoming a judge on this court, I will be
able to carry out President Lincoln's exhortation on a daily basis. I
can't think of a better way to devote my professional energies.
Thank you again Mr. Chairman. I would be pleased to answer any
questions that you or other Members have about my nomination.
______
[The Committee questionnaire for Presidential nominees
follows:]
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APPENDIX C--Michael P. Allen Media Appearances
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[Committee non-confidential supplemental questionnaire
follows:]
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[A letter from the Judicial Conference of the United States
Committee on Financial Disclosure follows:]
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Response to Prehearing Questions Submitted by Hon. Johnny Isakson to
Michael P. Allen, Nominee for Judge, U.S. Court of Appeals for Veterans
Claims
Chairman Isakson, First thank you and your staff for the manner in
which you have considered my pending nomination to serve as a Judge on
the United States Court of Appeals for Veterans Claims. It is a
singular honor for me to have received this nomination. If I am
confirmed, I very much look forward to serving in this important role.
I have provided below the answers to the questions you have asked. If
you would like further information, please let me know.
Respectfully,
Michael P. Allen.
Question 1. The United States Court of Appeals for Veterans Claims
generally hears appeals from claimants seeking benefits from VA. How
has your background equipped you to serve as an appellate judge?
Response. I have been in the legal profession for over twenty-five
years. During that time, I spent nine years as an advocate at a large
law firm and sixteen years as a law professor. My combined experiences
in these roles have allowed me to develop skills that equip me to serve
as an appellate judge. I describe four important examples below.
First, I have been able to hone my skills as a writer. An appellate
judge has an important duty to be able to convey his or her decisions
in ways that are both understandable to laypersons, particularly an
individual claimant, and also other decisionmakers who must follow the
law as articulated in a judicial opinion. While all judges must be
strong writers, that skill is particularly important for an appellate
judge because of the binding effect of appellate decisions in the
relevant area of law. I have written hundreds of briefs and scores of
articles and books in my time in the legal profession. That skill in
written legal communication will be important in my service as an
appellate judge should I be confirmed.
Second, in my capacity as a law professor in particular, I have
developed a deep understanding of the functioning of the Federal
judiciary. As a general matter, for example, I am the author of a
widely-adopted textbook on the Federal courts. This work caused me to
study how courts--principally at the Federal appellate level--operate.
More specifically, I have spent the last twelve years focusing my
professional activities on the operation of the United States Court of
Appeals for Veterans Claims. This work provides me with a unique
perspective on the specific institution on which I have been nominated
to serve.
Third, in my entire career I have worked with other lawyers or
lawyers in training to prepare them to appear before appellate courts.
For example, I have coached moot court teams at Stetson University
College of Law for the past sixteen years. In moot court, students
prepare written briefs and argue before panels of lawyers and judges in
mock appellate cases. Working on these educational experiences has
allowed me to guide students though the process of understanding how
one influences appellate tribunals. While this may seem trivial in some
sense, moot court has been an intense educational experience that has
the benefit of providing me with an understanding of the appellate
process that will serve me well should I be confirmed to serve as an
appellate judge on the Court of Appeals for Veterans Claims. Indeed,
one of the competitions I have coached has been the one held by the
Court of Appeals for Veterans Claims. That competition has been held
for the past eight years. I am proud to say that the teams I have
coached have won the competition four of those eight years.
Finally, my time in the legal profession, in particular my time as
a law professor, has given me a deep appreciation of the law. A judge--
and in particular an appellate judge--must love the law, both
substantively and procedurally. He or she must be energized by trying
to find the correct result within the confines of the law and facts of
a given case. My deep and sustained study of the law (procedural,
substantively, and remedial) makes me ideally suited to serve as an
appellate judge.
Question 2. Can you describe what you believe is the appropriate
temperament and traits of a judge?
Response. There are two core elements to what I believe a judge
must do, elements that effectively describe the ``temperament and
traits of a judge.'' First, a judge has to try to ``get it right.''
That means a judge must assess the facts of a given case, determine
what the law is, and then apply that law to the facts. A judge will
never get everything right because we are all human. But he or she
needs to focus their efforts on diligently trying to do so.
Second, a judge needs to consciously ensure that the litigants and
advocates appearing before him or her feel that they had a fair day in
court. Such a perception (and of course reality) of due process is
critical to maintaining a respect in an independent judiciary. A
significant component of this point is that a judge needs to listen
(and read) what the litigants and advocates submit. And even more
importantly, a judge needs to treat everyone before him or her with
respect. In some measure, appellate decisionmaking is a zero sum game;
there will be a winner or loser. The hallmark of a truly great judge is
that the ``loser'' can say they had a fair shot from a respectful
arbiter. In other words, the judge needs to be impartial but yet make
clear that he or she cares about the integrity of the process.
Question 3. What examples from your personal experiences can you
provide demonstrate that you have both the temperament and traits of a
judge?
Response. As I described above, the two main pillars by which I
assess judging are trying to obtain the correct result and making sure
that the people appearing before the judge feel that they got a fair
day in court. I provide two illustrations from my twenty-five year
career in the law that exemplify these characteristics.
First, one of the core goals of the academic enterprise is about
getting the correct result when a professor produces scholarship or
proposes policy changes. A law professor develops a thesis and writes
an article or policy proposal setting forth that thesis. Then, he or
she presents the idea to others in order to assess its validity. At
times, an idea that looks great on paper in the first instance turns
out to have flaws or gaps in reasoning. That has certainly happened to
me. Having experienced preparing an idea, presenting it, hearing
criticism, and revising it has prepared me well to be a judge. To sum
it up, it's not so important to be right at the start of the process;
what's critical is to try to be right at the end. My time in the legal
academy has been critical in this regard.
Second, my work in teaching and speaking to community groups has
shown my ability to present a fair and impartial demeanor. A key
component of fair process is that the adjudicator be impartial. In
other words, he or she should not be seen to have a preference for one
point of view or the other when the goal is to present a certain topic.
One of the courses I teach is Constitutional Law. As you might imagine,
the course raises a number of controversial issues. I am often told by
students after the course that they have no idea what I think about a
particular issue as a matter of personal preference because I am so
neutral in the class. The same thing happens with community groups. No
one knows what position I would take as, for example, a legislator.
None of this means I don't care. I care deeply about the process. But I
have been able to display a neutrality that allows me to reach many
more people than if I had been an advocate for a particular position. I
will bring this same impartiality to being a judge if I am confirmed.
Question 4. For a number of years, you have been involved with
training and mentoring law students and practitioners in the field of
veterans' law and, if you are confirmed, you may come across cases
handled by former students and practitioners.
a. Do you foresee that you might need to recuse yourself if any of
those former students and practitioners come before the Court?
Response. As a general matter, I would not foresee recusing myself
from an appeal or other matter solely because a lawyer appearing before
me had been a former student or a practitioner with whom I had dealings
before becoming a judge (should I be confirmed). Instead, I would make
such decisions on a case-by-case basis based on the factors I describe
in sub-part (b) to this question. As with all judges, I am sure that
there would be some appeal or other matter that would require me to
recuse myself, but such instances would be the exception not the rule.
And this makes sense. Most people appointed to be a judge will have
been involved in the relevant legal community. If one were to take the
position that recusal would be required if there were general
interactions with others in the relevant area, the result would be
appointment to the judicial office of those with no connections to the
area, whether that be geographic or substantive. For example, one of
the reasons that I am qualified to serve as a judge on the Court of
Appeals for Veterans Claims is that I have been deeply involved in
veterans law for the past twelve years. During that time, I have had
professional interactions with advocates representing veterans and
other claimants, Veterans Law Judges at the Board of Veterans' Appeals,
and lawyers representing the Secretary of Veterans Affairs. Those
interactions are, in part, what qualify me to serve as a judge on the
court. A blanket rule of disqualification would potentially foreclose
experts from serving as judges. It is for this reason that I would make
case-by-case recusal decision as I describe below.
b. What factors would govern your decision?
I would be guided in my recusal decisions by the principles set
forth in 28 U.S.C. Sec. 455 governing the disqualification of Federal
judges. More colloquially, I would recuse myself when the circumstances
of a given case might cause others to reasonably question my
impartiality. In a non-exclusive way, I will provide three examples of
situations in which I would recuse myself:
When a law firm representing a party had some financial
relationship with a member of my family. For example, my wife is a
lawyer at Ropes & Gray, a large law firm. That firm handles some
matters before the Court of Appeals for Veterans Claims on a pro bono
basis.
When I had participated in some way in a matter before
becoming a judge. For example, I submitted an amicus brief in a matter
(Monk v. Shulkin) that could come before the Court of Appeals on remand
from the United States Court of Appeals for the Federal Circuit.
When I have a more specific personal relationship with a
lawyer in a case than merely knowing him or her through professional
interactions. For example, if my relationship with a lawyer were more
than one that was just a friend--more akin to being a best friend--
recusal might be warranted.
Question 5. You have provided Congressional testimony and written a
number of articles on veterans' law in which you suggest changes within
the system for reviewing veterans' benefits appeals, including at the
Court. If confirmed, would you advocate for making specific changes at
the Court? If so, what would those changes be?
Response. Yes, if I am confirmed I would advocate making certain
changes in the way in which the court operates. The gravamen of the
changes I would advocate focus on three issues that are related, but
distinct: (1) the manner of decisionmaking (single judge versus panel
decisions); (2) precedential versus non-precedential decisions; and (3)
the use of oral argument. I will discuss these issues below. Before
doing so, however, I suggest one more general change at the court that
I would hope to implement. The court's opinions often appear to be
formulaic and difficult to read. Judicial opinions will never be
literature. That is perhaps even more so in a highly technical area
such as the law of veterans' benefits. However, judges should strive to
make their opinions as readable as possible. I hope to inject more
``readability'' into opinions of the court.
I now turn to the three more general points I mentioned above.
Under the court's rules and internal operating procedures,\1\ (1)
manner of decisionmaking, (2) the precedential nature of decisions, and
(3) the use of oral argument are essentially linked. I will first
explain how that is so and then turn to possible changes I would
advocate should I be confirmed.
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\1\ The court's rules and internal operating procedures can be
found at the court's website. www.uscourts.cavc.gov.
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Congress provided that the Court of Appeals for Veterans Claims
could operate in panels or en banc (as the full court) as other
appellate courts do. However, Congress also specifically provided that
the court could operate by single judge action. See 38 U.S.C.
Sec. 7254(b). Over its history, the court has been aggressive in it use
of single judge adjudication to resolve appeals. For example, in Fiscal
Year 2016 (October 1, 2015 through September 30, 2016), 1,561 appeals
\2\ reached a judge for decision.\3\ Single judges decided 1,532 of
these appeals. Stated differently, the court acted through single
judges more than 98% of the time.
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\2\ I have limited this analysis to appeals. It does not include
other matters such a petitions for extraordinary relief.
\3\ A majority of appeals filed at the court do not reach a judge
for decision. For example, in FY 2016 while judges resolved 1,561
appeals, an additional 2,651 were resolved by the Clerk of Court. The
overwhelming reason for these Clerk-driven resolutions was settlement
by the parties after use of the court's mediation program.
---------------------------------------------------------------------------
What is the effect of a single judge resolution of an appeal? To be
sure, such action resolves the dispute between the claimant-appellant
and the Secretary. However, through its rules and internal operating
procedures, the court provides that the actions of single judges in
what are called Memoranda Decisions are not precedential. This means
that such decisions only apply to the case the single judge
adjudicates. They do not provide rules that are binding more generally
on the Department of Veterans Affairs in connection with its
administration of veterans' benefits. Thus, in FY 2016 while the court
disposed of 1,561 appeals through judicial action, it issued only 29
precedential decisions, that is decisions by a panel of judges.
Finally, in terms of current procedure, the court generally uses
oral argument only in matters decided by panels (or the court sitting
en banc). Oral argument is not prohibited in single-judge matters, but
the court's rules provide that ``[o]ral argument normally is not
granted on nondispositive matters or matters being decided by a single
judge.'' See Rule 34(b) of the Rules of Practice and Procedure of the
United States Court of Appeals for Veterans Claims.
In sum, the court's current procedures link the three concepts I am
discussing. A single judge disposition is one that is non-precedential
and for which oral argument will generally not be held. If I am
confirmed, I hope to be able to (a) disaggregate these three concepts
and (b) assess each one individually. I briefly note below some of my
ideas about these issues:
In my view, the court needs to issue more precedential
opinions. Whether such precedent is established in single judge
decisions or only by panels as now provided at the court is distinct
from the question of precedent standing alone. One of core components
of the establishment of judicial review of actions of the Department of
Veterans Affairs on benefits matters in the Veterans Judicial Review
Act of 1988 was to provide a legal framework by which the Department
would carry out the laws Congress enacted. This process works most
efficiently on the system as a whole if the court provides rules that
govern all cases not just the particular one before it. If I am
confirmed, one of my principal goals will be work to revise the court's
rules to provide for the issuance of more precedential opinions.
As I have described, the court's current procedures link
the precedential nature of a decision with whether the decision is made
by a panel or a single judge. There is no reason that this is
necessarily so. I hope the court will consider these matters
independently. While reasonable minds can differ on this question, my
tentative view is that there is a certain logic to the having
precedential decisions be those of the court acting in panels. When the
court is making a decision that will bind the Department's actions
across the United States and with respect to the millions of claims
filed each year, the considered deliberation of a panel of judges seems
the best approach. Thus, when one combines my first point with this
one, after independently assessing each variable, my current position
is that the court should hear many more cases in panels in order to
provide for an increased number of precedential decisions.
- A comparative note may be helpful in terms of explaining
why the court's decisions on these matters are so difficult. In
the context of Social Security, a denied claimant also has the
right to judicial review. However, judicial review in the
Social Security context is quite different than in the context
of veterans' benefits. A Social Security claimant files his or
her appeal initially in a United States District Court.
Thereafter, the parties can appeal the District Court's
decision to the regional United States Circuit Court of
Appeals. The result of this approach is that one body--the
District Courts--act merely on one case at a time. They can be
error correctors. There is a separate body--the regional
Circuit Court of Appeals--that can act more broadly on appeals
that reach it in order to establish binding precedential rules
in its geographic region. In some senses, the structure of
judicial review in the veterans' benefits context combines the
functions of the District Courts and regional Circuit Courts of
Appeals in the Social Security arena. The Court of Appeals for
Veterans Claims essentially needs to find a balance between
being an error corrector (what it does now in the single judge
decisions) and the provider of binding, broader legal
precedent.\4\
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\4\ It is possible for a party to appeal a decision of the Court of
Appeals for Veterans Claims to the United States Court of Appeals for
the Federal Circuit. However, such an appeal is limited by statute to
pure questions of law. Outside of an appeal presenting a constitutional
question, the Federal Circuit's jurisdiction does not extend to appeals
focused on factual matters or to the application of law to fact. See 38
U.S.C. Sec. 7292(d)(2). The result of this jurisdictional limitation is
that the Court of Appeals for Veterans Claims is the final
decisionmaker in the great majority of situations. For example, in
Fiscal Year 2016 there were 4,140 appeals filed at the Court of Appeals
for Veterans Claims. In that same period, there were 104 appeals filed
at the Federal Circuit from decisions rendered by the Court of Appeals
for Veterans Claims. And even that relatively small number is deceptive
because a large portion of these appeals to the Federal Circuit were
dismissed for lack of jurisdiction under 38 U.S.C. Sec. 7292(d)(2).
Finally, there is the question of oral argument. As
described above, the court currently generally holds oral argument only
in panel (or en banc) matters and because the court hears so few cases
in panels there are correspondingly few oral arguments. Regardless of
how the other matters are addressed, I believe the court should hold
more oral arguments. In my view, oral argument has two principal
positive attributes. First, it is important as a means to reach better
decisions. Briefs are incredibly important, but they are snapshots of
the parties' positions. Oral argument allows a judge to explore and
probe the matters at issue in real time in a way that merely relying on
the briefs does not. Second, I believe oral argument has an important
public purpose. The general public should have the opportunity to see
how justice is being delivered. Oral argument provides that
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opportunity.
______
Response to Prehearing Questions Submitted by Hon. Jon Tester to
Michael P. Allen, Nominee for Judge, U.S. Court of Appeals for Veterans
Claims
Ranking Member Tester, First thank you and your staff for the
manner in which you have considered my pending nomination to serve as a
Judge on the United States Court of Appeals for Veterans Claims. It is
a singular honor for me to have received this nomination. If I am
confirmed, I very much look forward to serving in this important role.
I have provided below the answers to the questions you have asked. If
you would like further information, please let me know.
Respectfully,
Michael P. Allen
Question 1. In describing the many factors that affect the delays
veterans experience in receiving the benefits for which they apply, you
noted in a 2015 essay that ``it requires a great many people to review
millions of claims for benefits submitted each year.'' However, you did
not highlight a lack of resources as one of the fundamental causes of
delay in the appeals process.
a. From your perspective, do VBA and the Board have the resources
they need to address the volume of claims and appeals handled during
the administrative phase of the process? Why or why not?
Response. There is no question that the provision of appropriate
resources is a critical part of ensuring that any system for the review
of veterans' claims can process claims expeditiously. The purpose of my
2015 essay was to highlight reasons for administrative delay that went
beyond the more traditional points concerning resources and general
bureaucratic inefficiency. That explains in some sense why I did not
address the resource question at the Board and the Veterans Benefits
Administration. Another reason is that I did not--and do not--have the
depth of knowledge to make a meaningful assessment of the level of
resources provided to these components of the Department of Veterans
Affairs. At the Board level, I am aware that Congress recently provided
for an increase in the number of Veterans Law Judges on the Board. In
addition, there was a corresponding increase in authorized staff
attorneys to assist Board members in issuing decisions. While I do not
know this for certain, I suspect that the Board is evaluating whether
this increase in staffing is sufficient. I have very little information
concerning resource issues at the VBA.
My sense is that actions going beyond resource allocation,
important as that issue is, are ultimately more significant in terms of
addressing the delays in the administrative appeal process. For
example, the Appeals Modernization Act recently voted on by this
Committee are likely to have more significant implications for reducing
delays in the long term than merely focusing on resources.
b. What do you believe is a reasonable timeframe for the court to
make a decision?
Response. Let me begin by stating that I don't believe that there
is single timeframe that one can say applies to all judicial decisions
at the Court of Appeals for Veterans Claims. The time to disposition is
affected by numerous factors ranging from the staffing of the court to
the complexity of the issues presented by appeal to the actions of the
advocates. That being said, it is possible to make generalities about
the timeframe for judicial decisions.
Some statistics for current resolution of appeals at the court may
be instructive as a place to begin. In assessing the time for
resolution, it is important to consider the baseline for measuring
resolution. One method is to simply measure the time from the filing of
an appeal up to the time the matter is resolved by a judge. However,
that metric may not be the most useful one in terms of assessing the
efficiency of judicial action. The reason is that an appeal \1\ is only
assigned to a judge after it has been fully briefed. There are numerous
steps that take place before assignment of an appeal to a judge. For
example, most appeals proceed through a mediation process with court
staff that resolves more than 50% of appeals filed with the court.
Thus, the most useful measure for assessing the timeliness of decisions
from a judge's perspective is by measuring the time to decision from
assignment to a judge for resolution when all other activities
(settlement, briefing, record disputes, etc.) have been concluded.
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\1\ I am focusing on appeals in this answer and have not addressed
other matters such as petitions for extraordinary relief.
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In Fiscal Year 2016 (October 1, 2015-September 30, 2016) the median
time for disposition by a single judge issuing a Memorandum Decision
from assignment to chambers was 59 days, about two months. When the
court acted as a panel (or when it was sitting en banc), the median
time for disposition from assignment of a case to chambers was 155
days, or slightly more than five months.
I believe that the current time for resolution at the court I've
described above for FY 2016, is generally appropriate in terms of
median times for resolution. I should add that one needs to be careful
in assessing this data not to focus too greatly on the longer time for
multi-judge resolution when compared to single judge action. It is not
surprising that a multi-judge decision will take longer. A single
person acting alone can produce a product faster than three people
deciding a case because the three people need to agree not just on an
outcome but also a rationale. Moreover, concurring and dissenting
opinions add time. But (and as I discuss below in response to Question
#3) under current court rules single judge decisions are not
precedential. Therefore, while a single judge decision is faster than
the panel production process, only the panel decision will be
precedential. If one believes the court should issue more precedential
opinions (as I do), the effect will be that the appropriate median time
for disposition will be longer.
Question 2. You wrote in a 2009 essay that the Department of
Veterans Affairs does not appropriately recognize and appreciate the
independent adjudicative role of the Court of Appeals for Veterans
Claims, even after 20 years of its existence. Can you please describe
your view of the current relationship between the Department and the
Court of Appeals for Veterans Claims? If similar tensions still exist,
how would you propose to help relieve those tensions in your role on
the court?
Response. I believe that the relationship between the Department of
Veterans Affairs and the Court of Appeals for Veterans Claims has
improved significantly since I wrote my essay in 2009. That essay was
written in connection with the court's 20th anniversary. That means
that the Department had only been out of its ``splendid isolation''
(the term the Supreme Court has used to describe the period prior to
the creation of the court) for a relatively short time. There were many
growing pains as the Department and the court learned to work together.
Quite frankly, it took the Department some time to fully appreciate
that the court was not simply providing general guidance but rather
issuing binding decisions that needed to be followed. For example, in
certain situations the court had issued a decision that the Department
disagreed with and that had broad implications for the resolution of
benefits' claims. In those situations the Department appealed to the
United States Court of Appeals for the Federal Circuit. That was
entirely appropriate. However, in these situations the Department would
also unilaterally suspend resolving benefits claims while the appeal
was pending. That was not appropriate. As the Court of Appeals for
Veterans Claims explained, the appropriate course would be for the
Department to seek a stay from the court. See Ribaudo v. Nicholson, 21
Vet. App. 16 (2007). It was actions such as this that led me to make
the comments I did in 2009. But today, I have a very different sense of
how the Department views the court and judicial review more generally.
The relationship is becoming more and more like that between Federal
courts and other government agencies.
Question 3. In a 2009 essay, you weighed the merits and
shortcomings of various proposed changes to the Court of Appeals for
Veterans Claims, both within the existing structural system and by
making substantial changes to the system itself. What changes since
that time have improved the court's functioning for the best interests
of veterans? What changes would you advocate for now, eight years
later?
Response. Many of the potential changes I canvassed in my 2009
essay would require actions such as statutory changes that the court
could not enact. However, the court has taken a number of steps that I
believe have had a positive impact on the judicial appeals process. One
of the most significant is the implementation and refinement of a
formal mediation process for filed appeals. See Rule 33 of the Rules of
Practice and Procedure of the United States Court of Appeals for
Veterans Claims. This process is conducted by members of the court's
Central Legal Staff. It has been incredibly successful at assisting the
parties to reach negotiated resolutions of appeals without formal
judicial intervention. In addition, the court has taken other positive
steps:
The court has begun to more creatively use the services of
its Senior Judges to process appeals and other matters. As the number
of Senior Judges grows, the opportunities for even greater use of these
judicial officers will be present.
The court has aggressively reached out to law schools
across the United States to introduce law students (and faculty
members) to veterans law. These actions are critically important for
the future. Veterans and other claimants need the services of lawyers.
By spreading the word, so to speak, the court is paving the way for the
future.
Finally, the court has continued its efforts to work with
practitioners and other constituencies to cooperatively develop
strategies for addressing problems facing the court. For example, the
court held its second Bench and Bar Conference recently that led to
important recommendations for changes in proceedings.
If I am confirmed I would advocate making certain additional
changes in the way in which the court operates. The gravamen of the
changes I would advocate focus on three issues that are related, but
distinct: (1) the manner of decisionmaking (single judge versus panel
decisions); (2) precedential versus non-precedential decisions; and (3)
the use of oral argument. I will discuss these issues below. Before
doing so, however, I suggest one more general change at the court that
I would hope to implement. The court's opinions often appear to be
formulaic and difficult to read. Judicial opinions will never be
literature. That is perhaps even more so in a highly technical area
such as the law of veterans' benefits. However, judges should strive to
make their opinions as readable as possible. I hope to inject more
``readability'' into opinions of the court.
I now turn to the three more general points I mentioned above.
Under the court's rules and internal operating procedures,\2\ (1)
manner of decisionmaking, (2) the precedential nature of decisions, and
(3) the use of oral argument are essentially linked. I will first
explain how that is so and then turn to possible changes I would
advocate should I be confirmed.
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\2\ The court's rules and internal operating procedures can be
found at the court's website. www.uscourts.cavc.gov.
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Congress provided that the Court of Appeals for Veterans Claims
could operate in panels or en banc (as the full court) as other
appellate courts do. However, Congress also specifically provided that
the court could operate by single judge action. See 38 U.S.C.
Sec. 7254(b). Over its history, the court has been aggressive in it use
of single judge adjudication to resolve appeals. For example, in Fiscal
Year 2016, 1,561 appeals \3\ reached a judge for decision.\4\ Single
judges decided 1,532 of these appeals. Stated differently, the court
acted through single judges more than 98% of the time.
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\3\ I have limited this analysis to appeals. It does not include
other matters such a petitions for extraordinary relief.
\4\ A majority of appeals filed at the court do not reach a judge
for decision. For example, in FY 2016 while judges resolved 1,561
appeals, an additional 2,651 were resolved by the Clerk of Court. The
overwhelming reason for these Clerk-driven resolutions was settlement
by the parties after use of the court's mediation program.
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What is the effect of a single judge resolution of an appeal? To be
sure, such action resolves the dispute between the claimant-appellant
and the Secretary. However, through its rules and internal operating
procedures, the court provides that the actions of single judges in
Memoranda Decisions are not precedential. This means that such
decisions only apply to the case the single judge adjudicates. They do
not provide rules that are binding more generally on the Department of
Veterans Affairs in connection with its administration of veterans'
benefits. Thus, in FY 2016 while the court disposed of 1,561 appeals
through judicial action, it issued only 29 precedential decisions, that
is decisions by a panel of judges.
Finally in terms of current procedure, the court generally uses
oral argument only in matters decided by panels (or the court sitting
en banc). Oral argument is not prohibited in single-judge matters, but
the court's rules provide that ``[o]ral argument normally is not
granted on nondispositive matters or matters being decided by a single
judge.'' See Rule 34(b) of the Rules of Practice and Procedure of the
United States Court of Appeals for Veterans Claims.
In sum, the court's current procedures link the three concepts I am
discussing. A single judge disposition is one that is non-precedential
and for which oral argument will generally not be held. If I am
confirmed, I hope to be able to (a) disaggregate these three concepts
and (b) assess each one individually. I briefly note below some of my
ideas about these issues:
In my view, the court needs to issue more precedential
opinions. Whether such precedent is established in single judge
decisions or only by panels as now provided at the court is distinct
from the question of precedent standing alone. One of core components
of the establishment of judicial review of actions of the Department of
Veterans Affairs on benefits matters in the Veterans Judicial Review
Act of 1988 was to provide a legal framework by which the Department
would carry out the laws Congress enacted. This process works most
efficiently on the system as a whole if the court provides rules that
govern all cases not just the particular one before it. If I am
confirmed, one of my principal goals will be work to revise the court's
rules to provide for the issuance of more precedential opinions.
As I have described, the court's current procedures link
the precedential nature of a decision with whether the decision is made
by a panel or a single judge. There is no reason that this is
necessarily so. I hope the court will consider these matters
independently. While reasonable minds can differ on this question, my
tentative view is that there is a certain logic to the having
precedential decisions be those of the court acting in panels. When the
court is making a decision that will bind the Department's actions
across the United States and with respect to the millions of claims
filed each year, the considered deliberation of a panel of judges seems
the best approach. Thus, when one combines my first point with this
one, after independently assessing each variable, my current position
is that the court should hear many more cases in panels in order to
provide for an increased number of precedential decisions.
- A comparative note may be helpful in terms of explaining
why the court's decisions on these matters are so difficult. In
the context of Social Security, a denied claimant also has the
right to judicial review. However, judicial review in the
Social Security context is quite different than in the context
of veterans' benefits. A Social Security claimant files his or
her appeal initially in a United States District Court.
Thereafter, the parties can appeal the District Court's
decision to the regional United States Circuit Court of
Appeals. The result of this approach is that one body--the
District Courts--act merely on one case at a time. They can be
error correctors. There is a separate body--the regional
Circuit Court of Appeals--that can act more broadly on appeals
that reach it in order to establish binding precedential rules
in its geographic region. In some senses, the structure of
judicial review in the veterans' benefits context combines the
functions of the District Courts and regional Circuit Courts of
Appeals in the Social Security arena. The Court of Appeals for
Veterans Claims essentially needs to find a balance between
being an error corrector (what it does now in the single judge
decisions) and the provider of binding, broader legal
precedent.\5\
\5\ It is possible for a party to appeal a decision of the Court of
Appeals for Veterans Claims to the United States Court of Appeals for
the Federal Circuit. However, such an appeal is limited by statute to
pure questions of law. Outside of an appeal presenting a constitutional
question, the Federal Circuit's jurisdiction does not extend to appeals
focused on factual matters or to the application of law to fact. See 38
U.S.C. Sec. 7292(d)(2). The result of this jurisdictional limitation is
that the Court of Appeals for Veterans Claims is the final
decisionmaker in the great majority of situations. For example, in
Fiscal Year 2016 there were 4,140 appeals filed at the Court of Appeals
for Veterans Claims. In that same period, there were 104 appeals filed
at the Federal Circuit from decisions rendered by the Court of Appeals
for Veterans Claims. And even that relatively small number is deceptive
because a large portion of these appeals to the Federal Circuit were
dismissed for lack of jurisdiction under 38 U.S.C. Sec. 7292(d)(2).
---------------------------------------------------------------------------
Finally, there is the question of oral argument. As
described above, the court currently generally holds oral argument only
in panel (or en banc) matters and because the court hears so few cases
in panels there are correspondingly few oral arguments. Regardless of
how the other matters are addressed, I believe the court should hold
more oral arguments. In my view, oral argument has two principal
positive attributes. First, it is important as a means to reach better
decisions. Briefs are incredibly important, but they are snapshots of
the parties' positions. Oral argument allows a judge to explore and
probe the matters at issue in real time in a way that merely relying on
the briefs does not. Second, I believe oral argument has an important
public purpose. The general public should have the opportunity to see
how justice is being delivered. Oral argument provides that
opportunity.
Question 4. How would you evaluate statute? How would you evaluate
Congressional intent?
Response. The starting point, and potentially the ending point, for
statutory interpretation is the language of the statute at issue. As
the Supreme Court of the United States has held, a court begins with
the words in a statute and ``when the words of a statute are
unambiguous, then this first canon [of statutory interpretation] is
also the last: judicial inquiry is complete.'' Connecticut Nat'l Bank
v. Germaine, 503 U.S. 249, 254 (1992). Thus, if the language used in a
statute is not ambiguous, a judge's role is to apply that statute as
written.
If the language of a statute is ambiguous, that is the statute's
words are susceptible of more than one plausible meaning, a judge must
then utilize other tools of statutory interpretation to determine what
the statute means. One such tool is legislative history used to attempt
to determine the intent of the legislature that enacted the statute.
Sources for such legislative history include committee reports,
hearings before committees, and debates in the legislature.
A related but distinct means of assessing legislative intent
involves determining the general purpose behind a particular statutory
provision. If the statutory language is ambiguous and there is no
direct legislative history, a judge should determine the general goal
of the legislature from the history that is available. At that point,
the judge should interpret the statute in a way that is most consistent
with that purpose.
There are two other principles of statutory construction that have
special importance in the context of the interpretation of veterans'
benefits statutes contained in Title 38 of the United States Code.
First, the Supreme Court has held that ambiguities in statutes
providing benefits to veterans are to be construed in favor of the
veteran. See Brown v. Gardner, 513 U.S. 115 (1994). This pro-veteran
standard of construction does not mean that a veteran in a particular
case will always win. Rather, Brown v. Gardner instructs judges to
resolve statutory ambiguities in a way that over the course of all
veterans' cases would be most favorable to the veteran. At its core,
Brown v. Gardner operates on the presumption that Congress would intend
to be the most favorable to a veteran when the language of a statute is
not clear.
The second principle is one that relates to administrative law more
generally. Administrative agencies and other government departments
have the ability to enact regulations that have the force of law. If a
court determines that a statute is ambiguous and there are validly
promulgated regulations that purport to interpret the statute, a court
is required to defer to the agency's interpretation of the ambiguity so
long as that interpretation is a ``permissible construction'' of the
statute. See Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). The Department of Veterans Affairs issues
numerous regulations interpreting and implementing veterans' benefits
statutes. These regulations are generally found in Title 38 of the Code
of Federal Regulations. Accordingly, in many situations the Court of
Appeals for Veterans Claims will defer to a regulation promulgated by
the Department because it is a permissible reading of the statute at
issue. This is so even if the court would reach a different result in
resolving the ambiguity in the absence of the regulation.\6\
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\6\ Chevron deference is a controversial doctrine. The House of
Representatives has passed the Separation of Powers Restoration Act
that would, in part, direct courts not to apply doctrines of
administrative deference. Adoption of this or a similar statute would
have significant implications for the Court of Appeals for Veterans
Claims.
Question 5. Would you reverse a VA position that is consistent with
long-standing VA practice but you believe is an incorrect
interpretation of statute?
Response. Yes. If relevant legal principles led me to the
conclusion that a practice of the Department of Veterans Affairs was
unlawful I would reverse such a practice regardless of the length of
time it had been employed. An important caveat is that the Chevron
doctrine of administrative deference I discussed in response to
Question #4 above (as well as other doctrines of administrative
deference) could affect the ability of a judge to engage in statutory
interpretation as an independent matter.
Question 6. Would the potential cost of overturning an established
rule factor into your decision on how to adjudicate a case?
Response. No, with a potential caveat I discuss in a moment. As a
general matter, a judge should utilize the tools of statutory
construction I've described above to determine what the law is.
Questions related to the cost of complying with the law are questions
of policy properly consigned to the legislative and executive branches
of government. The caveat concerns the doctrines of administrative
deference I have discussed. For example, if a statute were ambiguous
and the Department had promulgated a regulation addressing the
ambiguity, it is conceivable that the Department's reliance on the cost
of various means of resolving the statutory ambiguity could play a role
in the judiciary's determination of whether the Department's
interpretation was ``permissible'' under the Chevron doctrine. Absent
such a situation, however, cost would not play a role in judicial
interpretation of the law.
Question 7. Pro bono attorneys and non-attorney advocates play a
significant role in providing representation to appellants who may
otherwise have to represent themselves before the court. However, in
2016, 28 percent of the appeals filed with the Court were pro se at the
time of filing while 33 percent of petitions were pro se at the time of
filing. What are your views of attorney or advocate representation
versus pro se representation?
Response. I believe that representation by attorneys and non-
attorney advocates is critical to providing the best outcome of
petitions and, in particular, appeals before the Court of Appeals for
Veterans Claims. Proceedings at the court are often complex both as a
matter of substance and procedure. Lawyers and other advocates are
better suited to recognize and navigate these complexities as well as
to provide the best arguments for the court to rule in a case than are
pro se appellants.
The court has aggressively sought to provide avenues for claimants
proceeding pro se to obtain representation in appeals. For example,
while the percentage of claimants remaining unrepresented on petitions
at the time of resolution is about the same as at the time of filing
(32% versus 33%), the situation is dramatically different with respect
to appeals. As you correctly noted, 28% of appeals began with
appellants proceeding pro se in Fiscal Year 2016. By the time of
resolution of those appeals, that number dropped to 12%. If I am
confirmed, I intend to support and, if possible, further expand the
court's efforts to reduce the pro se status of appellants (and
petitioners).
Chairman Isakson. Ms. Meredith.
STATEMENT OF AMANDA L. MEREDITH, NOMINATED TO BE A JUDGE OF THE
UNITED STATES COURT OF APPEALS FOR VETERANS AFFAIRS
Ms. Meredith. Thank you, Mr. Chairman, and Ranking Member
Tester. I also want to thank Ken Kramer, the former Chief Judge
of the Veterans Court, for being here today.
It is an honor to have been nominated by the President to
serve as a judge on the U.S. Court of Appeals for Veterans
Claims. I have spent my entire 20-year legal career working in
the field of veterans' law, and it would be a great privilege
to continue serving veterans in this meaningful new role.
During my career, I have seen the impact on veterans and
their families, when they face delays receiving decisions on
their claims for benefits. So, it would be important to me
personally to quickly begin helping the court provide justice
to the veterans who are already waiting and to keep up with the
incoming case load. I believe my experience, skills, and
dedication to this area of law would allow me to do just that.
After law school, I served on the staff of the Veterans
Court for more than 7 years and, since then, I have spent more
than 12 years working for this Committee. These experiences not
only have increased my gratitude for veterans, their families,
and their survivors, but have provided me with a strong
foundation of knowledge and skills that I believe would
translate well into serving on the court.
If confirmed, I would continue to build on that foundation
and work with the highest level of dedication and diligence to
ensure that veterans will receive justice in a fair, timely
manner with the respect they deserve.
Thank you.
[The prepared statement of Ms. Meredith follows:]
Prepared Statement of Amanda L. Meredith, Nominee to be Judge, U.S.
Court of Appeals for Veterans Claims
Good afternoon, Chairman Isakson, Ranking Member Tester, and
Members of the Committee. Thank you for the opportunity to testify
before you today.
It is an honor to have been nominated by the President to serve as
a judge on the United States Court of Appeals for Veterans Claims. I
have spent my entire 20-year legal career working in the field of
veterans' law and it would be a great privilege to continue serving
veterans in this meaningful new role.
During my career, I have seen the impact on veterans and their
families when they face delays receiving decisions on their claims for
veterans' benefits. So, it would be important to me personally to
quickly begin helping the court provide justice to the veterans who are
already waiting for decisions and keep up with the challenging incoming
caseload. I believe my experience, skills, and dedication to the area
of veterans' law would allow me to do just that.
After law school, I began my legal career by serving on the staff
of the Court of Appeals for Veterans Claims for more than 7 years. As a
law clerk, I learned the canons of veterans' law and gained valuable
experience with researching, editing, and writing judicial decisions.
Later, as the Executive Attorney to the Chief Judge, I supervised an
entire chambers' staff; managed the chambers' caseload, including
helping to ensure that cases were acted on in a timely manner; and
assisted the chief judge with issues concerning administration of the
court. I also supervised a task force of attorneys helping the judges
provide answers to veterans and their families who had already waited
too long for justice.
Since then, I have spent more than 12 years working for the U.S.
Senate Committee on Veterans' Affairs, where I currently serve as the
General Counsel and Deputy Staff Director. This work has included
conducting oversight and analyzing legislation regarding veterans'
benefits, the claims and appeals process at the Department of Veterans
Affairs, and the Court of Appeals for Veterans Claims. During this
time, I have had an opportunity to work collaboratively with veterans'
organizations and to assist Members of Congress in enacting a broad
range of laws to help improve the benefits and services for our
Nation's veterans.
These collective experiences not only have increased my gratitude
for veterans, their families, and their survivors but have provided me
with a strong foundation of knowledge and skills that I believe would
translate well into serving on the court. If confirmed, I would
continue to build on that foundation and work with the highest level of
dedication and diligence to ensure that veterans will receive justice
in a fair, timely manner with the respect they deserve.
Thank you again for the opportunity to appear before you today. I
would be glad to answer any questions you may have.
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[The Committee questionnaire for Presidential nominees
follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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[Committee non-confidential supplemental questionnaire
follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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[A letter from the Judicial Conference of the United States
Committee on Financial Disclosure follows:]
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
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Response to Prehearing Questions Submitted by Hon. Johnny Isakson to
Amanda L. Meredith, Nominee to be Judge, U.S. Court of Appeals for
Veterans Claims
Question 1. The United States Court of Appeals for Veterans Claims
generally hears appeals from claimants seeking benefits from VA. How
has your background equipped you to serve as an appellate judge?
Response. I have spent my entire 20-year legal career working in
the field of veterans' law, including more than 7 years serving on the
staff of the United States Court of Appeals for Veterans Claims and
more than 12 years on the staff of the Senate Committee on Veterans'
Affairs. Through these experiences, I have learned the canons of
veterans' law; gained valuable experience with researching, editing,
and writing judicial decisions; supervised an entire chambers' staff at
that court, including helping to ensure that veterans were receiving
timely decisions; and assisted the court with addressing its backlog of
cases. Also, I have conducted oversight of the disability claims and
appeals process and have assisted Members of Congress in advancing
legislation to improve the benefits and services for veterans and their
families. Based on these experiences, I believe I would be well-
prepared to step into the role of a judge on the United States Court of
Appeals for Veterans Claims.
Question 2. Can you describe what you believe is the appropriate
temperament and traits of a judge?
Response. The American Bar Association and other organizations that
have studied the desirable traits and temperament for judges have
identified a list of appropriate qualities, including the individual's
integrity, judgment, analytical skills, ability to be open-minded,
competence, ability to be courteous and professional, and decisiveness.
Based on my experience working with judges at the United States Court
of Appeals for Veterans Claims and on the staff of the Senate Committee
on Veterans' Affairs, I believe those all are important qualities for a
judge.
Question 3. What examples from your personal experiences can you
provide to demonstrate that you have both the temperament and traits of
a judge?
Response. In my role on the staff of the Senate Committee on
Veterans' Affairs, I have worked in a bipartisan manner with a broad
range of colleagues and stakeholders to assist Members of Congress in
enacting numerous laws affecting veterans and their families. This
requires the ability to listen to and understand different points of
view, to work professionally and diligently to find solutions, and to
thoroughly review and analyze proposed legislative solutions.
______
Response to Prehearing Questions Submitted by Hon. Jon Tester to Amanda
L. Meredith, Nominee to be Judge, U.S. Court of Appeals for Veterans
Claims
Question 1. Your experience with Congressional intent might be
different than that of your colleagues on the court. Please explain
what your process would be for interpreting Congressional intent.
Response. The first step in interpreting statutory language would
be to look at the text of the law itself to determine if it is clear
and unambiguous. If there is a need in a particular case to look to
additional sources to determine Congressional intent, that could
include a broad range of sources of legislative history, such as
conference reports, joint explanatory statements, committee reports,
floor statements, and hearing transcripts. The amount of weight
afforded to each source could vary depending on the specific
circumstances, such as whether the language being discussed in one of
those sources was changed prior to enactment.
Question 2. Would you reverse a VA position that is consistent with
long-standing VA practice but you believe is an incorrect
interpretation of statute?
Response. Yes, if appropriate based on the facts and law in a
particular case.
Question 3. Would the potential cost of overturning an established
rule factor into your decision on how to adjudicate a case?
Response. No, I do not believe that would be a relevant
consideration.
Question 4. What do you believe is a reasonable timeframe for the
court to make a decision?
Response. According to the fiscal year 2016 annual report for the
United States Court of Appeals for Veterans Claims, it took on average
14 months for an appellant to receive a decision on an appeal from a
single judge and nearly 22 months to receive a decision from a panel of
judges. For veterans and their families who have already navigated the
lengthy appeal process at the Department of Veterans Affairs before
reaching the court, I believe the court must continue to examine
options for decreasing these timelines. That should include examining
both the procedural activities that occur before a case is assigned to
a judge and the time a case awaits a judge's decision.
Question 5. Given your role in helping to move legislation through
the legislative process, do you believe there could be instances where
you would recuse yourself from consideration of certain matters? What
would be your guide in determining whether to abstain from
participation in matters before the court?
Response. According to the Code of Conduct for United States
Judges, ``[a] judge shall disqualify himself or herself in a proceeding
in which the judge's impartiality might reasonably be questioned.'' My
understanding is that a determination of this type would be dependent
on the specific circumstances of a particular case. In making such a
determination, I would be very mindful that the role of a judge on the
court is to provide justice to the litigants, which includes not only
acting fairly and impartially but also avoiding the appearance of not
being impartial.
Question 6. Pro bono attorneys and non-attorney advocates play a
significant role in providing representation to appellants who may
otherwise have to represent themselves before the court. However, in
2016, 28 percent of the appeals filed with the Court were pro se at the
time of filing while 33 percent of petitions were pro se at the time of
filing. What are your views of attorney or advocate representation
versus pro se representation?
Response. A particular case before the court may involve an
assessment of statutes, regulations, policies of the Department of
Veterans Affairs, judicial opinions, medical evidence, military
records, and other sources of information. Given the potentially
complicated nature of this work, I believe having the assistance of a
representative, particularly someone familiar with the area of
veterans' law, can be very valuable to an appellant and the court in
preparing pleadings in connection with proceedings before the court.
Chairman Isakson. Mr. Toth.
STATEMENT OF JOSEPH L. TOTH, NOMINATED TO BE A JUDGE OF THE
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
Mr. Toth. [Off microphone.]
Chairman Isakson. Use your microphone please.
Mr. Toth. Oh. It is an honor to have been nominated by the
President to serve as a judge for the U.S. Court of Appeals for
Veterans Claims.
I would not be here today without the support of so many
people, and I would be remiss not to mention them briefly. I
think of my grandparents, each of whom set off as a teenager
from a different country in search of a better life in the
United States. They worked in sheet metal factories and
restaurants, as housecleaners and secretaries so that their
children might have a better life. I am here today because of
them.
My late father urged me into the better part of my
formative years to become a lawyer. As always, I waited far too
long to heed his wisdom. I took my oath of office as a naval
officer a week after his passing and I know he was there with
me in spirit. I am only now beginning to appreciate the
sacrifices that he and my mom made in raising me and my
siblings.
Likewise, I extend a begrudging gratitude to my older
sisters who taught me, at an early age, the value of zealous
advocacy; to my brothers, two of whom served as Marine offices
and they have been models of self-sacrifice and service to
others. Most importantly, I thank my fiance for her love and
constant good cheer. Again, I am here today because of them.
Finally, I have had the good fortune to learn my craft from
some of the finest judges and lawyers in the United States. In
Daniel Manion and Robert Conrad I came to know two judges whose
wisdom, humility, and respect for the law made a lasting
impression on me. They are outstanding judges because they are
outstanding human beings. Likewise, I will never forget the
courage demonstrated by General Mark Martins, my boss in
Afghanistan, who modeled the ideal of servant leadership in the
most challenging of environments. Finally, Tom Campion, the
first partner I worked for out of law school, showed me that
one can get to the top of the legal profession while always
treating people the right way. These are but a few of the many
people to whom I am indebted.
Like most veterans, my experience serving our country was
among the most formative of my life. I learned the rules of
evidence in military courtrooms; tried cases on aircraft
carriers and in airplane hangars; drafted wills on submarines;
and pretended not to be scared as I donned body armor and
carried an M4 through mule paths in Afghanistan. None of it was
easy, but every second was worth it.
Most of all, I am grateful to the men and women whom I
served with and who embodied hard work and integrity. Whatever
service I gave to our country pales in comparison to countless
veterans, and their families, who made infinitely greater
sacrifices.
After leaving active duty, I spent my career as a lawyer in
Federal trial and appellate courts, working for principled
judges and litigating alongside talented lawyers spanning the
political spectrum. I have been exposed to many of the most
complex issues of civil, criminal, and administrative law, and
have wrestled with difficult questions of statutory
interpretation. Most significantly, I approached every case
with the same intensity whether it involved a major
corporation, elite law firm, or an indigent prisoner writing a
petition by hand. Every party deserves to have their case heard
fairly and decided by the operative law.
I am aware of the awesome responsibility that comes along
with serving as a judge and will work zealously to interpret
the law fairly and in the manner consistent with the will of
the Congress. I thank this Committee for its consideration of
my nomination.
I would be pleased to answer any questions that the
Chairman or Members of this Committee might have.
[The prepared statement of Mr. Toth follows:]
Prepared Statement of Joseph Toth, Nominee for Judge,
U.S. Court of Appeals for Veterans Claims
Chairman Isakson, Ranking Member Tester, distinguished Members of
this Committee: Thank you for the opportunity to appear before you
today. I am honored to have been nominated by the President to serve as
a judge on the United States Court of Appeals for Veterans Claims.
I would not be here today without the support of so many people and
I would be remiss not to mention them briefly. I think of my
grandparents, each of whom set off as a teenager from a different
country in search of a better life in the United States. They worked in
sheet metal factories and restaurants, as house-cleaners and
secretaries so that their children might have a better life. I am here
today because of them.
My late-father urged me through the better part of my formative
years to become a lawyer. As always, I waited far too long to heed his
wisdom--I took my oath of office as a naval officer a week after his
passing and I know he was there with me in spirit. I am only now
beginning to appreciate the sacrifices that he and my mom made raising
me and my siblings. Likewise, I extend my gratitude to my older
sisters, who taught me at any early age the value of zealously
advocacy; and to my brothers, two of whom served as officers in the
Marines, and who have been models of self-sacrifice and service to
others. Most importantly, I thank my fiance for her love and constant
good cheer. Again, I am here today because of them.
Finally, I've had the good fortune to learn my craft from some of
the finest judges and lawyers in the United States. In Daniel Manion
and Robert Conrad, I came to know two judges whose wisdom, humility,
and respect for the law made a lasting impression on me. They are
outstanding judges because they are outstanding human beings. Likewise,
I will never forget the courage demonstrated by General Mark Martins,
my boss in Afghanistan, who modeled the ideal of servant leadership in
the most challenging of environments. Finally, Tom Campion, the first
partner I worked for out of law school, showed me that one can get to
the top of the legal profession while always treating people the right
way. These are but a few of the many people to whom I am indebted.
Like most veterans, my experience serving our country was among the
most formative of my life. I learned the rules of evidence in military
courtrooms; tried cases on aircraft carries and in airplane hangars;
drafted wills on submarines; and pretended not to be scared as I donned
body armor and carried an M4 through mule paths in Afghanistan. None of
it was easy but every second was worth it.
Most of all, I am grateful to the men and women whom I served with
and who embodied hard work and integrity. Whatever service I gave to
our country pales in comparison to countless veterans--and their
families--who made infinitely greater sacrifices.
After leaving active duty, I spent my career as a lawyer in Federal
trial and appellate courts, working for principled judges and
litigating alongside talented lawyers spanning the political spectrum.
I have been exposed to many of the most complex issues of civil,
criminal, and administrative law, and have wrestled with difficult
questions of statutory interpretation. Most significantly, I approached
every case with the same intensity whether it involved a major
corporation, elite law firm, or an indigent prisoner writing a petition
by hand. Every party deserves to have their case heard fairly and
decided by the operative law.
I am aware of the awesome responsibility that comes along with
serving as a judge and will work zealously to interpret the law fairly
and in the manner consistent with the will of the Congress. I thank the
Committee for its consideration of my nomination.
I would be pleased to answer any questions that the Chairman or
Members of this Committee might have.
______
[The Committee questionnaire for Presidential nominees
follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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[Committee non-confidential supplemental questionnaire
follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
------
[A letter from the Judicial Conference of the United States
Committee on Financial Disclosure follows:]
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
------
Response to Prehearing Questions Submitted by Hon. Johnny Isakson to
Joseph L. Toth, Nominee for Judge, U.S. Court of Appeals for Veterans
Claims
Question 1. The United States Court of Appeals for Veterans Claims
generally hears appeals from claimants seeking benefits from VA. How
has your background equipped you to serve as an appellate judge?
Response. Two aspects of my experience as a lawyer have prepared me
to serve as a judge. First, I had the good fortune to clerk for two
outstanding Federal judges (Robert J. Conrad of the Western District of
North Carolina and Daniel A. Manion of the US Court of Appeals for the
Seventh Circuit) whose work ethic, humility, and respect for the law
made a profound impact on me. My work in Federal courts at the trial
and appellate level exposed me to the spectrum of Federal
constitutional, civil, criminal, and administrative law. This
experience has been invaluable.
Second, as a Navy Judge Advocate, I was able to work with veterans
and servicemembers from each of the branches of our armed services. As
a result, I have a good understanding of veterans' issues generally--
and specifically issues related to petitions for benefits.
Question 2. Can you describe what you believe is the appropriate
temperament and traits of a judge?
Response. As noted in the last question, I had the good fortune to
clerk for two Federal judges who exemplified the best traits of a
judge. Having reflected on this over the years, two things strike me.
First, a judge must be absolutely impartial and follow the law whether
the judge agrees with it or not. The oath of office requires this and
the parties to the case deserve that their case be determined by the
operative law and not the personal preference of a judge.
Second, a judge must have a consistent work ethic to ensure that
each case receives full and prompt consideration. A judge must read the
briefs and record of every case and address each issue presented. This
is the standard to which Federal courts are held.
Question 3. What examples from your personal experiences can you
provide demonstrate that you have both the temperament and traits of a
judge?
Response. At the risk of redundancy, I had the good fortune to work
closely with two judges who modeled the ideal traits of a judge:
impartiality, humility, hard work, and respect for the law. No matter
the area of law, cases present difficult questions and decisions. A
judge must be absolutely fair to both parties, give full and fair
treatment to every issue raised, and issue a decision that accords with
the law. My years clerking and litigating in Federal courts have
impressed upon me these qualities.
Question 4. According to the questionnaire you submitted to the
Committee, you provided legal advice to veterans during your assignment
to the Naval Legal Service Office in Pearl Harbor, Hawaii.
A. During that time, did you ever provide legal advice regarding
claims for benefits at the Department of Veterans Affairs?
Response. Yes. On numerous occasions, I advised (but did not
formally represent) veterans on their claim as they were preparing it
for the regional VA offices. Often, I advised veterans following an
adverse ruling from a VA office. For the most part, this advice
involved interpreting the administrative language (i.e. legalese) so
that the servicemember understood the substantive factors that the VA
would use to evaluate the claim and the procedures involved. In short,
I tried to simplify the process for veterans so that they understood
the legal showing that they had to make as well as the various
procedures and timeframes going forward. My object was less to achieve
a specific result than to enable the veteran to understand the process
and the governing law. This allowed the veterans to understand and take
a more active role in their own case.
B. Would you please describe any training you have completed in the
area of veterans' law?
Response. At Naval Justice School, I received training to provide
legal assistance to servicemembers, their spouses, and veterans. This
training involved issues related to veterans benefits. For the most
part, however, I learned this area of law on the job: assisting
veterans, reading the applicable laws, and learning the overall
statutory and regulatory framework. Reading opinions from the US Court
of Appeals for Veterans Claims (as well as the Federal Circuit and
Supreme Court) formed a significant part of this.
______
Response to Prehearing Questions Submitted by Hon. Jon Tester to Joseph
L. Toth, Nominee for Judge, U.S. Court of Appeals for Veterans Claims
Question 1. During your time as an Associate Federal Defender and
your two periods as a law clerk, did you have the opportunity to
observe judges with both good and bad judicial temperament? In
particular, what qualities would you take with you to the bench?
Response. The essential qualities of a judge are impartiality,
humility, respect for the law, and a consistent work ethic. I've had
the good fortune to clerk for two judges who exemplified these traits.
Likewise, my experience with Federal judges, both as a litigator and
law clerk, has been overwhelmingly positive. I've appeared before (or
come to know) a wide range of judges and am consistently impressed with
their professionalism and respect for the law.
As a judge I would treat all parties with respect, evaluate each
case (and issue presented) fairly, and resolve it according to the law.
Second, I would ensure that cases are resolved swiftly and that each
issue is addressed in full. Stated more simply, I would work hard.
Question 2. How would you evaluate statute? How would you evaluate
Congressional intent?
Response. Statutory interpretation always begins with the actual
language of the statue, as the Supreme Court has directed (Caminetti v.
United States, 240 U.S. 470 (1917)). Congressional intent, therefore,
is first evaluated as inherent in the language of the statute it
drafted. Where it is clear, then the language must be applied to the
facts of the case.
Things get tricky where the language is less than clear as it
relates to a particular issue in a case. In such cases, there are
various canons of construction available depending on the
circumstances. Further, judge must consult with superior courts to
evaluate how the actual or similar language has been interpreted in
cases. In certain instances, legislative history may be helpful where
such history evinces a clear intent on the part of Congress and coheres
with the language of the provision and guiding precedent.
Finally, it should be noted that closer cases involving novel
substantive or procedural issues may benefit from being heard by a
panel rather than adjudicated by a single judge. Consideration by
additional judges mitigates the risk of an erroneous reading of a
statute.
Question 3. Would you reverse a VA position that is consistent with
long-standing VA practice but you believe is an incorrect
interpretation of statute?
Response. Yes. Where, a judge believes, after sufficient
consideration and research, that the position of a party does not
cohere with the governing law, the judge must apply the law
accordingly--longstanding practice or otherwise. That said, this
situation would appear to be somewhat rare insofar as it need involve a
long-standing practice that had never been addressed by the Supreme
Court, Federal Circuit, or in a precedential fashion by the US Court of
Appeals for Veterans Claims in such a way as covered the facts of the
case at hand.
As noted earlier, cases of first impression that call into question
long-standing practices may benefit from resolution through a panel of
judges rather than through a single judge.
Question 4. Would the potential cost of overturning an established
rule factor into your decision on how to adjudicate a case?
Response. I'm not aware of any provision in law that dictates a
certain result based on the amount of money that may hinge on a ruling.
Unless such provision exists, it should not be a consideration of the
judge.
Question 5. What do you believe is a reasonable timeframe for the
court to make a decision?
Response. When I clerked on the United States Court of Appeals for
the Seventh Circuit, the policy was for judges to issue an opinion
within four (4) months of oral arguments and six (6) months if
extenuating circumstances presented. The Seventh Circuit is a famously
efficient court, but my experience was that this allowed sufficient
time for the judges to read and consider all relevant sources while
allowing for a swift adjudication of the case.
Insofar as is possible, I would hold to the practice of resolving
cases in the shortest period of time that allowed for full
consideration of all issues. The parties deserve as much.
Question 6. Pro bono attorneys and non-attorney advocates play a
significant role in providing representation to appellants who may
otherwise have to represent themselves before the court. However, in
2016, 28 percent of the appeals filed with the Court were pro se at the
time of filing while 33 percent of petitions were pro se at the time of
filing. What are your views of attorney or advocate representation
versus pro se representation?
Response. It is clearly preferable to have each party represented
by counsel capable of addressing the relevant facts and applicable law
in the clearest fashion. The Supreme Court has offered clear guidelines
for courts dealing with pro se cases. A court has a duty to make sure
that every petitioner--pro se or otherwise--gets a fair hearing. For
pro se petitioners, this may involve a more lenient reading of formal,
procedural rules but does not affect a judge's reading of the
substantive law. In my experience, courts do a good job of taking
seriously pro se petitions, giving appropriate leeway for formal
shortcomings while addressing the substantive merits of the petition in
a manner consistent with the law.
Question 7. How has your membership in The Federalist Society
informed your view of the role of government? The role of the courts?
Response. I've enjoyed attending Federalist Society events over the
years and have benefited from the exposure to disparate ideas covering
various areas of the law. For me, the biggest benefit of groups like
the Federalist Society is to provide lawyers exposure to areas of law
beyond those that one might specialize in. The most memorable
presentations I attended involved areas of law in which I had little
familiarity such as antitrust or intellectual property. That said, I'm
not sure that it has had an enormous impact on my view of the
government and the role of courts as I arrived at most of my views as a
result of years of experience and study.
More than anything, my experience as a rule of law attorney in
Afghanistan informed my views about the role of the government and
courts. That experience impressed upon me the reality that our
government is one of laws to which all--even the government itself--are
subject. Like most Americans, I took for granted what it means to live
in a society governed by law and where various powers (i.e. writing,
executing, and interpreting laws) are divided among different branches
of government. The role of the courts is to interpret the law
faithfully and to provide a clear and public account of the reasoning.
Chairman Isakson. Well, thank you very much. I will start
out and I will probably show my ignorance in the first
question, but I would like to ask each of you to answer it.
Tell me what you see in your role as a judge of the Court of
Veterans Appeals that you could do to be a catalyst to expedite
the appeals process in its entirety throughout the Veterans
Administration. Anything you, as a judge, can do to--we have a
huge problem with a stodgy, slow system right now--what you
could do in your influence to make that faster.
Mr. Allen. Well, Senator, first of all, I think the most
important thing is to have that in mind as a conscious, up-
front goal as part of your judicial responsibility. The court
really has two different things that it is trying to do. The
one hand is to resolve an individual case of an individual
veteran in their appeal, and the other is to do exactly what
Mr. Chairman's question suggests, which is make rules that
broadly can affect the system as a whole. And I think the court
can do a lot better at starting to think about those cases and
means of handling appeals that will provide broader guidance to
the Department.
For example, I think the court should issue more
precedential decisions, and I think the court can use devices
such as aggregate issue resolution, which was just recently
approved by the Federal Circuit for use at the Court of Appeals
for Veterans Claims, to essentially have your cake and eat it
too, to resolve the individual veteran's appeal, but at the
same time consciously think about whether that case can make
rules that would speed the process at the agency, at least in
the confines of the law as provided by Congress.
Chairman Isakson. Well, I was so impressed with your
responses when we were at the Old Executive Office Building
when we met the first time, and you are a professor, I think,
at Stetson. Is that correct?
Mr. Allen. I am.
Chairman Isakson. I think that background gives you a
tremendous opportunity to take your instructional talents that
you have used in your lifetime to this point to help the VA be
instructive in being more responsive to the appeals process for
the veterans.
Mr. Allen. Thank you.
Chairman Isakson. I think you will be an excellent
appointee.
Amanda, do you have anything to add to that?
Ms. Meredith. I think this goes back to the conversation we
have been having about the use of single-judge decisions at the
court versus having precedential decisions, and what Mike is
suggesting is that the court has maybe overused their authority
to issue single-judge decisions that are not precedential.
There has been a lot of commentary out there, law review
articles, other scholarly studies suggesting that in cases
where it may be beneficial for the court to resolve a factual
or legal question that they are instead using single-judge
authority, probably because it is more expeditious to get the
case out.
We had long discussions with Senator Tester yesterday about
whether there is a need to re-examine the circumstances under
which the court will voluntarily send a case to panel to make
precedential decisions. I agree with Mike, too, that the Monk
case has provided the court with an opportunity, making
explicit that the court does have authority for class action or
aggregate action authority, and there may be an opportunity to
help aggregate some of these claims and have them decided more
quickly.
Chairman Isakson. Mr. Toth?
Mr. Toth. Yeah. Just a few quick things, Mr. Chairman. I
agree with Mike and Amanda that the use of panel opinions,
going from five to eight judges, will allow the court to do
that more frequently, and that will provide more precedent,
which I think will make things quicker down below.
Also, I think there are ways that you can structure
chambers and be more efficient in terms of how quickly cases
can come out. Finally, just good old-fashioned hard work, I
mean, really taking the oath seriously as a claims court for
the case of the veterans. I mean, justice delayed, in a sense,
is justice denied. So, just to every day sort of put the
shoulder to the plow and get on with it.
Chairman Isakson. Well, as one who has been in a courtroom
on a few occasions--as few as possible, I might add--I am not a
lawyer, so if I was there it was because I had done something
wrong or somebody thought I had done something wrong. But, I
think everybody has always thought that judges--always wanted
to know what judges did under those robes, because they all
come in with robes and you never know whether they are goofing
off or whether they are actually doing something important,
whether they have got a book under there and they are going to
read while you are speaking, making your case.
I think your answer is right in that you can be a real
catalyst, seeing to it that the court is responsive, and is
responsive on a quick basis, because that is what the veterans
are looking for and that is what we certainly are looking for
as well. I think you all will do a great job, all three of you.
Senator Tester.
Senator Tester. Thank you, Mr. Chairman, and I want to
thank all three of you for your willingness to serve in this
very, very important job. I very much appreciate your
commitment to our vets.
I am going to start with Ms. Meredith and Mr. Allen, and I
will have another question for Mr. Toth, when I get done with
those two.
We spoke yesterday about your long history with the court
and veterans' law. How would your experience influence your
decisions as a judge on the court?
Mr. Allen. Well, I will give you my answer now, Senator,
but in the old saying, you know, where you stand depends a lot
upon where you sit, which right now I am not yet a judge.
Senator Tester. Yeah.
Mr. Allen. But, what I would I would like to think is two
things. One, I have spent, you know, the last 12 years being
the sort of pointy-headed academic. You get to think about how
things should be when you do not have to do what Joe says,
which is sort of put your shoulder to the wheel. I would like
to think that my experience can be translated from things that
I have said ``this is what you should try''----
Senator Tester. Yeah.
Mr. Allen [continuing]. To bringing that to the court to
try.
Senator Tester. Yeah.
Mr. Allen. Because, you know, one of the greatest catalysts
of success in the world is failure, because you try something
and if it does not work you try something else. So, I would
like to think that having thought deeply about this for 12
years I might have maybe skipped over some of those failures to
try to get to the success a little sooner.
Senator Tester. Right. Ms. Meredith?
Ms. Meredith. Thank you, Senator Tester. I would say part
of my background, as you know, is I spent 7 years working at
the Court of Appeals for Veterans Claims, so I have some
experience with doing the research, writing, and editing
judicial decisions already. I had an opportunity when I was
there to manage a chamber's caseload and supervise the law
clerks and interns.
So, I hope it would be a background that would allow me to
quickly become productive and effective at the court. I think
in terms of how I would approach decisionmaking, I do not think
my experience changes that. It would still just be based on the
facts and the law in the particular case. I hope it would let
me, from the outset, be a productive member of the court.
Senator Tester. Yeah, for both of you--and I will get to
you in a minute, Joseph--what would you say to those that would
say that it is more difficult for you to be impartial?
Ms. Meredith. I can take that one. I have spent 7 years at
the court, more than 7 years, making recommendations to a
variety of different judges based on the facts and the law in a
particular case, so I think I have had a very long track record
of doing just that, of being impartial, and my work here will
not impact that.
Senator Tester. All right.
Mr. Allen. I think that, if anything in my time in
veterans' law, the one sort of bad rep I have gotten is that I
am too close to the court. So, often times I have discussions
with people who represent veterans who claim that I think like
the VA, and then people who represent the VA that claim that I
think too much like the veterans' lawyers. So, I sort of figure
I have done that about right, if I am getting criticism from
everybody. And I think, in a way, the transition to being a
judge as opposed to an advocate is going to be easy because I
have not really been an advocate, other than for different
positions, if you will.
Senator Tester. Gotcha. All right. Mr. Toth, a different
question for you. You bring with you experience with the
Federal public defender's office, your clerkships with the
appeals court and district court judges, your time as a Judge
Advocate General in helping to establish the rule of law in
Afghanistan. Talk to me about the perspective that you would
bring to the court.
Mr. Toth. Senator, you are right. My career has been spent,
in a sense, half as a military lawyer dealing with
servicemembers and veterans and the other half working and
litigating in Federal courts. The combination, for me, sort of
provides an insight into how I would approach it at the court,
which is, first and foremost, the oath of office requires that
the Constitution--that I faithfully uphold the Constitution,
and in order to do that is to hear every case fairly, and that
is a due process right of every person, and to apply the law. I
mean, I have worked for outstanding judges, litigating in
courts, and have seen--you know, have always followed the law
to where it leads.
I think my experience as a veteran, and working with the
servicemembers and veterans, I think provides insight into the
life and to the types of people who are applying to the court.
If anything, it sort of goes back to the previous question,
which is the overall animating principle is to work hard to
adjudicate these cases on behalf of these people. It does not
mean rule for them or against them or anything. It is to hear
every case fairly and to, day in and day out, work hard to do
that.
Senator Tester. You have a little bit different background,
very exemplary but a little different. Do you anticipate
needing to get up to speed on veterans' law?
Mr. Toth. A bit.
Senator Tester. How would you do that?
Mr. Toth. The same way I have done it every single time.
You know, when I was in the military, you know, I showed up and
they basically handed me the Rules of Evidence and tossed me in
a courtroom. When I left the military and showed up in a
Federal Court, they handed me the Federal Rules of Civil
Procedure and briefs from elite law firms, and I put the
shoulder to the plow and got on with it. So, there will be a
learning curve that is daunting but I plan to do what I always
did, Senator.
Senator Tester. Thank you. Thank you, Mr. Chairman.
Chairman Isakson. Senator Blumenthal.
HON. RICHARD BLUMENTHAL,
U.S. SENATOR FROM CONNECTICUT
Senator Blumenthal. Thanks, Mr. Chairman, and thanks for
your kind words earlier today about working together on the
Denver facility and on the bipartisanship that characterizes
everything we do on this Committee.
I would like to ask a question about the expansion from
seven to nine judges on the U.S. Court of Appeals for Veterans
Claims. That was done as a result of the so-called Miller-
Blumenthal Veterans Health and Benefits Act. It is a temporary
increase in the number of judges. Would you favor permanent
expansion of the court?
Mr. Toth. I will take this one first, out of fairness. I
would. Yes. It allows the court to hear more cases, to hear
more quickly, and issue more panel decisions, which really sets
better precedent, clear precedent for the regional offices.
Ms. Meredith. Senator, I think expanding from seven to nine
is very well-timed because I think there is probably going to
be a huge influx of cases coming to the court as VA tries to
work down its backlog of 470,000 appeals, and the Board tries
to increase productivity maybe by 30,000 or 40,000 cases a
year.
I think if you look back at the caseload of the court over
the years it has varied greatly, from a few thousand cases a
year to now more than 4,000. I think the size of the court is
something that the court and this Committee should follow
closely, especially if they see a sustained increase, as to
whether or not nine is the appropriate number. Maybe more or
less. If you look back at the history of the court at one point
it actually asked to downsize. So, I think it is something that
we have to constantly look at, as to what is the appropriate
size of the court to deal with its caseload but also be
responsible to the taxpayers.
Senator Blumenthal. Is that a yes or a no?
Ms. Meredith. I think it depends on what the future of the
caseload holds for the court.
Senator Blumenthal. Well, you predicted it is going to
expand. If it does, yes or no?
Ms. Meredith. If the caseload continues to go up,
absolutely they should stay at nine judges.
Mr. Allen. I definitely think it should be at nine judges.
I think that the first reason that Joe gives is correct. I
think that gives more flexibility to make more law by doing
panels. Yet, I think the biggest reason is, you know, this
Committee and this Congress has provided tremendous resources
to the Board to increase its size, not just with VLJs, the
administrative law judges who decide the cases, but the staff
behind them.
The appeal rate to the court has remained relatively the
same, 10, 12 percent, but if the Board does what it says it is
going to do, which is instead of issuing about 55,000 to 60,000
decisions a year, issue 115,000 to 120,000 a year, that is
going to dramatically increase the workload at the court.
If I were giving advice to the Committee, which I do not
suggest that I would do, I would make this a permanent fix so
that every 4 years we do not have that same issue about do we
have to have a contingency plan to go to seven versus nine. So,
that is a definite yes.
Senator Blumenthal. I am not going to ask you the next
question, which is do you think it should be increased even
more. Everything that you have said, all of you, indicate that
likely is a yes answer. I am not going to put you on the spot
because you are not yet there. But, I would like you to commit
to come back and give us your views, once you are there.
By the way, I am going to support you. I appreciate your
service. I should have said that at the beginning. Thank you
for your willingness to serve in this very, very important job.
But, I think it is also your responsibility to give us your
best opinion, because as much as we would like to think we are
well informed, and we are probably better informed than a lot
of our colleagues on these issues, we have nothing like the
experience, the real-world experience that you will have in
these jobs.
If you have met--and I hope you have--veterans who have
waited for years for their claims to be resolved, and you hear
and feel their justifiable anger, I would like you to feel that
anger yourselves. Each of you have real-world life experience
with this process, and I know where your sympathies are. So, I
would like your commitment that you are going to give us your
best view, and say whether you think we need to increase that
number of judges.
Mr. Allen. Absolutely.
Ms. Meredith. Definitely.
Mr. Toth. Absolutely.
Senator Blumenthal. Thank you. Thanks, Mr. Chairman.
Chairman Isakson. Any further questions?
Senator Tester. No.
Chairman Isakson. Richard, do you have any further
questions?
Senator Blumenthal. No.
Chairman Isakson. Let me just make a statement, not really
a question. Probably one of the greatest innovations over the
last 10 years, in terms of services for our veterans, because
of the nature of service today and the type of warfare that
they are more often engaged in, have been the development of
veterans courts. We have six in Georgia now, where we have
courts in six of our largest counties that provide services,
legal services or legal courtrooms for veterans who have
brushes with the law or difficulties making the transition from
active service to regular civilian life.
As judges on the Court of Appeals, anything you can do to
promote that type of thing around the country would be of
tremendous help to our veterans and would help a lot of people
who otherwise are going to fall through the cracks. Keep them
from doing so. I just wanted to put that bug in your ear.
We thank you for accepting the nomination and to be
considered. Tomorrow, if Jon and I can get a quorum on the
floor, sometime around 11, we are going to have the vote, the
markup tomorrow, which I am sure will be successful. We wish
you the very best and we stand here to help you any time you
need us, any place, any time, anywhere.
If there is no further comment, this meeting stands
adjourned.
[Whereupon, at 2:52 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Hon. Thom Tillis,
U.S. Senator from North Carolina
Good afternoon. I'm here today to introduce two public servants
with true North Carolina ties to the Committee: Mr. James Byrne, the
nominee to be General Counsel of the VA and Mr. Brooks Tucker to be
Assistant Secretary for Congressional and Legislative Affairs. Both of
these men are eminently qualified and have a proven track record of
service to this Nation, in both a uniformed and civilian capacity.
mr. james byrne
Mr. Byrne most recently served as Associate General Counsel and
Chief Privacy Officer at Lockheed Martin Corporation. Prior to joining
Lockheed Martin, Mr. Byrne served as the career Senior Executive
Service Deputy Special Counsel with the Office of the United States
Special Counsel, and both General Counsel and Assistant Inspector
General for Investigations with the Office of the Special Inspector
General for Iraq Reconstruction.
Mr. Byrne has over 20 years of experience in the public sector,
including serving as a deployed Marine Infantry Officer overseas and at
Camp Lejeune and a U.S. Department of Justice (DOJ) international
narcotics prosecutor. He volunteered for the past ten years on the
Executive Board of Give an Hour, a non-profit organization that has
developed national networks of volunteer professionals capable of
providing complimentary and confidential mental health services in
response to both acute and chronic conditions that arise within our
society, beginning with the mental health needs of post-9/11 veterans,
servicemembers, and their families.
Mr. Byrne is a Distinguished Graduate of the U.S. Naval Academy,
where he received an engineering degree and ultimately held the top
leadership position of Brigade Commander. After earning his law degree
in 1995 from Stetson University, he served simultaneously as an Adjunct
Professor at East Carolina University and as a Law Clerk to the
Honorable Malcolm J. Howard of the U.S. District Court, Eastern
District of North Carolina.
Mr. Byrne brings a wealth of relevant knowledge and experience to
the table and I look forward to supporting his confirmation.
mr. brooks tucker
Mr. Tucker currently serves as a Senior Adviser to the Secretary of
Veterans Affairs after previously serving as a policy adviser on the
Presidential Transition Team.
Prior to his work with the current administration, Mr. Tucker
served as a Senior Policy Adviser for National Security and Veterans'
Affairs for Senator Richard Burr. My staff and I worked very closely
with Brooks in this capacity and he proved to be a great advocate for
veterans in North Carolina and throughout the country. Before turning
to government service, Mr. Tucker was an investment adviser with
Deutsche Bank and Merrill Lynch.
He is a retired Lieutenant Colonel and infantry officer in the
United States Marine Corps and was stationed at Camp Lejeune while on
active duty from 1988-1992, including deployments to Western Pacific
and Southwest Asia.
Brooks Tucker is a dedicated public servant who has given me his
commitment to bring a new focus to VA OCLA to engage with member
offices on a proactive basis, serve as an educational resource, and
work closely with this Committee and members to bring about meaningful
and lasting reforms to VA that will better serve our veterans for
generations to come. I look forward to supporting his confirmation.
______
Prepared Statement of Hon. Richard Burr,
U.S. Senator from North Carolina
Chairman Isakson, Ranking Member Tester, and Members of the
Committee, Thank you for the opportunity to present my views on pending
nominations under consideration by the Committee.
Today you will be considering a slate of nominees to serve on
behalf of veterans. I support that entire slate of nominees and I
wanted to specifically comment on four of the nominees who I have had
the pleasure of working with across the years as either my staffers or
as persons involved in service to veterans in my state.
Thomas Bowman has been nominated to be the Deputy Secretary of
Veterans Affairs. When I was Ranking Member of the Veterans' Affairs
Committee, Tom ably served on my staff and I found him to be a highly
competent and able manager of policy and staff. His background as a
veteran was a tremendous asset. I know he will continue to serve our
country and veterans well in this new position.
Brooks Tucker has been nominated to be Assistant Secretary of
Veterans Affairs. Brooks served in my personal office and on my
Veterans' Affairs Committee staff. Brooks was on the frontline of many
challenging constituent cases and difficulties with the Federal
Government impacting my home state. His background as a retired Marine
and as a Congressional staffer will give him keen insights into the
needs of both Members of Congress and their constituents in order to
navigate the labyrinth of the Federal Government and care for our
veterans.
Amanda Meredith has been nominated to serve as a Judge of the
United States Court of Appeals for Veterans Claims. Amanda worked for
me when I was the Ranking Member of the Veterans' Affairs Committee.
Her knowledge of veterans issues was encyclopedic and I confess I still
have not released her from service. My office continues to call on her
for her expert analysis of a broad range of veterans issues. She will
be an outstanding judge. She knows the law, she knows the agency, and
she knows the importance of making sure veterans receive the benefits
they qualify for under the law.
Finally, James Byrne has been nominated to be General Counsel for
the Department of Veterans Affairs. James is listed as a Virginian in
his paperwork--but I'm pleased to claim him as a home-grown North
Carolinian. He comes highly recommended from those who know him well
and he has worked on charitable endeavors important to North Carolina.
In addition to his military and legal background, he volunteered for
the past ten years on the Executive Board of Give an Hour, a non-profit
organization providing complimentary and confidential mental health
services to veterans, servicemembers and their families.
I look forward to the confirmation of these fine nominees. Our
veterans need them in place and the sooner we have them in place the
better we can fulfill our promises to our Nation's veterans.
I thank the Committee for taking up these nominations and for their
commitment to filling important positions. Finally, I thank our
nominees for their willingness to serve. Veterans have honored us with
their service and we honor them with the nomination of these dedicated
public servants.
______
Letter from Law Professors, Instructors, and Clinicians for
Michael P. Allen
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
HEARING ON PENDING NOMINATIONS
----------
WEDNESDAY, OCTOBER 4, 2017
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m. in room
418, Russell Senate Office Building, Hon. Johnny Isakson,
Chairman of the Committee, presiding.
Present: Senators Isakson, Cassidy, Rounds, Sullivan,
Tester, Brown, and Hirono.
HON. JOHNNY ISAKSON, CHAIRMAN,
U.S. SENATOR FROM GEORGIA
Chairman Isakson. Welcome to our nominees today. I am going
to waive my opening statement. Senator Tester is at an Indian
Affairs hearing. He will be joining us in a few minutes. But,
in the interest of time, as well as the fact that we have a
vote at 3:15, it would be wonderful for you and for us, if we
were finished by then. So, I am not going to do anything that
drags the time out. Congratulations and welcome.
We have three people on our witness list today to testify,
all nominees for positions in the Veterans Administration,
Melissa Sue Glynn, nominee to be Assistant Secretary for
Enterprise Integration; Randy Reeves, nominee to be Under
Secretary for Memorial Affairs; and Cheryl Mason, nominee to be
Chairman of the Board of Veterans' Appeals.
As is required by law, if each of you will rise and raise
your right hand, I will swear you before your testimony.
Do you solemnly swear or affirm that the testimony you give
and are about to give before the Senate Veterans' Affairs
Committee will be the truth, the whole truth, and nothing but
the truth, so help you God?
Ms. Glynn. I do.
Mr. Reeves. I do.
Ms. Mason. I do.
Chairman Isakson. Thank you. Please be seated.
As I said, we are going to waive the opening statements and
go to your testimony and then questions, and we will start with
Ms. Glynn. You are recognized for up to 5 minutes. There is a
penalty box. If you go longer than 5 minutes; we will put you
in it.
STATEMENT OF MELISSA SUE GLYNN, NOMINEE TO BE ASSISTANT
SECRETARY FOR ENTERPRISE INTEGRATION, OFFICE OF PUBLIC AND
INTERGOVERNMENTAL AFFAIRS, U.S. DEPARTMENT OF VETERANS AFFAIRS
Ms. Glynn. I will do my best to stay under 5 minutes then.
Good afternoon, everyone. Chairman Isakson and
distinguished Committee Members, I am truly humbled by the
opportunity to serve our veterans, their families, and work on
behalf of the employees of the Department of Veterans Affairs.
Meeting personally with some of the Committee Members and their
staffs, I have been able to gain appreciation of the commitment
all of you have to serving our veterans, and I am deeply
honored to be nominated by President Trump for the role of
Assistant Secretary for Enterprise Integration.
Today my mother, Jo-Ann Serrani, is here to provide support
for me, as she has always done. She taught me to balance
strength with empathy.
Chairman Isakson. Have your Mom stand. Where is your mom?
Ms. Glynn. My mom is right there.
Chairman Isakson. We are glad to have you [off microphone].
Ms. Glynn. I am also appreciative that many of my friends,
my chosen family, are also here in support.
Although my father has passed away, his care in his final
days were spent at the Carl Hayden VA Hospital in Phoenix,
Arizona. His military career was very brief, due to an injury
which shattered his knee, yet the care he received from the VA
lasted all of his days.
Before his passing, my grandfather finally opened up and
shared stories of World War II that he had kept private for
over 50 years, painful memories of concentration camps and the
suffering inflicted across Europe, even more painful for him,
from a Jewish background, whose family had fled the pogroms of
Eastern Europe. He held on to his memories tightly because he
could not reconcile those memories with his day-to-day life.
Those experiences, as well as my prior service as a board
member for the USO, influenced my desire to commit myself,
professionally and personally, to serve, if confirmed, as
Assistant Secretary for Enterprise Integration.
The Department is undertaking multiple, significant
initiatives simultaneously, and now more than ever requires
broad perspective, critical analyses, and independent
assessment to evaluate the efficacy of these efforts.
Modernization efforts are planned or already underway in VBA,
VHA, NCA, and BVA, as well as across VA's management functions.
Therefore, the Office of Enterprise Integration's (OEI)
greatest opportunity is to lead the Department's strategic
planning and performance model, serve as the driver for
modernization activities with a responsibility to track and
verify initiative progress, and provide analytical support.
These efforts all must align with the Secretary's priorities
and focus our resources on VA's mission--serving our veterans.
OEI also provides critical cross-departmental support
through its Center for Innovation (VACI) and the leadership of
the VA/DOD Joint Executive Committee. The VACI conducts ground-
breaking research and applied work on identifying barriers--
such as identifying barriers veterans experience to accessing
available mental health care. This critical work informs how we
prevent suicides.
Earlier in my career, I had responsibility for over 60
consulting projects at the VA as a partner with
PricewaterhouseCoopers (PwC). These ranged from defueling and
decommissioning VA's only nuclear reactor at the Omaha VA
medical center, the rollout of National Provider Identifiers
for VHA, to standing up the National Acquisition Academy in
Frederick, Maryland. I was afforded an opportunity to travel to
over 60 medical centers, benefit regional offices, and
cemeteries while I worked with PwC. I also had the opportunity
to lead a large implementation effort for the VA's business
partner, the Defense Finance and Accounting Service, to
significantly reduce fraud, waste, and abuse.
The last 9 years of my career have been devoted to
effecting change as a partner in the world's largest turnaround
consulting firm. As the managing director of Alvarez & Marsal's
public sector practice, I drew from my experience in the
private and public sector to address long-standing failings of
government programs. The majority of my work focused on fixing
broken Medicaid systems at the State level, where many States
were not agile enough to implement new delivery models, meet
changing needs of their clients, nor harness new advances in
health care and technology.
For the VA, Secretary Shulkin has identified five
priorities, and my prior experience directly aligns with two of
these--modernizing systems and focusing resources. Modernizing
and improving resource management enables the realization of
the remaining three priorities--greater choice, improving
timeliness, and suicide prevention. It is critical at this
juncture that progress is made to change how the Department
operates, to foster agility, and ensure appropriated resources
deliver value to veterans.
The Department has incredible opportunities to improve
today and for the future in leveraging leading practices, as
well as improving business operations will help us get there.
If confirmed, I will assertively drive the organization to
realize potential to improve and uplift its service to today's
and tomorrow's veterans and their families.
With appreciation to the Committee for the opportunity to
appear today, I look forward to answering your questions. Thank
you.
[The prepared statement of Ms. Glynn follows:]
Prepared Statement of Melissa Sue Glynn, Nominee to be Assistant
Secretary for Enterprise Integration, Office of Public and
Intergovernmental Affairs, U.S. Department of Veterans Affairs
Chairman Isakson, Ranking Member Tester and Distinguished Committee
Members, I am truly humbled by the opportunity to serve our Veterans,
their families and work on behalf of the employees of the Department of
Veterans Affairs. Meeting personally with many of you, I have been able
to gain an appreciation of your commitment to serving our Veterans. I
am deeply honored to be nominated by President Trump for the role of
Assistant Secretary for Enterprise Integration.
Today my mother, Jo-Ann Serrani, is here to provide support for me
as she has always has done. She taught me to balance strength with
empathy. I am also appreciative of my friends, my chosen family, who
are also here in support.
Although my father has passed, his care and his final days were
spent at the Carl Hayden VA Hospital in Phoenix, Arizona. His military
career was brief due to an injury which shattered his knee. Yet, the
care he received from the VA lasted all of his days. Before his
passing, my grandfather finally opened up and shared stories of WWII
that he kept private for over fifty years. Painful memories of
liberating Concentration Camps and the suffering inflicted across
Europe--even more painful for a Jew whose family fled the pogroms of
Eastern Europe. He held them tight because he could not reconcile those
memories with his day-to-day life. Those experiences, as well as my
prior service as a Board member for the USO Capital Region, influence
my desire to commit myself professionally and personally to serve, if
confirmed, as Assistant Secretary for Enterprise Integration.
The Department is undertaking multiple, significant initiatives
simultaneously, and now more than ever requires broad perspective,
critical analysis and independent assessment to evaluate the efficacy
of these efforts. Modernization efforts are planned or already underway
in VBA, VHA, NCA, and BVA and across the Department's management
functions. Therefore, the Office of Enterprise Integration's greatest
opportunity is to lead the Department's strategic planning and
performance model, serve as the driver for modernization with
responsibility to track and verify initiative progress and provide
analytical support. These efforts all must align with Secretary's
priorities and focus our resources on VA's mission--serving our
Veterans. OEI also provides critical cross Departmental support through
its Center for Innovation and leadership of the VA/DOD Joint Executive
Committee. The VACI conducts ground breaking work including identifying
barriers Veterans experience to accessing available mental healthcare.
This work informs preventing suicides.
Earlier in my career, I had responsibility for over 60 consulting
projects at the VA as a partner with PricewaterhouseCoopers. These
ranged from defueling and decommissioning VA's only nuclear reactor at
the Omaha VAMC to the rollout of National Provider Identifers for VHA,
to standing up the National Acquisition Academy in Frederick, Maryland.
I was afforded an opportunity to travel to over 60 medical centers,
benefits regional offices and cemeteries during my role as Engagement
Partner with the VA. I additionally led a large implementations effort
for the VA's business partner, the Defense Finance and Accounting
Service to significantly reduce fraud, waste and abuse.
The last nine years of my career have been devoted to affecting
change as a partner in the world's largest turnaround consulting firm.
As the managing partner of Alvarez & Marsal's public sector practice, I
drew from expertise in the private sector to address long standing
failings of government programs. The majority of my work focused on
fixing broken Medicaid systems at the State level. Many States were not
agile enough to implement new delivery models, meet changing needs of
their clients nor harness new advances in healthcare and technology. My
consulting teams focused on identifying the root causes of performance
and communication failure as well as significant cost overruns. Working
as interim management, we sought to build capacity of the State
employees while implementing changes aligning financial management with
programs, righting technology implementations, improving stakeholder
engagement, and increasing the value of service to their clients--often
the most vulnerable populations.
For the VA, Secretary Shulkin has identified five priorities and my
prior experience directly aligns with two of these priorities--
modernizing systems and focusing resources. And achieving success with
systems and resource management enables the realization of the
remaining three priorities: greater choice, improve timeliness and
suicide prevention. It is critical at this juncture that progress is
made to change how the Department operates to foster agility and ensure
appropriated resources deliver value to Veterans.
The Department has incredible opportunities to improve today and
for the future through leveraging leading practices in healthcare,
benefits delivery, customer service, as well as improving business
operations including integration of technology, human capital
management, facilities management and organizational governance.
If confirmed, I will assertively drive the organization to realize
potential to improve and uplift its service to today's and tomorrow's
Veterans.
With appreciation to the Committee for the opportunity to appear
today, I look forward to answering your questions.
______
[The Committee questionnaire for Presidential nominees
follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
------
[A letter from the Office of Government Ethics follows:]
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
------
[Letter from the nominee to the Office of General Counsel,
U.S. Department of Veterans Affairs:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
------
Response to Prehearing Questions Submitted by Hon. Johnny Isakson to
Melissa Sue Glynn, Nominee to be Assistant Secretary for Enterprise
Integration, Office of Public and Intergovernmental Affairs, U.S.
Department of Veterans Affairs
Question 1. Given your experience in information management, what
would you say is the largest problem facing the Office of Enterprise
Integration (OEI)? How do you plan to address it?
Response. OEI's mission is to work across the Department to align
all functions across a single strategic management operating model.
This model extends from strategic planning through performance
monitoring and is supported by risk management, data governance,
analytics and innovative strategies in support of modernization. In
order to effectively execution this mission, it is incumbent upon OEI
to interact across all of VA's offices and Administrations.
Through providing value added support to all of VA's offices and
Administrations, the required level of engagement will be achieved. In
my experience, providing quality service supported by a practice
governance framework fosters collaboration and coordination. Postively,
OEI has a talented staff and is delivering value across many of its
activities in risk management, data, policy, modernization support and
through the VA Center for Innovations which can be built upon.
Question 2. What priorities would you like to accomplish should you
be confirmed as Assistant Secretary for OEI?
Response. The Department is undertaking multiple, significant
initiatives simultaneously and more than ever requires broader
perspective, critical analysis and independent assessment to evaluate
the efficacy of these efforts. These efforts are underway in VBA, VHA,
NCA, and BVA and across the Department's management functions.
Therefore, the Office of Enterprise Integration's greatest opportunity
is to drive the Department's strategic planning and performance model,
serve as the driver for modernization with responsibility to track and
verify initiative progress and provide analytical support.
Question 3. What role do you see for OEI regarding the upcoming VA/
DOD electronic health records synchronization? How will your experience
help with the VA/DOD EHR synchronization?
OEI and its Assistant Secretary manage the Joint Executive
Committee (JEC) for VA/DOD coordination onbehalf of VA. The EHR
implementation and synchronization is a significant effort for the JEC
currently and will be through the implementation period.
OEI's role in data governance for the VA also is relevant to the
implementation activity as new data standards and ontologies are
established and maintained by the Department.
Additionally, OEI's current remit is to provide support to the
Deputy Secretary and Secretary for oversight of all modernization
iniaitives. The EHR implementation is categorized as a modernization
initiative. Therefore OEI will monitor project objectives, risk
management and progress.
My experience in implementing large scale systems including
Medicaid systems, dealing with privacy and protected health information
and data management will all be relevant to this critical effort.
Question 4. While at Alvarez & Marsal, you worked with state
governments facing administrative challenges. How will your experience
be applicable to the the work at VA OEI?
Response. My prior experience working with state governments
focused on developing fact based assessments from which we could
quickly devise execution strategies inclusive of dedicated change
management efforts. Examples of this prior work included work with
state legislatures to identify how to address budget gaps while
maintaining or improving citizen services, identifying low performing
school districts and how to create improvement plans, providing interim
management support to Medicaid offices to reorganize, address budget
gaps, address fraud, waste and abuse and improve financial forecasting.
Much of the work I was involved with included working with stakeholders
and clients.
There are multiple similarities with these experiences and the pace
of reform VA is undertaking currently in modernizing its processes,
organizational structures and systems. Critical is to undertake these
efforts while simultaneously improving services to Veterans and their
families.
______
Response to Prehearing Questions Submitted by Hon. Jon Tester to
Melissa Sue Glynn, Nominee to be Assistant Secretary for Enterprise
Integration, Office of Public and Intergovernmental Affairs, U.S.
Department of Veterans Affairs
Question 5. Please describe your understanding of VA's mission. In
your response, please describe how you would use the position for which
you have been nominated to further that mission.
Response. I have been nominated to serve as Assistant Secretary for
Enterprise Integration (OEI, formerly the Office of Policy and
Planning). OEI supports the VA's mission through driving cross
departmental initiatives, external coordination, continuous
improvement, and strategic planning. Within OEI are multiple functions:
Office of Planning and Performance Management, the Office of Data
Governance and Analytics, the Office of Policy and Interagency
Collaborations, the VA Center for Innovations, and the Modernization
Office.
My background as an academic researcher, management consultant and
interim manager of state Medicaid agencies will benefit OEI and VA by
improving internal management operations, streamline decisionmaking,
and improve stewardship of resources to focusing on direct impacts to
Veterans and their families.
Question 6. Have you discussed with Secretary Shulkin the duties
and the role you would assume as Assistant Secretary of Enterprise
Integration if confirmed?
Response. I have discussed the role and associated duties with
Secretary Shulkin. The Secretary highlighted that the role will have
primary responsibility for modernization of the VA to improve internal
management and enable modernization of healthcare and benefits
programs. The Office of Enterprise Integration leads cross-department
modernization leveraging its capabilities in planning and performance
management, risk management, data and analysis, and innovation.
Question 7. Have you formulated thoughts on what your new job
responsibilities would be and how you would approach those
responsibilities if confirmed?
Response. If confirmed as the Assistant Secretary for Enterprise
Integration, I see my role as the lead executive and senior advisor to
the Secretary, Deputy Secretary, and VA principal leaders in strategic
planning; policy management and analysis; business integration;
transformation and innovation; performance management; data analytics,
and data governance. I would ensure the work carried out under these
areas will be aligned and integrated across the Department to help
achieve the Secretary's priorities of providing Veterans with Greater
Choice; Improving Timeliness of services and benefits delivery;
Modernize VA Systems; Focus VA Resources on the care and services that
Veterans need the most, and Suicide Prevention.
Question 8. Please describe your management style and
decisionmaking process.
Response. I believe in a servant leader management model that
emphasizes developing individual team members. I enjoy working in
collaborative environments. Yet, I am comfortable with individual work
and rolling up my sleeves. I value thoroughness and reliability of my
team and seek the same of myself.
In order to feel confident with a decision, my preference is to
have facts and feedback available either through analysis,
investigation of regulations, trends, and through pointed discussion.
Question 9. How would your prior subordinates describe your
management style?
Response. Based on feedback from former employees, I am an
approachable manager who enjoys hands-on work as well as mentoring
staff. In my prior role, 360 degree performance reviews provided
invaluable feedback on my leadership style, ethical behavior,
management interactions, etc. The reviews have consistently been
positive.
Question 10. Please describe your previous role with
PricewaterhouseCoopers as it relates to VA.
Response. I served as the global relationship partner for the
firm's work with the Department from 2005--2008 and served as a project
leader on consulting projects with the VA beginning in 2001. As the
relationship partner, I was ultimately responsible for the quality of
the firm's services and management of engagement personnel. Projects
were sponsored by VHA, VBA, Acquisitions, Office of Information and
Technology and the Office of Management. I had the opportunity to visit
over 50 facilities including medical centers, regional benefits
offices, and cemeteries and work with numerous programs and staff.
Thus, I have grounding in VA's operations, systems, data, and financial
management.
Question 11. What was your impression of the Agency during the time
you worked for PWC and experienced ongoing engagement with VA?
Response. During my tenure at PwC, I was fortunate to be involved
in many consulting project which were on the cutting edge of healthcare
management and those which delivered direct value to the organization.
Yet, there were many efforts which stalled due to internal bureaucracy
and a risk adverse culture. In order to deliver valuable consulting
projects, it was often critical to work across internal stakeholders
and VA offices.
I have not had ongoing engagement with the VA since 2009.
Question 12. You have been with VA for several months now. What do
you see as the biggest challenges facing VA at this time--as to the
Department as a whole, and specifically in VBA, VHA, and NCA? On which
of these challenges will you focus and how would you intend to address
them through your role as Assistant Secretary of Enterprise
Integration? How would you measure your success?
Response. The Department is undertaking multiple, significant
initiatives simultaneously and more than ever requires broad
perspective, critical analysis and independent assessment to evaluate
the efficacy of these efforts. These efforts are underway in VBA, VHA,
NCA, and BVA and across the Department's management functions.
Therefore, the Office of Enterprise Integration's greatest opportunity
is to drive the VA's strategic planning and performance model, serve as
the driver for modernization with responsibility to track and verify
initiative progress and provide analytical support.
Success will directly align with the achievement of modernization
initiatives.
Question 13. If confirmed, how would you oversee certain management
activities and processes that require coordination across the
Department?
Response. The Office of Enterprise Integration serves to align the
functional organizations--VHA, VBA, NCA and BVA through driving
strategic planning, performance management, organizational governance,
and data analysis. Additionally, OEI has responsibility for leading the
Department's modernization activities. Through these activities, OEI
and the Assistant Secretary specifically have a unique vantage point to
proactively assess, coordinate and support functional and cross agency
processes.
Question 14. What do think your role will be in VA budget
formulation?
Response. I anticipate that OEI will play a role in budget
formulation through connecting the Department's strategic plan,
performance management and modernization efforts with resource
requirements impacting financial requirements.
Question 15. There has been significant effort to improve the level
of collaboration and cooperation between VA and DOD. What do you
believe would be your role in dealing with areas of concern involving
the two Departments? What recommendations do you have for improving the
level of collaboration and cooperation between the Agencies? Do you
have specific examples of improvements that could be made to the
Integrated Disability Evaluations System specifically?
Response:
(a) OEI's scope includes the Office of Interagency Collaboration
and Integration facilitates the development of joint policies and
programs between VA and DOD and other agencies as required, working
with DOD and other agencies to produce better outcomes in health care
and benefit delivery for Veterans, servicemembers, and eligible
dependents through enhanced collaboration and coordination. The office
is specifically responsible for preparing senior VA leadership for
joint VA/DOD Secretarial, Joint Executive Council (JEC) meetings. The
office drafts the
JEC Joint Strategic Plan and Annual Report to Congress. It also
provides policy oversight for the Transition Assistance Program with
the Department of Defense and Department of Labor.
Beyond planning functions, the two Departments are working on
execution planning toward an interoperable EHR which is very
significant and will support new opportunities for collaboration and
coordination. Additionally through the Veterans Experience Office,
there is greater specificity around the handoffs between Departmental
functions across the Veterans life journey. Focusing on specific points
of coordination to improve these handoffs and developing improved
navigation is a great opportunity to elevate serving our customers--
Veterans and their families.
(b) The Integrated Disability Evaluation System (IDES) is inter
agency work at the highest level, requiring constant collaboration at
the senior Departmental level and exceptional teamwork between Army,
Navy, Marine Corps, Air Force, and VA personnel. VA is responsible for
four of the eight core IDES process steps--Claim Development, Medical
Examination, Proposed Rating and Benefits Notification--with a total
time goal of 100 days for four steps. The IDES Program continues to
meet its program goals with an overall average time of 264 days (295
days is the goal) and the VA core process time is 85 days (100 days is
the goal).
During the six-month period from October 2016 through March 2017,
93% of IDES participant survey respondents expressed overall
satisfaction with the IDES process; Active and Reserve component
Servicemembers overall satisfaction rates were 94% and 87%,
respectively.
As with any program there is room for improvement and the joint
DOD/VA team constantly monitors the processes, customer satisfaction
surveys, and performance metrics to look for ways to improve the
process. Some specific improvements are:
Ensuring the Physical Evaluation Board for the
Department of the Navy and Department of the Air Force have
access to the Veterans Benefits Management System (VBMS) to
enhance communication and processing speed between VA and the
Services. The Army PEB has this access and has shown it to be
an improvement in the IDES process.
DOD and VA are developing a joint IT solution to
electronically transfer IDES case file and transactional data
to provide comprehensive end-to-end case management and
eliminate the need for manual updates to the current IT case
management system.
Secretary Shulkin's recent decision to adopt the DOD
electronic health record may also provide opportunities to
further streamline the IDES process.
Question 16. How involved do you anticipate being with the
decisions being made within the VA administrations on policy matters?
For example, how do you understand the role of your office, if
confirmed, as it relates to the process involved in the granting of
presumptive service connection for veteran claims?
Response:
(a) I anticipate that the Office and the role of the Assistant
Secretary advises the Secretary, the Deputy Secretary and other key
agency officials on matters relating to agency policy, regulations
development, legislative issues (in coordination with the Office of
Congressional and Legislative Affairs), risk communication, and
planning and evaluation activities. In support of policy development, I
anticipate OEI supports significant and cross-cutting policy through
conducting risk and economic analysis and program evaluations.
Additionally, OEI serves as a focal point for the development,
coordination, oversight, and management of policy documents.
(b) OEI and the Assistant Secretary specifically oversees the
efforts of the Health and Medicine Division of the National Academy of
Sciences, Engineering and Medicine to review the long term health
effects of Agent Orange exposure. This analysis directly relates to
determination regarding presumptive claims.
Question 17. VA has been working to develop itself into a high-
performing 21st century organization. What do you see as the greatest
challenges in this transformation and how can the Office of Enterprise
Integration and Center for Innovations assist VA in completing this
transformation?
Response. VA's transformation requires working beyond siloes,
encouraging personnel to seize opportunities to improve outcomes and be
empowered to make decisions. OEI and VACI strive to improve the
performance capabilities of the Department through promoting leading
practices, coordination of resources, developing fact based analysis to
inform changing practices and promote continuous improvement. The
challenge is harnessing all of the good information, the assessment
work and analysis and put it into practice.
Question 18. How can the Center for Innovations better increase
veterans' access to VA services? For example, Montana has the highest
rate of veteran suicide in the Nation. Please describe how as could
help address access to care issues in Montana given provider shortages
and geographical challenges.
Response. The VACI has engaged in multiple applied research
programs to identify barriers that inhibit Veterans from seeking
treatment for post-traumatic stress. Specifically, the 2016 study on
Veteran Access to Mental Health Services interviewed 42 Veterans, 24
Veteran supporters and 8 healthcare experts across 9 states and the
District of Columbia. 8 of the Veterans were interviewed in their home
state of Montana. Identifying the needs of Veterans in rural areas has
been the focus of numerous research efforts. Understanding their
perspectives, access requirements and needs is critical to delivering
customer service that underlies a commitment to Veteran-centric system.
Question 19. VA has made progress in addressing the stove pipe-like
organization of its Administrations and business lines. How do you
foresee the Center for Innovations working collaboratively with other
components of the Agency to address pressing challenges?
Response. VACI is engaged in applied research and improvement
programs across VA's Administrations and offices. Collaborative
engagement is key to advancing VACI's efforts, partnerships and
implementation activities.
Question 20. If confirmed, how do you envision working with the
policy and planning staff employed in the Agency's administrations and
staff offices? During your current employment with VA, have you had any
discussions with VA staff or Trump Administration staff regarding any
reorganization of Department employees or roles?
Response. OEI interacts with the Administration's policy and
planning offices (in VHA and VBA) through the driving the strategic
operating model. In concert with these offices, OEI develops the
Department's strategic plan reflecting annual performance goals and
objectives. VBA's and VHA's policy and planning offices develop
operating plans which align with the strategic plan and develop how
they will execute their missions and achieve their performance
objectives. OEI provides independent assessment of risk and achievement
of goals.
Question 21. What role do you see VHA playing in veterans' health
care in 5, 10, and 20 years?
Response. Aligned with Dr. Shulkin's views, I envision a system
that evolves to be market based and relies on community and
governmental partners in the future. A twenty year planning horizon is
far out, yet I anticipate the common EHR between the VA and DOD will
have very significant impacts on the ability to support
interoperability. In the near term, if legislation is enacted, a multi-
tiered network of providers will become available to our Veterans
receiving healthcare services. As Dr. Shulkin outlined partnerships
with the private sector is key to realizing this model which will also
focus on the whole health of our Veterans. This approach strives to
attain both mental and physical wellness through a multidisciplinary,
coordinated patient-centric care delivery model.
The network would consist of three groupings of providers. The core
network would include all VA-run hospitals, clinics, and centers, as
well as appropriate facilities run by other Federal agencies, tribal
health partners, and academic teaching institutions that have already
established relationships with the VA. Many of these facilities have
expertise in military service--related conditions, and all have the
core competencies required for providing comprehensive, coordinated
care. These facilities would increase access to highly specialized care
and address the needs of some veterans living in remote areas.
The second network would include organized private-sector delivery
systems that meet performance criteria for clinical outcomes,
appropriateness criteria, access standards, and service levels. The
process for acceptance into this second network would be highly
competitive and based on documented results. Integrated systems of care
would be ideally suited for inclusion, since their providers have been
investing in coordinated care for some time.
A third network would allow veterans to obtain care from additional
participating private-sector providers, ensuring access for veterans
who don't live within a reasonable distance of providers in the other
networks.
Question 22. A recent example of a flaw in VA's funding forecasting
is when the Agency requested that it be given more time to exhaust
Choice Fund dollars just a few months before it requested transfer
authority to plug a funding hole in the Choice Program. In this
instance VA's inability to forecast demand and spending nearly led to
veterans going without access to timely care. How do you foresee using
the Office of Data Governance and Analytics to inform decisionmaking at
the Department?
Response. The Office of Data Governance and Analytics (DGA) will
continue to coordinate and collaborate with the three VA
administrations (VHA, VBA, NCA) and other VA staff offices to ensure
appropriate demographic and operational data are collected for analysis
and modeling to support VA budget formulation, strategic planning,
financial reporting, and policymaking.
Question 23. In your view what steps can a large department take in
order to be prepared to respond to unforeseen developments during a
large-scale transformation?
Response:
There are many facets to leading complex transformation efforts.
Some of the most critical elements I believe achieve success are
highlighted below:
(a) The department should institute a governance structure
inclusive of a risk management capability. Thorough risk management
will not alleviate challenges associated with transformation. Yet, it
does mitigate surprises and can increase coordination across various
offices and individuals.
(b) In my experience, other critical components to successful
transformations include leadership and transparency. Leadership must
balance a focus on driving outcomes while being open to the
perspectives of stakeholders and partners. A successful leader seeks
transparency and is unafraid to share their objectives. A free flow of
ideas and perspectives enriches the effort, strengthens the
organization's resolve, and builds community and support from
stakeholders.
(c) Finally, change management is necessary to support
transformation through engaging employees and guiding them to
transition to new ways of working. Leveraging strategies and techniques
to manage the people aspect of change is key to achieving business
outcomes.
Question 24. Please provide copies of testimony you delivered as
referenced in Question 7A of the Committee's questionnaire.
Response. Unfortunately, the testimony was not submitted in
advance. However, the study which was sponsored by the Kansas State
Legislature and was the basis of hearings is available online. It may
be found through the following link: http://www.kslegresearch.org/KLRD-
web/Publications/AppropriationsRevenue/
KansasStatewideEfficiencyInterimRpt2016Jan12.pdf
Question 25. In response to question 11(B) of the Committee's
questionnaire, you noted that you would provide the Committee
information subject to any applicable legal restrictions. Please
describe which legal restrictions you foresee keeping you from
providing information to Congress. While drafting your response to that
question, did you discuss it with any individual, and if so, whom?
Response. I worked with the Office of Congressional and Legislative
Affairs (OCLA) in accordance with normal procedure for completing the
Committee's questionnaire. My response was intended to account for any
instance in which PII or other sensitive information was requested by
the Committee to which may require oversight letters as described in
the Congressional Oversight Manual.
Question 26. Do you agree that VA employees have an absolute right
to petition or communicate with Members of Congress and congressional
staff about matters related to VA matters and that right may not be
interfered with or denied?
Response. Yes, I agree. Congress has a vital role in the checks and
balances of our government, and as such, government employees have the
right to petition or communicate with Members of Congress and their
staff.
Question 27. Please provide the citation on the VHA Award cited in
question 4 of the Committee's questionnaire.
Response. The award was issued for meritorious service in
association with my efforts to defuel VA's only nuclear reactor in
2002.
Question 28. There are reports that the Administration, through
their Office of General Counsel, has ordered agencies to not provide
responses to Democrats' information requests. If you were to receive
such an order, what would you do? Have you participated in or been
aware of any communications where this topic was discussed? Please
provide details on the participants in this discussion, the substance
of the discussion, and any outcomes.
Response. I am not aware of any discussions or communications
directing agency personnel not to address information requests. I do
not anticipate receiving such an order, yet if were to, I would respond
to the request issued regardless of the party affiliation of the
requesting office.
______
Response to Posthearing Questions Submitted by Hon. Jon Tester to
Melissa Sue Glynn, Nominee to be Assistant Secretary for Enterprise
Integration, Office of Public and Intergovernmental Affairs, U.S.
Department of Veterans Affairs
Question 1. If confirmed, would you commit to reviewing the data
and modeling associated with the Choice Fund for accuracy and provide
the Committee with the findings of your review within one month of
taking office?
Response. If confirmed and as directed by the Secretary, I will
undertake a review of the data and modeling associated with the Choice
Fund and would provide Committee with the review's findings.
Question 2. When we met in my office we talked a bit about VA
health care and concerns about privatization. If confirmed you would be
providing data and advice to the Secretary and Under Secretary for
Health so they could make informed decisions about veterans' care. So
I'd like to better understand your views on this topic. In our meeting
you mentioned that good care-coordination would be a necessary pre-
cursor to privatization.
Can you further explain what you meant by that?
Do you believe veterans' health care should be privatized
or will you commit, as the Secretary did, to not move the Agency toward
privatization?
Response. If confirmed as Assistant Secretary for Enterprise
Integration, I will provide strategic planning, governance, risk
management, independent analysis, oversight of DOD/VA interaction and
will have responsibility for tracking enterprise level Modernization
activities. In the capacity of Assistant Secretary, it is not in
purview of this role to advise Department leadership on strategy
associated with delivering veterans' healthcare. Yet, I fully support
Secretary Shulkin's commitment that VA will not be privatized.
Chairman Isakson. Thank you, Ms. Glynn.
Mr. Reeves.
STATEMENT OF RANDY REEVES, NOMINEE TO BE UNDER SECRETARY FOR
MEMORIAL AFFAIRS, OFFICE OF PUBLIC AND INTERGOVERNMENTAL
AFFAIRS, U.S. DEPARTMENT OF VETERANS AFFAIRS
Mr. Reeves. Chairman Isakson, Ranking Member Tester, and
distinguished Members of the Committee on Veterans' Affairs,
thank you for this opportunity and privilege to come before you
and to seek your endorsement to serve as Under Secretary of
Memorial Affairs in the U.S. Department of Veterans Affairs. I
have had the privilege to meet individually with many of you
after I was nominated by President Trump, and I am also very
thankful and deeply fortunate to have had the opportunity to
interact and work with your staffs over the last few years on
important issues to our veterans while serving in various
capacities with the National Association of State Directors of
Veterans Affairs (NASDVA). I sincerely appreciate and continue
to be deeply impressed by your Committee's profound commitment
to the men and women who have served in uniform.
I am extremely honored to have been nominated by President
Trump and will, if confirmed, work tirelessly to ensure our
veterans and their families receive the honor, service, and
compassion they deserve and that they have earned. Secretary
Shulkin's trust, confidence, and support is deeply humbling to
me, and I believe the great working relationship he and I have
developed over many years will continue to benefit America's
veterans in whatever capacity I am privileged to serve in. I am
acutely aware that, if confirmed, I will ultimately be
responsible for the care and service provided to veterans and
families during what is, arguably, the most difficult time in
their lives, a responsibility I take very seriously.
For over 35 years, I have been committed to serving and
taking care of military members and veterans, most recently as
the Executive Director of the Mississippi Veterans Affairs
Board and as President of NASDVA. My life's mission is
straightforward, serving those who have served our Nation and
serving their families.
Most importantly, I must take time to thank my wife of 33
years, Aida, who has always stood by me and has supported me
through countless deployments and assignments and who has
served alongside me every step of the way.
Most amazing is that she did so while serving in the
military herself. She is a retired Air Force veteran with 20
years of service and she is my hero for all she has done for
our Nation. Because I was at sea for most of the years our
youngest child, Christen's, growing up, I have Aida to thank
for the successful woman and mother that Christen has become.
We are a military family. Our three sons have served during
war time, just like Aida and I. Jim is an Army veteran, having
served in Panama, Iraq, Afghanistan, and in many other places
around the world. Jarod is Navy veteran. He was a submariner
and he served all over the world also. Jon is currently in the
Air Force and is a captain stationed in Korea. I never fully
realized what my family, and families like them, actually go
through until I was the one at home while they were deployed.
As a retired military veteran, a former State Cemetery
Director, and as a State Director of Veterans Affairs
responsible for the full spectrum of care provided to our
veterans ``on the ground,'' I believe, if confirmed, I have the
unique insight and the acumen to effectively lead the men and
women at the National Cemetery Administration who so capably
serve our veterans and their families every day. I also
strongly believe my years of experience give me the knowledge
and the insight to understand the needs of our veterans and
their families and they enable me to translate those needs into
action on their behalf. I serve and work diligently every day
for our veterans and their families. That will always remain at
the center of my decisionmaking and the focus of my work,
regardless of where I am serving. If confirmed, that will never
change.
Again, I am deeply humbled and honored to be considered to
serve as Under Secretary for Memorial Affairs, for our veterans
and for their families. Thank you for this opportunity to
appear before you and I look forward to answering any questions
you may have.
[The prepared statement of Mr. Reeves follows:]
Prepared Statement of Randy C. Reeves, Nominee to be Under Secretary
for Memorial Affairs, Office of Public and Intergovernmental Affairs,
U.S. Department of Veterans Affairs
Chairman Isakson, Ranking Member Tester, and Distinguished Members
of the Committee on Veterans Affairs, Thank you for this opportunity
and privilege to come before you and seek your endorsement to serve as
the Under Secretary of Memorial Affairs in the Department of Veterans
Affairs. I have had the privilege to meet individually with many of you
after I was nominated by President Trump. I am also very thankful and
feel deeply fortunate to have had the opportunity to interact and work
with your staffs over the last few years on issues important to our
Nation's Veterans while serving in various capacities with the National
Association of State Directors of Veterans Affairs (NASDVA). I
sincerely appreciate and continue to be deeply impressed by your
Committee's profound commitment to the men and women who have served
our Nation in uniform.
I am extremely honored to have been nominated by President Trump
and will, if confirmed, work tirelessly to ensure our Veterans and
their families receive the honor, service and compassion they deserve
and have earned. Secretary Shulkin's trust, confidence and support is
deeply humbling to me and the great working relationship we have
developed, I believe, will continue to benefit America's Veterans in
whatever capacity I am privileged to serve in. I am acutely aware that,
if confirmed, I will be ultimately responsible for the care and service
provided to Veterans and families during what is, arguably, the most
difficult time in their lives; a responsibility I take very seriously.
For over 35 years, I have been committed to serving and taking care
of military members and Veterans, most recently as Executive Director
of the Mississippi Veterans Affairs Board and as President of NASDVA.
My life's mission is straightforward; serving those who have served our
Nation and their families.
Most importantly, I must thank my wife of 33 years, Aida, who has
always stood by me and supported me through countless deployments and
assignments and who has served alongside me every step of the way. Most
amazing is that she did so while serving herself. She is a retired Air
Force Veteran with 20 years of service and she is my hero for all she
has done for our Nation. Because I was at sea during most of the years
our youngest child, Christen, was growing up, I have Aida to thank for
the successful woman and mother she has become. We are a military
family. Our three sons have served during war time, just as Aida and I
have. Jim is an Army Veteran, having served in Panama, Iraq,
Afghanistan and many other places around the world. Jarod is Navy
Veteran, having served as a submariner all over the world. And, Jon is
currently serving as a Captain in the Air Force, stationed in Korea. I
never fully realized what my family, and families like them, went
through until I retired from the Navy and I was the one at home while
they were deployed.
As a retired military Veteran, a former State Cemetery Director and
as a State Director of Veterans Affairs responsible for the full
spectrum of care provided to our Veterans ``on the ground,'' I believe,
if confirmed, I have the unique insight and acumen to effectively lead
the men and women at the National Cemetery Administration who so
capably serve our Veterans and their families every day. I also
strongly believe my years of experience give me the knowledge and
insight to understand the needs of our Veterans and their families and
enable me to translate those needs into action on their behalf. I serve
and work diligently every day for our Veterans and their families. That
will always remain at the center of my decisionmaking and the focus of
my work, regardless of where I am serving. If confirmed, that will not
change.
Again, I am deeply humbled and honored to be considered to serve as
Under Secretary for Memorial Affairs; for our Veterans and their
families. Thank you for this opportunity to appear before you and I
look forward to answering any questions you may have.
______
[The Committee questionnaire for Presidential nominees follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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[A letter from the Office of Government Ethics follows:]
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
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[Letter from the nominee to the Office of General Counsel,
U.S. Department of Veterans Affairs:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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Response to Prehearing Questions Submitted by Hon. Johnny Isakson to
Randy C. Reeves, Nominee to be Under Secretary for Memorial Affairs,
Office of Public and Intergovernmental Affairs, U.S. Department of
Veterans Affairs
Question 1. Given your experience serving veterans at the State
level, what are some of the most important insights or perspectives
that you will bring to the position for which you are nominated?
Response. As a State Director, I have been ``on the ground'' with
Veterans and their families and have the unique perspective of having
assisted them in times of need, whether it be at the time of death of a
loved one, gaining access to health care, navigating the system(s) of
claims and appeals or any of the myriad of needs they may have. Each
``case'' has a face and a name and the individual situation each of
them faces is real for me, every day. Specifically, in the area of
Memorial Affairs, I first started my service in State government as the
Director of Mississippi's first Veterans cemetery and oversaw the
design and construction of that facility. I recently oversaw the
design, construction and opening of Mississippi's second Veterans
Cemetery. I received much of the same training and experience cemetery
staff who work in National Cemeteries do (Cemetery Foreman, Cemetery
Representative, Equipment Operator, etc). This experience and knowledge
will greatly aid me in understanding and translating into action the
ideas (and efficiencies) that can only come from employees who work in
the field every day. In addition to my technical knowledge of cemetery
and memorial operations, my past military experience required me to
perform duties such as a Casualty Assistance Officer, not to mention
experience in Command and in other instances dealing with and assisting
families whose loved one(s) died in service to our Nation. Looking into
the eyes of a wife, mother, child or other family member and explaining
that their loved one is dead, has left me with a mission, seared
forever into my soul, that I will do everything I can to help them by
serving on their behalf and by honoring the service and sacrifice of
both our Veterans and their families.
Question 2. Have you discussed with Secretary Shulkin the long-term
strategy for improving the Department of Veterans Affairs? How do you
see the National Cemetery Administration (NCA) fitting into that
strategy?
Response. I have been very fortunate to be able to, in my
capacity(s) as a State Director and with the National Association of
State Directors of Veterans Affairs (NASDVA), work with and advise
Secretary Shulkin on the needs of our Veterans. He has articulated,
both publicly and privately, his vision and priorities for VA but most
important have been his actions toward the future: transparency,
accountability, real modernization and priority of action. By focusing
on future needs of Veterans, VA will be better able to find and
institute efficiency and to balance how service and care are delivered
in the future.
NCA has consistently achieved the highest customer satisfaction
rating of any organization, public or private, in the country. VA must
continue to invest in NCA's infrastructure, as a foundational service
to our Veterans, to meet future (increased) need and demand. By
nurturing the success and reputation of NCA and the service it
provides, VA will be helping restore and foster confidence in the full
spectrum of Veterans' care and service into the future.
Question 3. The NCA has an excellent reputation for high levels of
customer satisfaction. What do you believe is the most significant
factor contributing to this excellent reputation and what areas could
be improved to further strengthen the Administration's overall success?
Response. NCA has developed a culture of honor that embraces the
fact that you only get one chance to get it right when a Veteran or
family member is laid to rest.
NCA must remain focused on ensuring, through internal
infrastructure and partnerships with others, the highest number of
Veterans have a Veteran burial option within a reasonable distance of
where they live. NCA must also continue to upgrade and enhance
information systems (scheduling, registry, geographical information
systems, etc) that can help increase efficiency of operation and
accountability.
Question 4. How are the demands for burials and funerals changing
from past demand and what will that mean for NCA operations and
planning going forward?
Response. The demand for Veterans' burial options are expected to
continue to increase in the future. To meet that demand, NCA must
continue to build capacity (based on need) and look for and develop
more efficient and innovative ways to meet that increased demand. NCA
must also continue to monitor and adjust to the shifts in demand/
preference for different types of burials. For instance, over the past
few years, there has been a general increase in preference for
cremations over casketed burials and NCA has, as I have observed, taken
steps to adjust to that shift.
Question 5. In your opinion, what role do funeral directors play in
helping NCA accomplish its mission and how should their input be
factored into policy and planning for NCA?
Response. Funeral Directors are very important in helping create
and manage appropriate expectations of the Veterans and families NCA
serves. They are the first persons (in the interment/burial process)
families interact with during the loss of their loved one. The
relationships Cemetery Directors and staff have with them, locally, is
important to ensuring a seamless process for families. Providing
current information (from NCA/local staff) to Funeral Directors (and
doing so often) is crucial.
Funeral Directors are important partners in serving Veterns/
families during the time of need. They work with and know the needs of
the people in their locale and their input can be very useful in
planning for future needs.
______
Response to Prehearing Questions Submitted by Hon. Jon Tester to Randy
C. Reeves, Nominee to be Under Secretary for Memorial Affairs, Office
of Public and Intergovernmental Affairs, U.S. Department of Veterans
Affairs
Question 6. Please describe your understanding of VA's mission. In
your response, please describe how you would use the position for which
you have been nominated to further that mission.
Response. VA's mission statement, ``To fulfill President Lincoln's
promise `To care for him who shall have borne the battle, and for his
widow, and his orphan' by serving and honoring the men and women who
are America's Veterans,'' accurately captures (in my opinion) the
sacred obligation each of us who serves Veterans and their families
has. It means, simply, to me that we shall put the needs of our
Veterans first and we will take every effort to care for them and honor
their service, (1) because they have earned it and (2) to tangibly
demonstrate to the Nation that service sacrifice is valued and always
will be. If confirmed as Under Secretary of Memorial Affairs, my
mission will be to foster and nurture the culture of honor for our
Veterans and their families that exists at NCA and to continue to
extend greater access to dignified burial options for our Veterans and
their families.
Question 7. Have you and Secretary Shulkin discussed the duties and
the role you would assume as Under Secretary of Memorial Affairs if
confirmed? If so, what specific areas of the job were discussed?
Response. I have been very fortunate to be able to, in my
capacity(s) as a State Director and with the National Association of
State Directors of Veterans Affairs (NASDVA) and given the close
working relationship he and I have developed, work with and advise
Secretary Shulkin on the needs of our Veterans. He has articulated,
both publicly and privately, his vision and priorities for VA, in
general, but most important have been his actions toward the future:
transparency, accountability, real modernization and priority of
action. By focusing on future needs of Veterans, VA will be better able
to find and institute efficiency and to balance how service and care
are delivered in the future.
NCA has consistently achieved the highest customer satisfaction
rating of any organization, public or private, in the Country. VA must
continue to invest in NCA's infrastructure, as a foundational service
to our Veterans, to meet future (increased) need and demand. If
confirmed, my role will be to nurture and further develop the future
success and reputation of NCA and the service it provides. To that end
I will, in concert with VA's leadership, be a part of helping restore
and foster confidence in the full spectrum of Veterans' care and
service provided by VA.
Question 8. Have you formulated thoughts on what your new job
responsibilities would be and how you would approach those
responsibilities if confirmed?
Response. If confirmed, my responsibilities in overseeing our
Nation's National Cemeteries and Memorial Programs and helping create
opportunities for establishment of State and Tribal cemeteries and
other burial options, where appropriate, will always focus on the needs
of the Veteran. To fulfill this mission and related functions, I will
work with Congress, the Administration and VA's leadership team to
ensure resources are in place to carry out that mission and ensure
those resources are employed in the most efficient and cost effective
way possible.
Question 9. How would you describe your management style and how is
it suited to this particular position in the executive branch?
Response. I am a leader and have been throughout my career, both
during my military service and in public service to our Nation's
Veterans. My leadership style depends on the needs of each situation.
My ``tool bag'' is big and I have the ability, through many years of
experience, to recognize the dynamics in large organizations or units
and adjust style and action to fit what may be needed to get the best
result and performance from that organization and its members. My past
experience, particularly in Cemetery Operations and ``on the ground''
experience, will greatly aid me in understanding and translating into
action the ideas (and efficiencies) that can only come from employees
who work in the field every day.
Question 10. Are there any specific problems or challenges that you
have already identified that you would like to tackle in this position?
Response. If confirmed, my greatest challenge will be to
capitalize, for our Veterans, on the success of NCA and to find ways to
take an already well functioning organization ``to the next level.''
Ultimately, if confirmed, my mission will be to find more ways to
extend and enhance the options available to our Veterans and their
families.
Question 11. Oftentimes, the only contact that a veteran and his/
her family will have with VA is through the National Cemetery
Administration. What will you do to make certain that this contact
remains positive?
Response. If confirmed, I will focus on NCA's culture of honor that
embraces the fact that you only get one chance to get it right when a
Veteran or family member is laid to rest. That mindset must be first
and foremost and the employees who care for our Veterans must see that
from me as the leader of the organization. I will be ``on the ground''
often, both to see our employees and to see the Veterans and the
families they serve.
Question 12. How can NCA better support tribal veteran cemeteries?
Response. If confirmed, I will ensure an NCA focus on communication
with and understanding of tribal governments. Appropriately taking into
account Native American culture(s) and belief(s) can go a long way
toward honoring these Veterans. As a State Director, I have observed an
increased emphasis by NCA in educating tribal governments about the
Veterans Cemetery Grant Program and promoting the program to them. That
must continue, taking into account the above considerations.
It is my understanding that NCA has two legislative proposals for
the FY 2018 budget that would benefit tribal cemeteries: (1) Expand
VA's Authority to Provide an Allowance to Transport Certain Deceased
Veterans to a State or Tribal Veterans Cemetery; and (2) Expand
Authority to Provide Headstones and Markers to Eligible Spouses and
Dependents at Tribal Veterans Cemeteries. Both of these should be given
serious consideration. Another item that could be considered (that I
have heard in the field) would be the use of grant funding to pay for
travel for State and Tribal Cemetery staff to attend NCA training in
St. Louis, dependent upon availability of funding. With constrained
local budgets, any small offsets can be very helpful.
Question 13. How will you address increasing demand for
ecologically-friendly burial options by veterans?
Response. If confirmed, I will look at and ask for ways to further
pursue alternative (natural and environmentally sensitive) burial
options for our Veterans and their families that, as may be
appropriate, reflect ``Green Burial Council'' recommendations.
Question 14. Do you plan to continue using the NCA's FY 2016-2021
Long Range Plan as a guiding strategy for the coming years? Are there
successes or shortfalls that can be gleaned from this strategy?
Response. NCA's Long Range Plan is a sound document that is an
effective roadmap for future delivery of NCA's services to Veterans and
their families. If confirmed, it will be incumbent upon me to
critically review the plan to determine what, if any, course
adjustments may be needed to further (positively) affect enhanced
efficiency and increased access to burial options, particularly in
rural areas.
Question 15. One of the goals of NCA's Long Range Plan is to
increase the use of burial and memorialization benefits. Two items
mentioned are to explore the possibility of establishing weekend
burials and to provide alternative burial options. What are your
thoughts on these items?
Response. I believe we need to explore these options, taking into
account available resources and with consideration of equity of service
(with our State and Tribal partners RE: weekend burials). Exploring
ways to provide alternative burial options should focus on the needs/
preferences of the population being served. If confirmed, these are
areas I will want to gain more information and insight on.
Question 16. Do you believe some post-service actions render a
person unfit to be buried alongside America's honored dead?
Response. Current policy and law, appropriately, excludes those
convicted of capital crimes, certain sex crimes and subversive
activity.
Question 17. The Rural Veterans Burial Initiative is intended to
provide increased burial access in rural areas where the veteran
population is less than 25,000. However, there are cities in largely
rural states have no veteran burial access for 100s of miles. What are
your plans to increase burial access for all veterans living in rural
states?
Response. If confirmed, it will be one of my first priorities to
explore, within law and available resources, how NCA may best address
the ``gaps'' in access described in this question.
Question 18. Do you believe there should be any limitations on
families being present at the graveside during the burial of their
loved ones in national and state veteran cemeteries?
Response. Graveside services are not normally conducted due to
safety concerns. Committal services are conducted at the cemetery's
committal shelter. Understandably, there are sometimes unique
situations for religious and other circumstances. As a former Cemetery
Director, I am cognizant of the desire for graveside services. I am
also cognizant of the safety issues and additional cemetery personnel
required should graveside services be allowed. If confirmed, I will
review current policy and feel exceptions should be determined locally
on a case-by-case basis, taking into account all mentioned (and any
other) factors.
Question 19. Do you support expanding NCA burial eligibility for
Hmong veterans who served in support of U.S. Forces during the Vietnam
War, or any other foreign nationals that supported and fought alongside
our American veterans?
Response. I believe, statutorily, the Department of Defense is
responsible for determining whether service in support of the U.S.
Armed Forces during a period of armed conflict is equivalent to active
military service. If confirmed, I will work with all diligence to
ensure burial and memorial benefits are provided for individuals deemed
eligible by the Secretary of Defense.
Question 20. What do you believe will be your most daunting
challenge and how will you confront it?
Response. Given the current (and growing) number of State and
Tribal cemeteries and burial options, working with States and Tribal
governments to ensure ``equity of service'' regardless of where a
Veteran or family member is interred, given the constrained budgets of
governments across the Nation. If confirmed, I will seek to be fully
inclusive of all our partners' challenges to ensure the ``equity of
service'' our Veterans and their families deserve.
Question 21. There are reports that the Administration, through
their Office of General Counsel, has ordered agencies to not provide
responses to Democrats' information requests. If you were to receive
such an order, what would you do? Have you participated in or been
aware of any communications where this topic was discussed? Please
provide details on the participants in this discussion, the substance
of the discussion, and any outcomes.
Response. My observation is that VA's longstanding practice has
been to respond to information requests from Congress. I am not aware
of any such orders not to respond to minority party members and it is
my intent to respond to all requests from Congress independent of the
party of the requester. In my previous capacity(s) I have, over the
past few years, worked with many Members of Congress and staffs on
numerous issues facing our Nation's Veterans. I have always focused on
the needs of the Veteran and have worked with and responded to all
persons equally. If confirmed, I will not change in that regard.
______
Response to Posthearing Questions Submitted by Hon. Jon Tester to Randy
C. Reeves, Nominee to be Under Secretary for Memorial Affairs, Office
of Public and Intergovernmental Affairs, U.S. Department of Veterans
Affairs
Question 1. If confirmed, how would you improve VA's current
programs to address the needs of rural veterans?
Response. To improve existing programs, we must first review and
assess what possible statutory, financial and policy limitations exist
with current programs. This is particularly important because I am
committed to looking for solutions to address remote areas/``pockets''
where Veterans/families are required to drive long distances for burial
options.
If confirmed, I will also assess the status of plans in progress in
current programs (example: status of completion of the Rural Veterans
Burial Initiative planned sites).
Three areas I will focus on first, if confirmed:
1. Pursue completion of currently planned Rural Veterans Burial
Initiative sites (if projects still outstanding) and determine
feasibility of expanding the program to additional sites.
2. Determine funding requirements to increase number of state/
tribal cemetery grants.
3. Review current process for state/tribal governments submitting
cemetery grant applications and develop and publish a simple/
transparent and easy to follow ``road map'' toward grant award.
Question 2. If confirmed, how would you address the religious and
cultural burial needs of tribal veterans?
Response. If confirmed, I will focus on:
1. Increasing outreach and inclusion. It is my understanding the
Cemetery Grants Service is conducting outreach with tribal governments.
However, I believe it is important to increase coordination with Office
of Tribal Government Relations (within VA, in states and with other
Departments, if appropriate) to better understand individual areas and
tribes and their needs.
2. Increasing inclusion of tribal leaders/members with significant
knowledge of traditions, customs, burial rites, etc of individual
nations/tribes early in the design process for proposed tribal cemetery
projects.
3. Most importantly, I will make it a priority to visit as many
tribal areas as possible that have unserved Veterans to see and learn,
first-hand, about their needs. Just as important, it will be a priority
for me to visit states and visit with state leaders.
______
Response to Posthearing Questions Submitted by Hon. Richard Blumenthal
to Randy C. Reeves, Nominee to be Under Secretary for Memorial Affairs,
Office of Public and Intergovernmental Affairs, U.S. Department of
Veterans Affairs
Question 3. Arlington Cemetery and State Veterans Cemeteries
According to the Association of the United States Army, Arlington
National Cemetery will reach its burial capacity in approximately 30
years, and unless changes are made, will be unable to accommodate
veterans who are currently fighting in Iraq and Afghanistan. Although
the Army is responsible for Arlington National Cemetery, the VA's
National Cemetery Administration can assist in efforts to help
alleviate the pressure on Arlington National Cemetery by ensuring
honorable and desirable burial options at VA national cemeteries.
a. Mr. Reeves: As Under Secretary for Memorial Affairs, you will be
responsible for maintaining 135 national cemeteries and providing
burial services for veterans and eligible family members. If you are
confirmed, what changes to VA national cemeteries will you make to
ensure they are a desirable option for veteran's seeking an honorable
burial?
Response. The National Cemetery Administration (NCA) has a
tradition of honoring our Veterans and a record of providing the
highest level of service to our Nations Veterans and their families.
Many National Cemeteries, too, are seeing increased burial rates and
the need for additional burial space. If confirmed, I will focus on
increased burial options and access and pursue additional burial
methods to allow more efficient land use in existing cemeteries. As we
look to the future, we will critically review NCA's strategic plan and
work with Congress, the Administration, other Departments and
stakeholders to adjust, as needed, to serve our Veterans in future
years. There will be increasing demand for the service NCA provides
that will require increased resources and, if confirmed, I believe it
will be a key part of my job to transparently and accurately inform
Congress, the Administration and the Secretary well ahead the need.
b. Mr. Reeves: Will you commit to working with the Army and
Congress to enhance the level of service at VA funerals in order to
pursue burial alternatives outside of Arlington National Cemetery?
Response. If confirmed, I commit to working with Congress and DOD.
Additionally, I will seek out and work with any and all stakeholders
who can help us ensure our Veterans are honored appropriately.
Question 4. Equity of Service for Veteran Funeral Honors
Mr. Reeves, in your response to the Committee's pre-hearing
questions, you identified working with State and Tribal governments to
ensure ``equity of service'' as one of your anticipated challenges. I
agree with your assessment that the variation among states and tribal
areas--which is largely attributed to budget constraints--is a major
barrier to ensuring veterans receive equitable services. Recently,
Connecticut was forced to limit military funeral honors due to budget
cuts. I firmly believe that even during times of economic adversity,
veterans and their families must receive the benefits and honor they
deserve.
a. Mr. Reeves: What resources are necessary to standardize the
level of services afforded to all veterans?
Response. This is not a ``one size fits all'' answer. The level of
resources needed depends on a number of factors that include (but are
not limited to), the size and complexity of a cemetery property, the
types of burials conducted and the number of burials conducted at the
cemetery. If confirmed, my focus will be on maintaining National Shrine
Standards for all burials and then working with all parties to find
ways to ensure proper resourcing based on the individual cemetery/
location whether the cemetery is National, State, Tribal or other. I am
always cognizant of the fact that when a Veteran or family seeks the
service provided in Veterans cemeteries, they generally see it as a VA
cemetery, regardless of National, State, Tribal, etc. When we consider
policies or services provided, we must take into account the resources
our partners have available, include them in the discussion and help
create expectations for our Veterans and their families that provides
the honor and service they deserve while, at the same time, considering
the burden (fiscally and otherwise) that may be created for our
partners (state, tribal, etc.).
b. If confirmed, how will you work with State and Tribal
governments to ensure ``equity of service'' for all veterans
nationwide?
Response. If confirmed, I will focus on (1) ensuring state and
tribal governments fully understand the requirements to maintain the
level of service our Veterans and families deserve (2) ensuring we
provide (within budget requirements) the resources needed for
``granted' cemeteries to go into proper operation and (3) work with
state and tribal governments to help them accurately articulate (to
state and tribal governments) resource needs for operation and
maintenance of their cemeteries. **Having done this at the state level
gives me unique insight and ability in this regard.
c. Do you believe that there should be a national standard of honor
guard that would include a gun salute?
Response. I strongly believe we should provide the highest level of
honor possible to our Veterans when they are laid to rest. I must also,
in deference to DOD, recognize that if they (DOD) are to provide gun
salutes at every funeral, it will require additional personnel and
budgetary resources.
Chairman Isakson. Thank you, Mr. Reeves.
Ms. Mason.
STATEMENT OF CHERYL L. MASON, NOMINEE TO BE CHAIRMAN OF THE
BOARD OF VETERANS' APPEALS, OFFICE OF PUBLIC AND
INTERGOVERNMENTAL AFFAIRS, U.S. DEPARTMENT OF VETERANS AFFAIRS
Ms. Mason. Chairman Isakson, Ranking Member Tester, and
distinguished Members of this Committee, thank you for the
opportunity and privilege to appear before you to seek your
endorsement to serve as the Chairman of the Board of Veterans'
Appeals. It was a privilege to have had the opportunity to meet
with many of you following my nomination by the President.
I am extremely honored to have been nominated by President
Trump to be Chairman of the Board of Veterans' Appeals and, if
confirmed, I will work relentlessly to ensure that the Board
provides the fair and timely adjudication of appeals that our
Nation's veterans and their families deserve. I am equally
honored by Secretary Shulkin's support of my nomination and
belief in my ability to lead the Board. Additionally, I am
deeply grateful to have had the opportunity to serve veterans
as a veterans law judge for 14 years, having had countless
hours of direct interactions with veterans, their families, and
caregivers. I am humbled by our veterans and I am honored to
have assisted thousands of our veterans' families and our
veterans.
I am joined today by my husband of 31 years, Lieutenant
Colonel Brett Mason, U.S. Air Force Retired, who is also my
college sweetheart. We share small-town Ohio values and
commitment to service as he is the son of a Navy Korean War
veteran. We have two wonderful sons. Bryan is a senior
mechanical engineering student at Ohio Northern University.
Trevor, who is here with me today, is a high school senior,
preparing to attend college next year.
My commitment to those who served this country is deep and
personal. My father served in the Navy as a Petty Officer
during World War II, and my mother is a retired high school
government teacher. As a young woman, like many of her
generation, she worked to support the war effort, installing
oxygen lines in B-17s at Wright Field.
After losing my father to suicide in 1969, my mother raised
me by herself in Portsmouth, Ohio. I also lost my brother, an
Army reservist who served during the Vietnam era, to suicide. I
commend Secretary Shulkin for elevating suicide prevention as
one of VA's priorities.
As a result of my father's World War II service and sudden
death, I was the recipient of VA benefits. Those benefits
provided crucial support to me, and as a result I understand
the importance and need for timely resolution of appeals.
My experiences as a military spouse enhanced my recognition
of the tremendous sacrifice made by the men and women who have
committed themselves to the defense of this Nation.
Additionally, my perspective as a VA leader is impacted by my
view as a veteran's spouse, daughter, and daughter-in-law.
I view service to this Nation as an obligation and an
honor. My experiences as a Department of the Air Force
civilian, Federal Labor Relations Authority attorney, and in VA
leadership positions, as well as my life as a military spouse
and veteran's spouse, have positioned me well to continue
serving veterans. If confirmed, I will ensure that in the
execution of my responsibilities as Chairman of Board of
Veterans' Appeals, I will always assess my actions and
decisions through the lenses as a veteran's dependent.
Since 1636, when the Pilgrims of the Plymouth Colony
decided to provide care for disabled soldiers, our country has
made care for our veterans a tenet. It is woven into our
Nation's very foundation and it is the core mission of the VA.
To meet this mission, VA must transform and modernize to adjust
to the changing needs of our veterans and their families. The
American people expect it and the veterans deserve it.
If confirmed, I will work daily to support VA
transformation and achieving the vision of President Trump and
Secretary Shulkin in providing the best care and service to our
nations veterans and their families.
Thank you for your hard work and insight in passing the
Veteran Appeals Improvement and Modernization Act of 2017. In
implementing this historic act, if confirmed, I will build the
veterans' trust by working with the dedicated Board staff to
ensure that the Board is focused on effective, efficient, and
expedient service to our Nation's veterans.
If confirmed as Chairman, I will bring my experience and
commitment to work diligently to promote a culture of service
to veterans. I will expand my existing cooperative
relationships with all those involved in the adjudication
process within the department, as well as the Veterans Service
Organizations and representatives, the Court of Appeals for
Veterans Claims, this Committee, and Members of Congress.
This is a great responsibility, and I can assure you that
if confirmed I will uphold this trust on behalf of our men and
women in uniform and on behalf of all those who have served.
Again, I want to thank the Committee for the opportunity to
appear before you and I look forward to answering your
questions. Thank you.
[The prepared statement of Ms. Mason follows:]
Prepared Statement of Cheryl L. Mason, Nominee to be Chairman of the
Board of Veterans' Appeals, Office of Public and Intergovernmental
Affairs, U.S. Department of Veterans Affairs
Chairman Isakson, Ranking Member Tester, and Distinguished Members
of the Committee on Veterans Affairs, I want to thank you for the
opportunity and privilege to come before you and seek your endorsement
to serve as the Chairman of the Board of Veterans' Appeals. I am
thankful for the opportunity and privilege to meet individually with
many of you following my nomination by the President. Your support of
and commitment to the wellbeing of our Nation's veterans and their
families is praiseworthy and encouraging.
I am extremely honored to have been nominated by President Trump to
be the Chairman of the Board of Veterans' Appeals and, if confirmed, I
will work tirelessly to ensure that the Board provides the fair and
timely adjudication of appeals that our Nation's veterans and their
families deserve. I am equally honored by Secretary Shulkin's support
of my nomination and ability to lead the Board. Additionally, I am
deeply grateful to have served Veterans as a Veterans Law Judge for the
last 14 years, having had countless hours of direct interaction with
Veterans, their dependents and caregivers. I am humbled every time I
meet with a Veteran and am grateful to have assisted thousands of
Veterans and families.
I am joined today by my husband of 31 years, Lieutenant Colonel
Brett S. Mason, USAF (ret), my college sweetheart and my rock. We share
small town Ohio perspectives and commitment to service as he is the son
of Navy Veteran who served in the Korean War. We have 2 wonderful sons.
Bryan is a senior Mechanical Engineering student at Ohio Northern
University in Ada, Ohio. Trevor is a high school senior, preparing to
attend college next year.
My commitment to those who served this country is deep and
personal. My father served in the Navy as a Petty Officer, 2nd class
during World War II. My mother is a retired high school government
teacher, who through much of the 2000's served as a United States
Capitol Guide. As a young woman, like many of her generation, she
worked to support the war effort. She installed oxygen lines in B-17s
at Wright Field, Ohio while my father served. After losing my father to
suicide in 1969, my mother raised me by herself in Portsmouth, Ohio. I
also lost my brother, an Army reservist during the Vietnam era, to
suicide in 1982. I commend Secretary Shulkin for elevating suicide
prevention as one of VA's priorities.
As a result of my father's WWII service and sudden death, I was the
recipient of VA benefits. Those benefits were critical and provided
support for me through college. My husband currently receives VA
service-connected disability compensation and has been repeatedly
impacted by the backlog of claims and delays. As a result, I understand
the importance and need for timely resolved appeals of benefits.
My experiences as a military spouse enhanced my recognition of the
tremendous sacrifice made by the superb men and women who have
committed themselves to the defense of this Nation. Additionally, my
perspective as a VA leader is impacted by my view as a veteran's
spouse, a veteran's daughter, and a veteran's daughter-in-law. We must
do better.
I view service to this Nation, in whatever form, as an obligation
and honor to be shared by all Americans. Serving in positions as a USAF
civilian in Europe, Federal Labor Relations Authority attorney, and in
VA leadership positions from Veterans Law Judge to Deputy Vice
Chairman, I developed an excellent background including personnel/HR
oversight, accountability, mission focus, labor issues, budget and
policy development. I believe my combined work experience and life as a
veteran's spouse has positioned me well to continue serving Veterans,
to whom we as a nation owe a great debt. If confirmed, I will ensure
that in the execution of my responsibilities as Chairman, I will always
assess my actions and decisions through the lenses of a Veteran's
dependent.
Since 1636, when the Pilgrims of the Plymouth Colony decided to
provide care for disabled soldiers, our country has made care for our
Veterans a tenent. It is woven into our Nation's very foundation and it
is the core mission of the VA. To meet this mission, VA must transform
and modernize to continuously adjust to the needs of Veterans and their
families. The American people expect it and the Veterans deserve it.
If confirmed, I will work daily to support VA transformation and
achieving the vision of President Trump and Secretary Shulkin in
providing the best service to our nations Veterans and their families.
I commit that I will work with the dedicated Board staff of Veterans
Law Judges, attorneys, and administrative professionals, to ensure that
the Board meets its responsibility to provide correct decisions in a
timely manner.
Thank you for your hard work and insight in passing the Veteran
Appeals and Modernization Act of 2017. Modernizing the VA as discussed
by Secretary Shulkin in recent testimony, working with Congress, VSO's
and other stake holders to boldly and aggressively address needs
highlighted by each of them, will buildupon what President Trump,
Secretary Shulkin and the Congress have already started to hopefully
regain the Veteran's trust. In implementing the Veteran Appeals and
Modernization Act of 2017, I will act to build the Veteran's trust by
ensuring that the Board meets its obligations to deliver accurate and
timely decisions in all matters before the Board and to continuously
find ways to improve and speed the appeals process within the
Department.
If confirmed as Chairman, I will bring my experience and commitment
to work diligently to promote a culture of service to Veterans.
Integrity and accountability will be core principles of the Board. I
will expand my existing cooperative relationships with all those
involved in the adjudication process--the Veterans Service
Organizations, Veterans Benefits Administration, Veterans Health
Administration, National Cemetery Administration, State Veterans
Organizations, Office of the General Counsel, the Court of Appeals for
Veterans Claims, this Committee and Members of Congress--so the Board
is focused on effective, efficient, and expedient service to America's
Veterans.
This is indeed a great responsibility. I can assure you, Mr.
Chairman, that if confirmed, I will uphold this trust on behalf of all
our men and women in uniform and on behalf of all those who have
served. I, again, want to thank the Committee for the opportunity to
appear before you. I look forward to answering your questions.
______
[The Committee questionnaire for Presidential nominees
follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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[A letter from the Office of Government Ethics follows:]
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
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[Letter from the nominee to the Office of General Counsel,
U.S. Department of Veterans Affairs:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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Response to Prehearing Questions Submitted by Hon. Johnny Isakson to
Cheryl L. Mason, Nominee to be Chairman of the Board of Veterans'
Appeals, Office of Public and Intergovernmental Affairs, U.S.
Department of Veterans Affairs
Question 1. How do you assess the tenure of your predecessor as
Executive in Charge of the Board? If confirmed, how would your tenure
differ and what will your priorities be?
Response. The last Chairman retired in February 2011. Since then,
four Executives in Charge have led the Board. Each of these individuals
applied his or her own leadership style and ideas to advancing our
mission of serving Veterans, dependents, and survivors by timely
adjudicating their appeals. If confirmed, my tenure would differ from
my predecessors' in both style and substance. I have always led by
listening. Communication is very important to me. People are important
to me. I always make time to walk around and speak with staff about
issues facing the Board. Substantively, my tenure would be defined by
the recently enacted Veterans Appeals Improvement and Modernization Act
of 2017. My primary focus will be to implement this law for maximum
effect. I am committed to the Secretary's priorities and will also
focus resources on our core mission, modernize systems so we can
efficiently provide accurate appeals decisions to Veterans, and improve
timeliness of appeals decisions. A Chairman sets the direction for the
Board, and during my tenure, the Board's priorities would be to deliver
accurate decisions to Veterans as rapidly as possible, and prepare our
Judges, attorneys, and administrative professionals to deliver those
results.
Question 2. If confirmed, do you plan to make any changes to the
makeup and organization of BVA?
Response. On October 1, 2017, the Board restructured its
organization to focus on our core mission--to hold hearings and issue
decisions to Veterans. We realigned our focus using our direct,
Veteran-facing mission as the guiding principle. The realignment was
also in line with Presidential Executive Order 13781, and Office of
Management and Budget (OMB) Memorandum M-17-22. The Board realigned
from five divisions to three--Appellate Operations, Policy, and
Resources. If confirmed, I would continue to assess our organizational
structure and manpower levels, to include in the attorney and Judge
ranks. I would make adjustments wherever possible to improve our
ability to deliver results to Veterans, whether they have legacy or new
process appeals.
Question 3. If confirmed, what measures would you take to ensure
that the culture at BVA fosters pro-veteran policies?
Response. Putting Veterans first is my mission. If confirmed, I
will assess the Board's work from a Veteran's perspective--working
backward to ensure the Board delivers results that the Veterans expect
and deserve. I will work with our Veterans Service Organizations and
external stakeholders to establish quarterly Veteran panels so that the
Board hears directly from Veterans and dependents about the issues they
face. I will be visible at local Veterans events to personally engage
with Veterans and encourage my staff to do the same as VA Ambassadors.
The Veterans Appeals Improvement and Modernization Act of 2017 affords
Veterans more choice in deciding what path to take if they disagree
with a VA decision. If confirmed as Chairman, I will ensure that Board
policies are pro-Veteran, to include policies associated with
implementing this historic legislation.
Question 4. The Committee has heard from a number of BVA employees
regarding a toxic work environment at BVA. What do you attribute this
dissatisfaction to? What steps would you take to resolve these problems
and restore confidence?
Response. The last six years at the Board have been marked by
frequent changes in executive leadership, lack of transparency or clear
direction, and an unprecedented period of growth and organizational
realignment. As a result, our employees have experienced a great deal
of stress and uncertainty. If confirmed, I will bring strength, vision,
and consistency to the Board. Throughout my career, I have listened to
and supported those who work with me and for me. I believe that
effective communication through personal interaction is key.
Question 5. In order to address the growing number of appeals
received by BVA, Congress provided increased funding in Fiscal Year
2017 for BVA to hire additional full-time employees. As noted in the
VA's budget request for FY 2018, BVA fell short of its original hiring
goals.
a. If confirmed, what is your goal for hiring new employees?
Response. If confirmed, I would continue the Board's plan to
increase its FTE to 1,050.
b. What is your plan for ensuring new employees are hired?
Response. The Department is modernizing its Human Resources (HR)
function, in part, by moving to a shared services model. As part of
this initiative, the Veterans Health Administration will begin
providing H.R. services to the Board on October 1, 2017. Although this
transition may initially result in some hiring delays, we still expect
to meet our hiring goal during the second quarter of FY 2018. If
confirmed, I would continue to work with the Veterans Health
Administration, while closely monitoring our progress toward our goal.
c. What is your plan for ensuring adequate office space for new
employees and current employees?
Response. If confirmed, I would continue to work closely with VA's
Office of Acquisition, Logistics, and Construction (OALC) and other
organizations with office space in our building to identify potential
additional space at 425 I Street NW. I would continue the Board's
robust programs for telework and remote work, and would expand these
programs where possible.
d. What is your plan for training new employees?
Response. The best way to improve the accuracy of appeals decisions
is to enhance the skills and knowledge base of those who produce the
decisions. The Board's training program for new attorneys combines
classroom training with assignment of a team of designated mentors to
work with the new attorney staff. At the three-month point, our Judges
take over with practical, hands-on training. Our judges are committed
to mentoring their attorneys, and on the job training continues to be
an essential part of a new attorney's education. New attorneys are also
expected to attend refresher training sessions as they near the end of
their first year. If confirmed, I would continue the Board's existing
training program for new attorneys, and would continue to assess and
adjust our training programs based on feedback received from our new
employees and their Judges, as well as from our Veterans Benefits
Administration, VA Office of General Counsel, and U.S. Court of Appeals
for Veterans Claims stakeholders.
e. Do you believe the employees hired during FY 2017 have been
trained properly?
Response. Yes.
Question 6. In BVA's FY 2016 Annual Report, it estimated that BVA
would issue 63,200 decisions in FY 2017.
a. How many decisions have been issued in FY 2017?
Response. As of September 24, 2017, the Board had issued 50, 064
decisions in FY 2017.
b. If confirmed, what productivity goals and standards would you
establish? Do you have confidence that the goals would place realistic
expectations on employees while ensuring quality and timely decisions
for veterans?
Response. If confirmed, I would assess the productivity standards
in place at the time to determine whether the Board's productivity
goals to produce timely accurate decisions for Veterans and their
families allow for a realistic work-life balance for our employees. I
would work with our labor partners to find the right balance to
preserve work life balance for our people while serving as many
Veterans as possible. Finding this balance requires continual
assessment and adjustment, and I am committed to doing so.
Question 7. The Appeals Improvement and Modernization Act of 2017
(Public Law 115-55) requires a major overhaul of the current appeals
system in an effort to ensure Veterans receive quality and timely
decisions on their appeals.
a. Do you agree to supply the Committee with all information,
materials and documents as may be requested by the Committee regarding
the implementation and operation of the new appeals system?
Response. Yes.
b. Under the new system BVA is required to maintain at least two
dockets, what is your plan for the current appeals that are pending a
hearing at BVA and the implementation of the new dockets required under
the new law?
Response. Current appeals would maintain their place on the Board's
legacy docket. The Board would continue to maximize the use of video
teleconferencing (VTC) to conduct Board hearings. The Board is still in
the process of designing its dockets for the new system; however, the
current proposal under consideration is to establish three dockets to
handle appeals adjudicated under the new framework. Additional details
on the Board's dockets in the new system will be provided to Congress
in the implementation plan required within 90 days of enactment of the
legislation.
Question 8. If confirmed, how do you envision collaborating with
the Office of General Counsel?
Response. If confirmed, I will continue the Board's established
relationship with the Office of General Counsel (OGC) wherein the Board
and OGC collaborate and conduct joint training on topics to include
ethics, financial disclosure, and appeals modernization.
Question 9. There have been situations in which a significant issue
has been under review by the Court of Appeals for Veterans Claims or,
after appeal from that court, by the Court of Appeals for the Federal
Circuit. Meanwhile, claims involving the same issue continue to come to
VA. Do you have any recommendations on how to manage claims that are
pending a court decision?
Response. I defer to Veterans Benefits Administration for any
recommendations as to how to manage claims that are pending a court
decision. If confirmed, I would maintain the practice in which the
Board's Litigation Support team is responsible for ensuring all appeals
returning to the Board from the Court of Appeals for Veterans Claims
are tracked and handled expeditiously and in compliance with the
Court's orders.
______
Response to Prehearing Questions Submitted by Hon. Jon Tester to Cheryl
L. Mason, Nominee to be Chairman of the Board of Veterans' Appeals,
Office of Public and Intergovernmental Affairs, U.S. Department of
Veterans Affairs
Question 10. Please describe your understanding of VA's mission. In
your response, please describe how you would use the position for which
you have been nominated to further that mission.
Response. Our mission, as the Department of Veterans Affairs, is to
care for those ``who shall have borne the battle'' and for their
families and survivors. Since 1636, when the Pilgrims of the Plymouth
Colony decided to provide care for disabled soldiers, our country has
made care for our Veterans a fundamental tenant of who we are. It is
woven into the very foundation of our Nation and it is the core mission
of the VA. To meet this mission, VA must transform and modernize to
continuously adjust to the needs of Veterans and their families. The
American people expect it and the Veterans deserve it. If confirmed, I
would work to support VA transformation and achieving the vision shared
by the President and Secretary of Veterans Affairs to provide the best
care and serve to our Nation's Veterans and their families. I commit
that I would work with our dedicated staff of Veterans Law Judges,
attorneys, and administrative professionals, to ensure that the Board
meets its responsibility to provide decisions in a timely manner.
Question 11. Have you discussed with Secretary Shulkin duties and
the role you would assume as Chairman of the Board of Veterans' Appeals
if confirmed? If so, what specific areas of the job were discussed?
Response. The Secretary and I have discussed his expectations of
me, were I to be confirmed. We discussed the Chairman's duties and
roles, and the need for strong leadership, accountability, compassion,
and consistency at the Board. We also discussed the need for
modernization and innovation in managing our legacy appeals, as well as
the implementation of the Veterans Appeals Improvement and
Modernization Act of 2017.
Question 12. Why do you seek this position?
Response. I seek this position to further my commitment of service
to our Nation and its Veterans by ensuring an effective appeals process
that provides expedient and correct decisions on Veterans' appeals from
all three VA Administrations and the VA Office of General Counsel. My
commitment comes from three different perspectives: First, as a
recipient of VA benefits due to my father's WWII service and early
death by suicide and my mother's determination to teach me to honor his
memory; second, as a military spouse supporting my husband's 20 years
of military service; and third, from my experience serving as an
attorney, a judge and a leader at the Board of Veterans' Appeals.
Living through the impact of suicide on a family taught me to look
behind what a Veteran presents to the real impact of their service.
Living on an Air Force base and hearing the roar of the planes taking
off, watching friends deploy and sometimes not return, and experiencing
the relocations far from family taught me to quickly assess situations,
understand the passion of service to this country, and impact when and
wherever you can. Hearing our Veterans tell of their service, their
courage, their pain and their needs renews my compassion and commitment
to making an impact through service. These experiences drive me to lean
forward into the challenge of meeting those needs and honoring that
service. I bring deep technical understanding of the issues and
seasoned leadership skills to this position. My experience with the
dedicated staff at the Board and the complex systems at work in the
Veterans appeals context will allow me to effectively lead the Board to
deliver the results that our Veterans deserve and expect.
Question 13. Please describe your management style and
decisionmaking process.
Response. I seek to build a strong and effective team committed to
serving Veterans by delivering results through quality and output. I
believe in leading by example, being approachable, compassionate, and
advocating for my staff. Open communication, visibility, staff
engagement, and setting clear expectations are hallmarks of my
leadership. I value innovation and unique perspectives. I believe in
professional growth and development of each employee.
Sometimes a decision requires quick resolution and if so, I will
act and be accountable for my decision. When there is time before
reaching a decision, I solicit input both internally and, to the extent
practicable, from external stakeholders and encourage the voicing of
dissenting views. I continually assess operations, request feedback and
will change my approach based on new information, data, and
discussions. I seek new approaches and opportunities that deliver
results. I believe in admitting to mistakes and resetting the bar.
Question 14. If we were to ask current and prior subordinates about
your management style, what would they say?
Response. Those who have worked with me describe me as caring,
fair, communicative, decisive, and open to creative solutions to
longstanding problems. They would say that I listen, advocate for them,
and look for opportunities to assist them to develop and grown in their
profession. They would say I believe in accountability, for myself and
those around me, and treat everyone with respect.
Question 15. What do you believe are the most significant
challenges facing the Board of Veterans' Appeals? Which of these
challenges will you focus on and how do you intend to address them?
Response. The most significant challenge for the Board is to
improve timeliness of appeals. Due to the large inventory of appeals,
Veterans wait too long for decisions. Thanks to Congress' insight and
understanding, the Veterans Appeals Improvement and Modernization Act
of 2017 became law in August 2017. If I am confirmed, implementing this
law to maximum benefit for the Veteran will be my primary focus. To
deliver results, the Board must also modernize systems to enable staff
to provide legally correct decisions to Veterans in an expedient
manner. The Board is working closely with Digital Service VA to
implement improvements in technology.
Question 16. Last year, VA convened an ``Appeals Summit'' with
Veterans Service Organizations (VSOs) to discuss reforming VA's appeals
process. The Veterans Appeals Improvement and Modernization Act of 2017
(P.L. 115--55), which was signed into law recently, is the product of
collaboration among VSOs, experts in the appeals process, VA, and
Congress. Given the significant role that VSOs played in crafting the
framework that's embodied in Public Law 115--55, how do you plan to
work with VSOs in implementing this law?
Response. If confirmed, I would continue to work closely and
collaboratively with the Veterans Service Organizations and other
Veteran representatives. VA should continue to collaborate with the
stakeholders who participated in the March 2016 Appeals Summit,
specifically, the American Legion, American Veterans, Disabled American
Veterans, the Military Officers Association of America, the National
Association of County Veterans Service Officers, the National
Association of State Directors of Veterans Affairs, Paralyzed Veterans
of America, Veterans of Foreign Wars, Vietnam Veterans of America, the
National Organization of Veterans' Advocates, and the National Veterans
Legal Services Program. If confirmed, I would continue to work with
Veterans' advocates and stakeholders throughout the implementation
phase of appeals reform, and am committed to ongoing engagement during
the implementation phase of appeals reform, to the extent allowed by
law. I look forward to continuing the strong relationships with the
Veterans Service Organizations to serve Veterans, their families and
survivors.
Question 17. VA recently proposed a pilot, the Rapid Appeals
Modernization Program (RAMP), to implement Public Law 115--55. Under
the proposed RAMP initiative, a veteran with an appeal before the Board
would be allowed to have their claim decided at a VA Regional Office
(RO), either under the supplemental claim lane or the higher-level
review lane. To what extent were you involved in the creation of the
RAMP initiative?
Response. I was not involved in the creation of the RAMP
initiative.
Question 18. A portion of the Board of Veterans' Appeals workforce
is part of a bargaining unit. What experience do you have working with
labor partners and how would you approach this relationship with the
Board of Veterans' Appeals labor partners should you be confirmed?
Response. As a Board leader, I have extensive experience working
with the Board's labor partners. In fact, I supervised both the past
bargaining unit president and the national second vice president. My
interactions with VA labor partners have always been professional and
respectful. As a former attorney at the Federal Labor Relations
Authority, I have seen the impact of poor relationships between
management and labor on an organization and ultimately on their
mission. These experiences have taught me the importance of listening
and understanding all perspectives. If confirmed, I would work to
rebuild trust and an open, communicative relationship with our labor
partners to ensure the Board delivers outstanding service to Veterans
while preserving a good work-life balance for our employees.
Question 19. On September 18, 2017, the President of the Board's
bargaining unit sent a letter (attached) to Secretary Shulkin and the
Senate Veterans' Affairs Committee expressing a loss of confidence in
the Board's current leadership and alleging gross mismanagement and
waste of government resources at the Board. About a hundred of the
Board attorneys signed the letter. Please discuss the three major
allegations raised in the letter.
Response. The Board's 963 employees include 95 Veterans Law Judges,
approximately 700 attorneys, and approximately 120 administrative
professional staff. AFGE Local 17 represents the attorneys and
administrative professionals. It is my understanding that around 100
employees signed this letter.
The September 18, 2017, letter alleges that Board management: plans
to eliminate de novo review; failed to adequately train hundreds of new
attorneys; and refused to provide necessary systems and equipment. I
will address each allegation in turn.
On the first allegation regarding de novo review, the Board
conducts a de novo review of each case, meaning it considers all of the
evidence independently, without deference to the rationale of the
decision being challenged. This is not going to change. The letter
states that higher productivity standards will result in an inability
to perform de novo review. This is not the case.
By way of context, approximately 155,000 Veterans are already
waiting for a Board decision, and the Board receives around 90,000 new
appeals every year. If the Board continues on its current path, the
Board will not be able to keep up with demand. The Board will finish FY
2017 with approximately 52,800 decisions for Veterans, which is 10,200
fewer than our organizational goal and less than the Board produced in
FY 2014 and FY 2015, when the Board attorney staff was smaller.
For more than a decade, each attorney at the Board was required to
produce 156 credits per year. Credits did not equal decisions. A credit
is not a decision, but rather a set amount of points that an attorney
must accrue to be fully successful. The points are based, in part, on
raft decisions prepared by Board attorneys. Each draft decision equals
a number of points, which are based on the complexity of the decision
and the evidence file.
In the fall of 2016, the Board worked with our union partners and
implemented a system with no productivity requirement for our
attorneys. In the first quarter of FY 2017, we lost 4,000 decisions
compared to the year before--and that was not acceptable. Board
attorneys and management both asked to bring back productivity, and the
Board went back to the bargaining table with the union. In
January 2017, the Board implemented different productivity standards,
which among other things, adjusted for time off. Under this standard,
after holidays and leave were deducted, each attorney was asked for an
average of two cases per week. We saw improvement in the number of
Veterans served, but we are still not where we need to be.
The Board began working with the union in August 2017 to again
adjust the standard. In FY 2018, the Board will ask attorneys to
prepare one additional case per week: a total of three cases, instead
of two per week. This standard is attainable, as evidenced by the fact
that 98-99% of Board attorneys met or exceeded a similar standard from
FY 2012-2015 and because the average case takes 8 to 10 hours to
perform de novo review and prepare a draft decision.
If confirmed, I commit to working with our union partners to make
adjustments to preserve work-life balance for our people while serving
as many Veterans as we can. . People are very important to me, and I
care about the almost 1,000 people who work with me at the Board. But I
also care about the almost 155,000 Veterans and their families who are
waiting for a decision, many of whom will wait for years.
On the second allegation regarding new attorney training, the Board
has always had a robust training program. Veterans' benefits law is
extremely complex, and we expect that our attorneys will not be fully
up to speed and productive for 12 to 18 months. Over the past 20 years,
the Board has re-engineered our training programs based on the need and
size of our hiring. During the periods when the Board hired to fill
direct vacancies, the Board used a single mentor per new attorney. In
the early 1990's when the Board hired a large number of attorneys, the
Board had classroom training program with mentors assigned at the end
of the training. Thereafter, the Board returned to variations of the
single mentor program until 2016 and the onboarding of more than 300
attorneys.
The Board's training program for new attorneys combines classroom
training with assignment of a team of designated mentors to work with
the new attorney staff. At the three-month point, our judges take over
with practical, hands-on training. Our judges are committed to
mentoring their attorneys, and on the job training continues to be an
essential part of a new attorney's education. New attorneys are also
expected to attend refresher training sessions as they near the end of
their first year. If confirmed, I would continue the Board's existing
training program for new attorneys, and would continue to assess and
adjust our training programs based on feedback received from our new
employees and their judges, as well as from our Veterans Benefits
Administration (VBA), VA Office of General Counsel, and U.S. Court of
Appeals for Veterans Claims stakeholders.
The third allegation was on providing attorneys the space and
equipment they need. The Board cannot accomplish its mission without
its employees, and has and continues to provide them the things they
need to do their jobs.
The Board is grateful for the additional resources Congress
provided in FY 2017, which allowed the Board to increase its attorney
staff. To accommodate the resulting increase in personnel, the Board
immediately began converting areas previously used for case storage for
use as hoteling spaces for teleworkers. To keep up with the rapid pace
of onboarding in the fall of 2016, the Board temporarily utilized all
available conference space as a short term remedy, and worked with our
VA partners to identify short-term space in the building. To further
address space challenges, the Board expanded its highly successful
telework program and offered remote work to all the eligible attorney
staff. The Board also worked with our VBA partners to temporarily open
a satellite office space at 1722 I Street to be used as a touchdown
space for a small number of experienced attorneys who already
teleworked. The Board continually communicated with the union during
this process. The facility at 1722 I Street is a secure office building
which houses many components of VBA, and the Board personnel were
directed to follow VBA policy for handling personally identifiable
information (PII) and protected health information (PHI) at that
location. As 95% percent of the Board's casework is now digital, few
documents containing PII or PHI should be generated. At 1722 I Street,
VBA has a specific location where all PII and PHI is destroyed.
If confirmed, I would continue to work closely with VA Office of
Acquisition, Logistics, and Construction (OALC) and other organizations
to identify potential additional space for the Board and its employees.
I would continue the Board's robust programs for telework and remote
work, and would expand these programs where possible.
Question 20. What role do you envision for the Board of Veterans'
Appeals in using technology to aid in the timeliness and accuracy of
appeals?
Response. If confirmed, I am committed to modernizing appeals
processing technology to optimize efficiency to best serve Veterans and
their families. I would continue to leverage industry best practices
and Human Centered Design principles to aid Board staff to meet the
mission of provide timely accurate decisions to Veterans and their
families. I anticipate continuing to collaborate with Digital Service
at VA leading the technical approach to modernize appeals systems.
Current applications, applications under development, and applications
being designed have great potential to improve the Board's ability to
deliver timely and accurate decisions to Veteran to include improving
the Board's interface with VBMS, provide automated processes to include
hearing scheduling. If confirmed, I pledge to continue to enhance the
technology at the Board to assist the Board employees to deliver
accurate decisions in an expedient manner.
Question 21. How long do you think a veteran should have to wait
for an accurate decision on an appeal? What ideas do you have to
improve the timeliness of appeals decisions?
Response. I believe that every Veteran should receive an accurate
decision on appeal as quickly as possible. It currently takes too long
for Veterans to receive a decision on appeal. The current system of
laws and regulations contain requirements that impact that timeframe.
With the enactment and implementation of the Veterans Appeals
Improvement and Modernization Act of 2017, I am confident that the time
a Veteran waits for an accurate decision on appeal will be
significantly reduced.
If confirmed, I plan to focus all resources to decide as many of
the legacy appeals as possible while maintaining good work-life balance
for the employees. I intend to assess the Board's current decades old
workflow processes from a Veteran's perspective and look for re-
engineering opportunities for delivering decisions on appeal on a real-
time basis. If confirmed, I also plan to implement a revised decision
format to update the 2 decades old current decision format to provide a
Veteran focused decision.
Question 22. Provide an estimate on how long it will take the Board
to resolve the legacy appeals pending before the Board. Please include
all the data and assumptions you use to answer this question.
Response. If confirmed, I pledge to address the legacy appeals
inventory as quickly and efficiently as possible. Currently, there are
approximately 470,000 appeals in the VA system and due to the nature of
the complex, inefficient and outdated legacy process, VA projects that
there could be an inventory of legacy appeals for several years. If
confirmed, I intend to assess decision output and devote resources
required to maintain timely processing of the legacy appeals. The goal
is to eliminate the inventory of legacy appeals in a timely manner
following enactment of the appeals modernization legislation, while
also maintaining timely processing in the new process.
Question 23. In your opinion, is the Department's Fiscal Year 2018
budget request, which anticipates supporting 1050 FTE, sufficient to
support workload requirements at the Board of Veterans' Appeals?
Response. Congress has been generous in providing the Board with
funding to support the Board's mission, and Board is grateful for the
support. If confirmed, I am committed to utilizing the current
resources to impact and deliver timely decisions to Veterans and their
families. As the Board moves to implement Veterans Appeals Improvement
and Modernization Act of 2017, we will continue to assess our funding
for workload requirements. Whether the Board will need additional
resources for appeals after implementation of the Veterans Appeals
Improvement and Modernization Act of 2017 is contingent upon resource
allocation decisions made by the Department and the Administration
during the annual budget process.
Question 24. What is your vision for employee training at the Board
of Veterans' Appeals? What ideas do you have to improve the accuracy of
appeals decisions?
Response. If confirmed, I would ensure that the robust Board
training program continues to offer training activities appropriate to
employees' diverse needs at every level. I would continue to develop a
trainee corps with the advice and participation of the judges and
senior attorneys to quickly and effectively develop a consistent level
of subject matter expertise and excellent case management skills. Next,
I would develop systematic in-service training programs for existing
attorneys to upgrade skills, encourage career development, and develop
our next generation of leaders and judges. To enhance judicial
management and cultivate outstanding decisionmaking, I would partner
with the National Judicial College to bring the judges all the tools
they need. Finally, those who perform administrative and technical
functions who need opportunities to develop skills and learn about the
fast-changing technological environment and master new ways of doing
business.
If confirmed, I will continue to evaluate ways to improve the
accuracy of appeals decisions utilizing available data. In FY 2017, the
Board's Quality Assurance team developed a data-centric approach to
improving quality of appellate decisions which allows the Judges to
obtain data related to their decisions. If confirmed, I anticipate
monthly briefings from QA to the Board Judges regarding this data.
Additionally, to assess and improve accuracy of Board appeals
decisions, Quality Assurance team will also be implementing a
modernized QA Case Review Process at the start of FY 2018, which will
begin reviewing a statistically significant percentage of Board
decisions for specific types of errors.
Question 25. There are reports that the Administration, through
their Office of General Counsel, has ordered agencies to not provide
responses to Democrats' information requests. If you were to receive
such an order, what would you do? Have you participated in or been
aware of any communications where this topic was discussed? Please
provide details on the participants in this discussion, the substance
of the discussion, and any outcomes.
Response. VA's longstanding practice has been to respond to
information requests from Congress. I am not aware of any such orders
not to respond to minority party members and it is my intent to respond
to all requests from Congress independent of the party of the
requester.
______
Response to Posthearing Questions Submitted by Hon. Jon Tester to
Cheryl L. Mason, Nominee to be Chairman of the Board of Veterans'
Appeals, Office of Public and Intergovernmental Affairs, U.S.
Department of Veterans Affairs
Question 1. If confirmed, will you commit to providing this
Committee with a detailed plan on how the Board intends to keep up with
demand and resolve the pending inventory within 60 days of
confirmation?
Response. Yes.
Question 2. I believe you have a very real morale problem at the
Board.
a. In your view, what are some of the factors driving poor morale?
Response. Without a Chairman, the last 6.5 years at the Board have
been marked by frequent changes in executive leadership, lack of
transparency and communication, and an unprecedented period of growth
and organizational realignment. As a result, Board employees have
experienced a great deal of stress, uncertainty, and lack of clear
direction resulting in poor morale.
If confirmed, I would bring leadership, vision, and consistency to
the Board. The Board staff and I share a strong commitment to the
mission of serving Veterans and, if confirmed, I would place even
greater emphasis on the importance of our shared commitment to meeting
that mission. I would work to improve morale by creating an environment
that fosters having pride in one's work and understanding the positive
impact our work has on those we serve.
b. What specific actions will you take, if confirmed, that will
address concerns of employees?
Response. If confirmed, I would work to rebuild trust and an open,
communicative relationship with Board staff and our Union partners to
address these issues. I am committed to listening and understanding all
perspectives. Open communication, visibility, and staff engagement are
hallmarks of my leadership style. I believe that, through open channels
of communication and personal interaction, I am best able to understand
and address the concerns of employees through regular small focus group
meetings to encourage participation by all.
If confirmed, I would continue to evaluate the attorneys'
performance standard and would work with our Union partners to preserve
work life balance for our staff while serving as many Veterans as we
can. I would continue to work closely with VA Offices responsible for
such space designs to identify potential additional space at 425 I
Street NW. I would continue the Board's robust programs for telework
and remote work, and would expand these programs where possible.
To ensure our employees are equipped to serve Veterans, I would
continue the Board's existing training program for both current staff
and new attorneys. I would continue to assess and adjust our attorney
training programs based on feedback received from our new employees and
the Judges, as well as from our Veterans Benefits Administration, VA
Office of General Counsel, and U.S. Court of Appeals for Veterans
Claims stakeholders.
c. Will you commit to providing this Committee a timeline, within
60 days of confirmation, for when you will undertake those specific
actions and then let the Committee know when they've been completed?
Response. Yes.
______
Response to Posthearing Questions Submitted by Hon. Richard Blumenthal
to Cheryl L. Mason, Nominee to be Chairman of the Board of Veterans'
Appeals, Office of Public and Intergovernmental Affairs, U.S.
Department of Veterans Affairs
Question 3. On September 18th, the President of the Board's
bargaining unit sent a letter (letter included behind questions) to
Secretary Shulkin and the Senate Veterans' Affairs Committee expressing
a loss of confidence in the Board's current leadership and alleging
gross mismanagement and waste of government resources at the Board.
About a hundred of the Board's attorneys signed the letter. The letter
lists three major complaints against the leadership--one of which is
failure to properly train 300 new attorneys hired by the Department.
a. The attorneys who work on these cases must be equipped to handle
complex and complicated cases and veterans rely on the counsel they
receive. Do you agree that hiring 300 new attorneys is an incomplete
solution if these new hires receive inadequate training?
Response. Our Veterans Law Judges play a key part in training our
new attorneys, and their decisional output is a key indicator that our
training is effective. A judge's decisional output decreases as he or
she spends time ensuring our newest attorneys learn to prepare legally
correct draft decisions for signature. If our attorneys are better
prepared during formal training, they require less mentorship from our
judges, who are then able to sign more decisions.
The Board's decisional output increased significantly in July,
August, and September as our new attorneys began producing draft
decisions for review and signature by the Veterans Law Judges. This
strongly indicates that our attorneys are being trained effectively.
Attorney retention is also a key indicator as to whether our
training is effective. As of October 3, 2017, only 16 of the more than
320 new attorneys hired in FY 2017 had left the Board, which, at around
5 percent, is well below the Department's average attrition rate of
around 9 percent.
If confirmed, I will continue to assess and adjust our training
program to ensure our attorneys receive correct and adequate training
to ensure they can prepare legally correct draft decisions for Veterans
Law Judges to ensure that the Board will meet its mission of issuing
timely, quality decisions to Veterans.
b. As you are aware, 100 attorneys signed a letter expressing
concern that new attorneys are unable to draft legally sufficient
decisions and are receiving virtually no training. Do you believe the
new training program for the recently hired attorneys is effective in
comparison to the single mentor program that it replaced? How do you
plan to address the concerns raised in this letter given that so many
of those involved with the Board signed it?
Response. The fact that 10 percent of the Board's employees signed
this letter shows that the Board faces serious issues which must be
resolved. If confirmed, I would work to rebuild trust and an open,
communicative relationship with Board staff and our Union partners to
address these issues.
Specifically, if confirmed, I would continue to evaluate the
attorneys' performance standard and would work with our Union partners
to preserve work life balance for our staff while serving as many
Veterans as we can. I would continue to work closely with VA Office of
Acquisition, Logistics, and Construction and other VA offices with
office space in our building to identify potential additional space at
425 I Street NW. I would continue the Board's robust programs for
telework and remote work, and would expand these programs where
possible.
The current training program for new attorneys combines classroom
training with assignment of a team of designated mentors assigned to
work with the new attorney staff. At the three-month point, our judges
take over with practical, hands-on training. Our judges are committed
to mentoring their attorneys, and on the job training continues to be
an essential part of a new attorney's education.
The Board has re-designed its training programs several times in
the last 20 years, and did so again in FY 2017. The Board was doubling
its attorney corps by onboarding over 300 attorneys, and single
mentoring would have had a significant impact on the Board's ability to
issue decisions to Veterans.
In early FY 2017, the Board tested several training approaches and
determined that establishing a dedicated corps of experienced attorney
mentors was more effective than assigning individual mentors. This was
true because it maximized utilization of each mentor's time, e.g. by
allowing group discussions where appropriate, as well as the Board's
ability to standardize the substance and approach of mentor training to
promote best practices across the organization. Shifting to a shared
mentor approach also minimized the impact of time spent on mentorship
activities on decisional output, by permitting hundreds of counsel who
would have been mentoring new attorneys to continue their work as
decision writers.
If confirmed, I would continue the Board's existing training
program for new attorneys, which has proven effective, as discussed
above. I would continue to assess and adjust our training programs
based on feedback received from our new employees and the Judges, as
well as from our Veterans Benefits Administration, VA Office of General
Counsel, and U.S. Court of Appeals for Veterans Claims stakeholders.
c. Furthermore, this letter states that the Board has yet to
release information on the number of new attorneys who have left the
Board--either voluntarily or involuntarily. If you are confirmed, do
you commit to providing this Committee with this information
expeditiously along with a plan for how you intend to address retention
issues?
Response. Yes. As reported to Committee staff on October 3, 2017,
of the 320 attorneys hired by the Board since September 2016, 16
attorneys have voluntarily left the Board.
Question 4. Veterans Appeals Improvement and Modernization Act of
2017
The appeals volume at the Board of Veterans' Appeals has increased
with the recent increase in claims decisions. In my office alone, there
are 52 veterans that have pending appeals cases. I am proud to have
worked with Chairman Isakson and my democratic and republican
colleagues on the Veterans Appeals Improvement and Modernization Act of
2017, which as you know, was signed into law on August 23rd. This
bipartisan reform will usher in a new era of transparency and
communication for veterans and their families--ensuring veterans are no
longer bogged down by a cumbersome process that denies fair and just
consideration of their appeal.
a. This legislation will take approximately 18 months to implement.
What will you do to streamline the processing of appeals currently
pending within the Board of Veterans Appeals to allow this new
legislation to be implemented smoothly?
Response. Thank you for working to pass this historic act. If
confirmed, I am committed to implementing the recently enacted
legislation for maximum effect. The Board has been preparing to
implement this new legislation since before enactment. An important
part of implementing the new law is addressing as many legacy appeals
as possible during the 18-month implementation period, and the Board is
committed to doing that.
If confirmed, I would continue to work with the Veterans Benefits
Administration (VBA) and our Veterans Service Organization (VSO)
partners as we work to resolve legacy appeals, to include via opt-ins
in the legislation and VBA's Rapid Appeals Modernization Program (RAMP)
initiative, which I believe will directly impact legacy appeals and
provide early resolution to Veterans.
If confirmed, I would work closely with Digital Service VA to drive
earlier implementation of improvements in technology to provide tools
to the staff, such as Caseflow reader. I intend to issue a new decision
template, which will provide streamlined and understandable decisions
to Veterans and will allow for more efficient drafting of decisions. I
would also explore opportunities to streamline decisions to Veterans
through specialization of the attorney staff, triaging within the
regulations guidelines, and case review process improvements. I would
also continue the Board's ongoing work to focus more of the Board's
resources on our direct Veteran-facing mission of issuing decisions to
Veterans.
b. What will you do, should you be made Chairman, to make board
hearings more readily available?
Response. The Board is committed to its mission of holding hearings
and deciding appeals. If confirmed, I would continue to encourage more
widespread use of video teleconference hearings, and pledge to explore
technological enhancements that could add efficiency to our hearing
processes. Additionally, in FY 2018, the Board plans to provide over
25,000 hearing opportunities to Veterans waiting for a Board hearing
and will continue to assess whether additional hearings can be added
throughout the year. If confirmed, I plan to work with VBA and VHA
leadership and Digital Service VA as well as our VSO and Veteran
representative communities to explore expanding video hearing
opportunities to Veterans.
Chairman Isakson. Well, thank you very much, Ms. Mason, and
thank you very much on your openness on the suicide experience
with your father and your brother. As you know, part of what we
focused on in our last meeting here was the Secretary's desire
for us to all become more open about that subject and do
everything we can to prevent suicide. It seems the only way we
can do that is when all of us are willing to be forthcoming
with our experiences. Thank you very much for doing that.
Veterans' appeals. You acknowledged the legislation that we
just passed. Do you believe you have the tools with that
legislation to expedite and clean up the legacy appeals that
exist before them today?
Ms. Mason. Yes. Thank you for that question, Mr. Chairman.
Yes, I do. The Board is preparing--has been preparing, since
before your passage of the Act, to implement the new framework,
and in that, part of that preparation is working with our
partners at Veterans Benefits Administration to implement the
opt-ins that are created in the law. We believe that those will
directly impact the legacy cases and provide early resolution
for those veterans.
Additionally, the Rapid Appeals Modernization Program
(RAMP) initiative that Veterans Benefits Administration is
planning to roll out in joint preparation with the Board later
this month will also impact those. We believe that the
resources at the Board are currently strong enough to support
both frameworks, both working the legacy appeals and the new
framework appeals.
Chairman Isakson. I am glad to hear that answer and I think
Senator Tester would agree with me. The most important thing we
can hear in this Committee is that we improve our appeals
process and get that problem straightened out, and I think you
are the type of person that can do that.
Ms. Glynn, you were at PricewaterhouseCoopers. Is that
right?
Ms. Glynn. Yes, I was.
Chairman Isakson. Enterprise integration is a PwC term. You
know, they come and evaluate your company and say you need more
of this and you are trying to figure out what it means. What
does it mean at the VA?
Ms. Glynn. Well, that is a good question. Thank you very
much for asking, because I think it is not transparent. I
appreciate that.
I have a standard answer and I will tell you what I think
the answer is, effectively. It is the many years--it is a very
large and complex agency, as you all know, and the Office of
Enterprise Integration was really designed to provide a
mechanism to bring together all of those management functions
across the agency. In that function, there are many, many
capabilities to deal with performance management, risk
management, setting the agency strategic plan, measuring that
strategic plan.
Also included is the Joint Executive Committee for the VA/
DOD interaction policy office, data governance and analytics,
as well as the modernization function that is charged with
oversight for enterprise initiatives, including the initiative
you just asked Ms. Mason about, to verify, validate, and make
sure that those are delivered per their proposed
specifications, the outcomes that are achieved, and they are
delivered on time and on budget.
Chairman Isakson. Well, I hope--I think the VA is the
second-largest employer in the Federal Government, if I am not
mistaken. You have got a huge, monolithic organization that
needs all the integration and cooperation and implementation it
can possibly get. I hope you are able to make that happen,
because it would be an important function for them to do. We
appreciate you taking on that responsibility.
Senator Tester.
HON. JON TESTER, RANKING MEMBER,
U.S. SENATOR FROM MONTANA
Senator Tester. I will kick it over to Senator Hirono. I
may submit my statement for the record and wait until last for
questions.
Chairman Isakson. Senator Hirono.
HON. MAZIE K. HIRONO, U.S. SENATOR FROM HAWAII
Senator Hirono. Thank you very much, Senator Tester.
This is for Ms. Mason. How many attorneys are there at the
Veterans' Appeals Board?
Ms. Mason. Currently we have approximately 700 attorneys.
Senator Hirono. And you have a backlog of about 150,000
cases. I know that you are aware that there is a move to
increase the number of cases that each attorney is supposed to
complete, from 125 cases annually to 169 cases. If my math is
correct you have 700 lawyers. That gets you to 118,000 cases
that would be completed once this new standard is implemented.
Is that how you all came up with a number of cases that each
lawyer should complete?
Ms. Mason. The evaluation for determining the attorney
productivity has been in progress for the past--for all of
fiscal year 2017, and we started off fiscal year 2018, you are
correct, with a response--a request to our attorneys to do an
extra case per week.
The productivity standard we currently have in place that
asks our attorneys for 169 a year also allows for deduction of
leave and holiday time factored in. Based on the data that we
have from previous years, we expect that, actually, the
attorneys will be producing approximately 144 decisions per
person this year.
Senator Hirono. Do you use paralegals?
Ms. Mason. We do not at this time.
Senator Hirono. Since not all the appeals are as complex,
they are not all equal, would you consider using paralegals to
address some of the backlog and get rid of some of the so-
called easier cases?
Ms. Mason. Thank you for that question. That is actually
one of the areas that I am looking at as re-engineering the
Board's processes, and figuring out where we can get some
impact to those less-complex cases. So, yes, that is something
that I, if confirmed, would look at.
Senator Hirono. I think it makes a lot of sense, with a
150,000-case backlog, to basically triage the kind of cases
that you have and move things along. It is the workload for
your lawyers, because they are unionized, is that a subject of
negotiations with the union?
Ms. Mason. It is. This past year we have sat down at the
table with our union partners several times. At the beginning
of fiscal year 2017, we sat down and agreed to a non-
productivity standard, at their request. We tried that for one
quarter and we lost approximately 4,000 cases, so we
implemented a lesser standard than we had before. We routinely
sit down and speak with them and assess how that is doing, get
feedback from our union partners on how that is going.
If confirmed, I would continue to do that going forward. I
think it is very important to have a strong, open,
communicative relationship with our labor partners.
Senator Hirono. As far as the performance standard and the
number of cases each attorney is supposed to handle every year,
that would be something that you would work out with your union
representatives.
Ms. Mason. Absolutely. Thank you for the question. That is
an area that we always must assess continually, to gain the
appropriate work-life balance while we are ensuring that we are
serving veterans to the best of our ability.
Senator Hirono. The Congress passed a benefits package for
the Filipino World War II veterans and we are losing them by
the day. There were some 18,000 claims have been approved and
24,000 were denied. Can you just briefly say why these claims
from the Filipino World War II veterans were denied?
Ms. Mason. Thank you for that question, ma'am. I would have
to look very closely at those cases, and I am happy to do that
and get a response to you. We do have an excellent Office of
Quality Assurance who can assess that very quickly for us and I
can get a response to you.
Senator Hirono. Thank you. I am running out of time. For
Ms. Glynn, Senators and I have been working with the VA and
stakeholders on a bill called the VETS Act, which allows for
basically telemedicine. Can you share your assessment of the
VA's use of telemedicine, because we were told that you did not
need the legislation; you have the authority to go ahead and do
this, which is really great. Can you tell me how things are
going? Or once you get confirmed.
Ms. Glynn. If confirmed, I would be able to assess the
progress on that, but at this point I would have to look into
it more.
Senator Hirono. Put that in your----
Ms. Glynn. Thank you.
Senator Hirono. Thank you very much, Mr. Chairman.
Chairman Isakson. Thank you, Senator Hirono.
Senator Rounds.
HON. MIKE ROUNDS, U.S. SENATOR FROM SOUTH DAKOTA
Senator Rounds. Thank you, Mr. Chairman. I would like to
follow up a little bit more with the direction that Senator
Hirono was going with regard to the claims backlog. With
150,000 claims in the backlog, 700 attorneys working on it, I
am just curious, do you know right now what the average number
of new claims coming through is that we are processing?
Ms. Mason. I would have to--thank you for that question,
sir. I would have to check with our--my partners at Veterans'
Benefits Administration, but I believe that we receive
approximately 1.4 million claims per year. Of that amount,
approximately 13 percent are appealed to the Board of Veterans'
Appeals.
Senator Rounds. Right now, if that runs, it means that if
you were looking at it on a chronologic--and I recognize that
some of these are a lot older--but you have got basically a
year's backlog of work, in terms of it would constantly be 1
year behind, based on the current plan. Fair--am I--I know that
some of these are considerably older than that and some of them
are newer than that. Basically, that is one way to analyze it,
is you have got a year's worth of work in the backlog.
Ms. Mason. Yes, that is one way to analyze it, sir. That is
correct.
Senator Rounds. OK. You have worked in this for some time.
I mean, your background is there. If there was one thing that
this Committee could do to help you, in terms of the backlog,
and in terms of a more appropriate and reasonable expectation
of veterans to have their claims heard, and if there are
misunderstandings, their claims to be expedited in terms of a
response, what would it be? Is there something more that we
should be looking at besides what we have already been able to
do with our legislation that we passed this year?
Ms. Mason. Thank you. Thank you for the opportunity to
address that, Senator. You know, the Veterans Appeals Act, the
historic legislation that you passed this year, I think will
have a great impact. We are in the process of implementation
for that, and so we do not yet have the numbers of how that is
going to impact our legacy appeals.
One area that the Board is working on preparing for the
future that could possibly be of some assistance is our docket
legislation for the current legacy appeals. The Board must work
those cases in docket order, and that does restrain us somewhat
to get to the triaging aspect that Senator Hirono was asking
about previously.
Senator Rounds. I would just like to follow up with that,
because that is kind of where I was going. The issue of triage
seems to me to be an important one and a factor that needs to
be brought into this discussion. Do you feel that there may
very well need to be more work done with regard to allowing the
triage process to, more appropriately at an earlier stage,
separate out those which are easier to assess versus those that
are not? Is there something more that you are seeing that we
might have to do?
Ms. Mason. Thank you, sir. If confirmed, I am going to
assess that very closely and will determine whether there is
something there further. I have been in the system for a while,
as you noted, and I do think that there is possibly more room
there for action. At this point, until I assess it more
closely, I really cannot directly respond, but I am happy to
follow up with you, sir.
Senator Rounds. Thank you. Mr. Reeves, you have a
background which includes a lot of work at the State level. I
appreciated the opportunity to visit with you and to learn
about your interest in providing services, in particular.
I just want to go back in and talk a little bit about, like
in South Dakota right now, we have got a group that is very
interested, in the eastern part of our State--we are 400 miles
wide and 200 miles north to south. We have got the Black Hills
National Cemetery, located near Sturgis, SD, in the very far
western part of the State. But there are some local
stakeholders in the eastern part of South Dakota who are
interested in partnering with the VA in order to establish a
cemetery in the eastern part of South Dakota.
What are some of the VA's resources or programs that could
be available for them? I know that you have got a background on
it and so forth, so let me just give you an opportunity to
share a little bit of that knowledge with the Committee, in a
case like this.
Mr. Reeves. In a case like what you described, Senator, the
Veterans Cemetery Grants Program is a possible avenue to--you
know, for local communities and States to be able to pursue.
Also, I have a little bit of knowledge in terms of the rural
health--I am sorry, Rural Burial Initiative, and I call it
that. I think NCA calls it something a little bit different. It
allows the establishment of burial grounds in remote locations
or locations where we have what I would call pockets of
veterans that have to travel long distances.
One of the things, if confirmed, that I would like to
really look at is our methodology as to how we determine where
those veterans are and how we reach out to them.
Senator Rounds. Thank you. Thank you, Mr. Chairman.
Chairman Isakson. Thank you, Senator Rounds.
Senator Brown, we have someone from Ohio on the panel.
HON. SHERROD BROWN, U.S. SENATOR FROM OHIO
Senator Brown. I appreciate that. We have already met and
had good conservation, so thank you. Senator Tester, thank you.
Ms. Mason, thank you. I enjoyed the conversation with you
in my office last week or so. Talk about the Board's decision
to switch from credits to cases, what that means.
Ms. Mason. The approximately--about a year and a half ago,
the Board switched from tracking cases by credits, which was a
formation of decisions and decision remands to decisions,
because that is what our output is measured, on our oversight,
and that is really what the veterans are waiting for is those
decisions. The credits did not accurately reflect the amount of
decisions that were presented by the attorneys.
Senator Brown. OK. I want to explore a little bit more,
from Senator Hirono and Senators Rounds question, too, on the
backlog. In your pre-hearing questionnaire you said it takes 8
to 10 hours to do a de novo review of a case and then draft a
decision. Is that the average for simple appeals or complex
appeals, or sort of all of them?
Ms. Mason. That is an average. Thank you for the question,
Senator Brown. That is an average based on the experience level
of the attorney as well as the case. A more senior attorney
might work a simple case quicker than that, but for the regular
type of case that they would receive, at their grade level that
is an approximate average.
Senator Brown. Do you have lawyers in place that you sort
all--would they always--are they always assigned complex cases
to? Do some lawyers specialize in just complex cases or it is
more random than that?
Ms. Mason. Thank you for the opportunity to respond to that
question, Senator Brown. Currently we assign the cases across
our attorney core, depending on the grade of the attorney. The
judges do direct assignments to their attorneys. If confirmed,
one of the areas I do intend to look at is exploring the
opportunity for specialization with our attorney core. I think
that is something that we can work some efficiencies on.
Senator Brown. Do you have enough--does the Board currently
have a staff it needs to--basically to remove this backlog, to
catch up?
Ms. Mason. Thank you for the question, Senator Brown.
Congress has been very gracious in providing funding for the
Board. In fiscal year 2017 they allowed us to hire
approximately a third more personnel, which was primarily
attorneys for our direct facing, as well as some judges. At
this time, I believe that we do have enough. Again, I am
assessing--if confirmed, I will be assessing the implementation
of the veterans--the historic legislation with the Improvement
Modernization Act, compared to the legacy cases, and I will
work with this Committee and assess our workload, and if I find
that we need additional resources I will work with the
Administration and the Department and this Committee in seeking
those.
Senator Brown. Thank you, and thank you, all three of you,
for wanting to serve. Ms. Glynn, thank you. Mr. Reeves, I
appreciated how you talked about how, when you were the one at
home, you understood service better, and I think we all thank
those who serve. We do not often enough thank those who are
home while those who serve and the sacrifice they make, so
thank you for pointing it out in such a personal way.
Let me ask you one question, Mr. Reeves. Under the
administration's long-range plan, veterans eligible for burial
at Arlington National Cemetery, will they be able to be buried
there? Talk, if you would, give us a couple of minutes on
additional expansion necessary, with capacity, all that.
Mr. Reeves. Now, Senator, of course, Arlington, you know,
is under the management of the Army, not the National Cemetery
Administration, and, if confirmed, I will do everything
possible to work with the Army and any other individuals that I
may need to, to assist in any matters they may need.
Senator Brown. OK. Thank you. Thanks, Mr. Chairman.
Chairman Isakson. Thank you, Senator Brown.
Senator Cassidy.
HON. BILL CASSIDY, U.S. SENATOR FROM LOUISIANA
Senator Cassidy. Thank you all for volunteering to serve.
Ms. Glynn, I really enjoyed our conversation, and it was such a
pleasant conversation I did not ask any of the questions that I
should have asked.
As I mentioned then, I am very interested in kind of a
granular understanding of what happens at a particular VA. Not
the VA in total, which has a spectrum of results, which average
out to a mean, but this VA, for this program. I gather that
under your office, analytics and statistics are part of your
responsibility.
What could be done for individual members, for him to know
the VA in Atlanta--and I am sure there is one in Atlanta--what
are the specific outcomes of their opioid addiction treatment
program versus the one in Montana, the one in New Orleans,
Freeport, or Alexandria? Can we get that granular data to know
the performance of a particular VA facility in a particular
program?
Ms. Glynn. Thank you, Senator, for the question. I will
answer that I am aware of the work that is being undertaken by
the Veterans Health Administration currently, to be more
transparent, per the Secretary's priorities related to
performance. They are currently working through publishing
ratings per hospital location that will allow a lens into
performance at each hospital, by specific service area. There
will be a comparative factor, which will be by hospital, and
that will be against the market, so against other performing
medical centers in that market area.
Senator Cassidy. I have seen those analyses, and I have a
guy who does systems for DOD looking at them with me, and, you
know, I am kind of used to looking at hospital data, and I
struggled to kind of figure it out. As opposed to a
straightforward, if somebody goes into an opioid addiction
treatment program in one of four States, what is the likelihood
that they are truly not going to come back. You know, kind of
plain English, if you will. This many go in, this many
successfully complete, this many never again have to be seen
for the addiction problem, these are followed chronically, and
these are readmitted.
Just--that would be helpful to us who do not have
backgrounds in perhaps hospital administration, because it
seems like you almost have to to understand that which is
coming out. Your thoughts on that? Is that possible?
Ms. Glynn. Senator, thank you. I think there is great
opportunity to improve the outcome statements related to some
of the delivery of services, and that is something that I know
is a VHA-related program. Part of what, if confirmed, the role
that I would have would be to assess their ability to deliver
on those promises of how they have designed those programs and
meet with the Secretary's priorities about publishing results.
Based on specific requirements and based on guidance that
you may provide, you know, we can work on validating that that
information is available and that it can be published and it
can be published in a way that is in layman's terms and easy to
navigate.
Senator Cassidy. Now there are a lot of qualifiers in what
you just said, and obviously you have not yet been confirmed
and you are going to have a boss who is going to give some
certain instruction. I totally get that. Let me just put on
record--and I know you agree with this so I am not trying to be
unpleasant--let me put on record, we would like that. I think
Tester--when I read about the VA in Montana, it seems like it
works pretty well, but when you look at some VAs across the
country, not so. And it seems like we should be able to look at
the VA in our community without having to kind of ``what does
that mean?'' sort of thing, particularly on those which are the
most prominent right now, opioid addiction being so prominent.
We could think of others but that immediately comes to mind.
Well, again, thank you all for volunteering for your
service--service to our country. Thank you, Ms. Glynn, and I
yield back.
Chairman Isakson. Senator Sullivan.
HON. DAN SULLIVAN, U.S. SENATOR FROM ALASKA
Senator Sullivan. Thank you, Mr. Chair, and I want to
congratulate all the nominees, and thank you for your
willingness to serve. They are really, really important
positions, really important agencies, so thank you.
Mr. Reeves, you and I had the opportunity to have a good
conversation last week, and I had the opportunity, in that
discussion, to kind of get a broad overview of the mission and
what you are going to be focused on, and then raised a couple
of Alaska-specific issues that related to our two veterans'
cemeteries and some of the other kind of cultural dynamics that
deal with burial issues in rural and tribal communities.
If confirmed, can I make sure you--that I get your
commitment for you to come up to Alaska, like Secretary Shulkin
has, and he is going to be back up there and work with me on
some of these issues that are a little bit more distinct but
also, I think, very important. As I mentioned, you know, the
Alaska native community, veterans community, we have a very
strong ethic of service and very, very proud veterans, and
would love to get you up there to help us with some of these
challenges.
Mr. Reeves. Well, Senator, first of all, if confirmed, can
I get your commitment to invite me to come to Alaska?
Senator Sullivan. I think that is what I just did.
Mr. Reeves. I think so, sir. Sir, if confirmed----
Senator Sullivan. And I think you said yes, right?
Mr. Reeves. If confirmed, sir----
Senator Sullivan. Correct?
Mr. Reeves [continuing]. I will want to go to as many of
our cemeteries as I possibly can because I am a person who
works on the ground, and that is where I come from. If I am
able to, that would be a pleasure for me to do that, if
confirmed.
Senator Sullivan. Great. Well, we will just make sure that
you are able to, when you are confirmed, and then you can do
that.
Let me ask Ms. Mason, you know, the issue of the veterans'
appeals is something that we have been working on for quite
some time, and I think, again, you are very qualified. You have
been seeing these issues for, you know, a good part of your
career. As you can imagine, just the length of time that some
of these appeals takes is exhausting, for everybody, but in
particular the veteran who is waiting.
Give me your sense, given your experience and how you have
worked on this for a while and for a long time, what do you see
the key issues that need to be addressed in your new position,
if you are confirmed, and are you in agreement with some of the
legislation that we have been working on, very bipartisan, that
helps with the backlog, which is a very big issue for the VA?
Ms. Mason. Senator, thank you for the opportunity to
address that issue. Yes, I am very much supportive and thankful
of the legislation you have worked very hard on to pass this
year to help us out. I agree with you, sir. Our veterans wait
much too long for their decision.
If confirmed, I intend to look very closely and look for
opportunities to re-engineer our process as a board, from the
veteran's perspective. One of the first things I intend to do
is issue a new decision template. We have not upgraded our
decision template in 20 years.
Senator Sullivan. What does that mean, exactly, a decision
template?
Ms. Mason. Our current decision template, where we--that is
what we use to decide the cases--is very long and involved, and
it does not serve the veterans. It does not get the clear
answer to the veteran right up front. That is one of the things
I want to address with our staff, if confirmed.
The other area where I intend to work, if confirmed, is
with our VBA partners and our VSO partners. Our VSO partners
have been extremely important in this appeals modernization
initiative, and I think that we can continue to work with them
in other areas as we move forward. Our VBA partners, with the
opt-in initiatives in the legislation, as well as the new
initiative RAMP, will be able to give the veteran the choice to
opt out of the legacy into the new framework, to get earlier
resolution, allowing the Board to take the next year and a half
to really--or, actually, it is about 15 months now--to focus on
those appeals that the veteran has been waiting the longest
for, and if confirmed I am committed to doing that, sir.
Senator Sullivan. Great. Good. Well, we look forward to
working with you on that very important issue.
Finally, Ms. Glynn, I am not sure this would be in your
kind of area of responsibility, but one of the things that I
think Dr. Shulkin has shown a lot of initiative on, and in some
ways even courage on, is the idea of the focus on trying to
integrate more appropriately DOD and VA electronic health
records. That is a big, big undertaking. Can you give me a
sense of that, and is that in your kind of purview with regard
to the assistant secretary position, and how can we help on
that, and what should we be, in our oversight capacity, looking
for with regard to how that process--which is not going to be
easy--how that process goes?
Ms. Glynn. Thank you, Senator, for the question. Well, if
confirmed, the role I would have would have two points of
intersection with the electronic health record implementation
and its interaction with Department of Defense, the first part
being oversight for the Joint Executive Committee for the VA/
DOD working group, which is more on the policy side, to make
sure there is appropriate policy interaction, and just the
framework in place for sharing of resources and moving that
part forward.
The second piece is a little bit more on the execution of
the program itself----
Senator Sullivan. Good.
Ms. Glynn [continuing]. Related to the responsibility for
the modernization activities of the agency. The electronic
health record is one of the key initiatives that would be under
modernization, so that responsibility for an independent review
and assessment for the Veterans Health Administration's
implementation of the electronic health record system, so we
would be able to provide kind of an independent validation.
In terms of your question about what can the Committee do,
you know, I think as that VHA team, that program office that
they have now stood up, develops their project plan and their
concept of operations for implementation, that is something
that I would anticipate the Committee would want to see and to
be briefed on that.
Senator Sullivan. Good. Will you commit to making sure this
Committee is aware when it is going well, and when it is not
going well, and just make sure we hear the good news with the
bad news on that? It is a big, big undertaking. I think it is
incredibly important. I applaud Secretary Shulkin for doing it,
but again, it is not going to be easy and he is going to need
all of our support. Will you let us know the good news and the
bad news on that?
Ms. Glynn. Yes. If confirmed, I will, yes.
Senator Sullivan. Good. Thank you. Thank you, Mr. Chairman.
Chairman Isakson. Thank you, Senator Sullivan.
Senator Tester.
Senator Tester. Thank you, Mr. Chairman. I want to thank
all of you for being here. I appreciate your opening
statements, although I did not hear yours, Ms. Glynn, but that
is my fault, not yours. I appreciate your opening statements.
They were very good.
I am going to start with you, Mr. Reeves. The good news is
by 2018, 92 percent of the veterans will have access to burial
options within 75 miles of their home. That is good news.
Unfortunately, ``most veterans'' does not necessarily include
veterans in my State and other rural States.
In 2014, we opened the Yellowstone National Cemetery, which
was a good move to help us address burial needs for veterans in
Montana. The real question is, though, is we cannot do that
everywhere, especially in rural States--Alaska, South Dakota,
Montana, and others. What can we do? If confirmed, what could
you do to address the burial needs of veterans in rural States
around this country, including Montana?
Mr. Reeves. Well, currently, as I understand, in the
strategic plan for NCA, there is a focus on--and you have
accurately articulated a lot of that--initiatives to extend the
burial options to rural areas. The Rural Cemetery Initiative,
with rural burial grounds, is one of the items that is in that,
along with the State Cemetery Grants Program.
If confirmed, one of the areas that I think we need to do,
that I will want to focus on, as I had mentioned to one of the
other members earlier, is a methodology of how we determine
where those veterans are. I think that is so important to being
able to adjust our programs to be able to serve our rural
veterans.
Senator Tester. Once you find out where they are at, then
what do you do for burial, if they are further than 75 miles
away from a veteran cemetery?
Mr. Reeves. If confirmed, I will have to take a look at
exactly how they are reaching those veterans now, Veterans
Cemetery Grants Program and/or the Rural Veterans Initiative
and how that is being implemented, and look at ways to expand,
first of all, those programs and any additional programs that
may be able to support those local communities.
Senator Tester. All right. I know you have got some
experience working with tribal governments. We have got seven
reservations in the State. Can you tell me how you would do
outreach to those folks----
Mr. Reeves. Well----
Senator Tester [continuing]. And if it would be any
different than anybody else?
Mr. Reeves. Well, first of all, Senator, it would be
different, based upon cultural needs and preferences, and, you
know, religious considerations, and where those tribes and/or
communities are. We have to be sensitive to what those
communities both believe and what those communities need, based
upon those beliefs.
I know that you are concerned with tribal governments.
Senator Tester. Yes.
Mr. Reeves. I, too, am, you know, just because I am not out
West does not mean that I do not have tribal issues, with
Choctaw Nation and that.
Senator Tester. Yeah. Well, we will certainly help you in
that regard, if you need help.
Dr. Glynn, you know, we talked a bit about the Choice
program. We talked a bit about we are getting figures. One day
it is going to last for 3 months, 1 day it is going to last for
7 months, and the next day it is going to last for 6 weeks. It
is really tough for the Chairman, myself, and Members on this
Committee to be able to plan and predict when we do not get
good, solid numbers.
I think this is in your bailiwick, and I would like to know
what you can do to increase projection integrity, if you are
confirmed for this position.
Ms. Glynn. Thank you, Senator Tester. As I mentioned
before, part of--you know, I have mentioned a few times in some
other responses I have given, we have this modernization
program that is underway, and there are multiple initiatives.
One of those key initiatives is Community Care. Therefore, it
would fall under the role, if I am confirmed, to have oversight
into how that program and that project is being delivered, what
is the concept for that, from a project standpoint, including
forecasting, and we can pay specific attention to the
forecasting, the budgeting, and the design of those processes,
as well as with the role that I would have over data governance
and analysis, from an enterprise perspective, to validate the
data that is being used by the program.
Senator Tester. It is your belief that the modernization
efforts that are in play right now will fix this problem of bad
forecasting--and it is bad.
Ms. Glynn. I think it is something for modernization, that
there is a new program design underway. It does not exist as of
yet so I would not commit that the plan has been delivered and
fully vetted at this point. I think that is something that is
under our purview, to be the vetting agent for.
Senator Tester. Sounds good. Can you give me one more
question, Mr. Chairman.
Chairman Isakson. Sure.
Senator Tester. All right. It goes to Ms. Mason. You talked
about, you know, 155,000 veterans that are waiting for appeals.
You talked about the fact that you have got 700 attorneys and
you have not used paralegals yet but you might, if you are
confirmed. It depends on how things work.
It does not look to me like it is going to be possible to
get those 155,000 down to zero. Tell me why I am wrong.
Ms. Mason. Thank you for the opportunity to address that
question, Senator Tester.
I am a little bit of an optimist. Actually, I am a pretty
big optimist when it comes to those things, and I think that
with the historic Act that you all helped pass and we got
signed, those opt-ins that are already in the Act, the early
act says opt-ins that are a part of the Act, as well as the
RAMP program that we are rolling out this month, will offer
those choices to the veterans, to move their cases from the
legacy into the new framework.
We are working closely with our VSO partners on this, and I
think through that dialog and through making veterans aware of
that, we can move some of those cases into early resolution.
Therefore, I think that the Board can reduce our legacy backlog
to--I do not know to zero, but close. Thank you.
Senator Tester. OK. Well I will tell you, I look forward to
that day. We will do a backflip together. I think that we
passed a good piece of legislation. I know you are familiar
with it. You addressed it just now. I would just say that if we
get this one done, in your position, you need to get big kudos
for it, because we have been talking about it on this Committee
for almost 11 years. Johnny has probably been on it longer than
that; it has been an issue we have dealt with every Congress
since we have been on here. Thank you for that.
One last thing. I did not hear your opening statement, Ms.
Glynn, but you talked about your families yet you did not
introduce them. I would love to see their faces if I might. We
can just go right down the line.
Ms. Glynn. Certainly. Senator Isakson was kind enough to
ask for my mother to stand earlier.
Senator Tester. Sorry about that.
Ms. Glynn. This is my mother, Jo-Ann Serrani.
Senator Tester. That is what happens when I come late. Good
to have you here.
Mr. Reeves. I mentioned my wife and my family but my wife
did not travel with me on this trip. I would otherwise like to
introduce Les Beavers, the Executive Director of the State
Directors of Veterans Affairs, a very close friend of mine, who
is here to support me.
Senator Tester. I think I have seen him a time or two.
Mr. Reeves. I think you have, sir.
Ms. Mason. Senator Tester, my husband, Lieutenant Colonel
Brett Mason, U.S. Air Force Retired, and my youngest son,
Trevor Mason, a high school senior.
Senator Tester. Great. Thank you all very much for being
here. I appreciate you putting yourself up for these positions.
Thank you, and thank you, Mr. Chairman.
Chairman Isakson. We appreciate all of you being here, and
we congratulate you. Ms. Mason, when you get that backflip
scheduled for Senator Tester will you please give us a lot of
notice. [Laughter.]
Ms. Mason. I will, sir. Thank you.
Chairman Isakson. That is one backflip I want to be there
to see.
Ms. Mason. Thank you, Mr. Chairman. Clearly I am going to
have to start working on some limber moves there.
Chairman Isakson. We will be working closely to get to a
markup as soon as we can. As soon as that is posted you will be
notified of that. We appreciate very much your being here
today, and thank you for your testimony.
We stand adjourned.
[Whereupon, at 3:25 p.m., the Committee was adjourned.]
A P P E N D I X
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