Legislative and Personal Affairs Update for September 2010

Compiled by Col Jim Eubanks

Following are some articles which may be of interest to MOAA members and other veterans:

Military Compensation Review Update :

 On 3 AUG the Senate Armed Services Committee heard testimony from former Secretary of Defense William Perry and former National Security Adviser Stephen Hadley, chairmen of the Quadrennial Defense Review Independent Panel. Congress created the panel last year to provide a bipartisan assessment of the Pentagon's 2010 Quadrennial Defense Review (QDR). Overall, the panel's findings call for an increase in defense spending. It concludes that the military currently does not possess enough capabilities to meet national strategic goals. The Panel also concluded that "while the volunteer military has been an unqualified success, there are trends that threaten its sustainability" citing "recent and dramatic growth in cost". The Panel recommends establishing a National Commission on Military Personnel, similar to the 1970 Gates Commission, which proposed the all-volunteer force, to map out compensation and retirement benefit reforms. The Military Officers Association of America (MOAA) acknowledges the need to control costs, but take's exception to some of the panel's claims. Once again the late 90's were used as a base to project personnel cost growth. This baseline is disingenuous at best. Personnel spending hit rock bottom in the late 90's before a recruiting and retention crisis prompted Congress to plus up personnel spending (including the creation of Tricare For Life). MOAA firmly believes the period of rapid growth on personnel spending is behind us. Congress must remain prudent when considering compensation and benefit reform. The all-volunteer force has remained resilient in the midst of almost 10 years of war, and defense reforms must preserve the most precious resource in our nation‘s arsenal, its people in uniform. [Source: MOAA Legis. Up 6 Aug 2010 ]

 Gates Announces Budget Initiative, Intent to Retire

In a recent interview Secretary of Defense Robert Gates announced his plans to retire sometime next year - he has been in charge of the Pentagon since late 2006, serving under both President Bush and President Obama.

The announcement comes on the heels of his plan to reallocate $100 billion of the Defense budget over the next five years by streamlining the Pentagon's massive bureaucracy and tightening efficiencies.

Gates intends to implement this plan well before his departure. In a recent memo to military department secretaries, Gates directed "a series of initiatives designed to reduce duplication, overhead, and excess, and instill a culture of savings and restraint across the DoD."

Some of the key initiatives are:

During his news conference, Gates described his initiative as just the beginning, insisting every aspect of the defense budget will be reviewed -- to include increases in retiree health fees -- stating, "There are no sacred cows."

It's too soon to be sure what the Secretary may propose for health fees in the FY2011 budget, but the 10th Quadrennial Review of Military Compensation may offer one possible scenario.

We will follow any new initiatives closely to ensure they continue our strong support for our already overburdened military people and their families and don't negatively impact our nation's military readiness. [Source: MOAA Legis. Up 20 Aug 2010 ]

NDAA 2011 Update :

 The full Senate plans to consider its version of the National Defense Authorization Act (NDAA), S.3454, in September upon return from a month long summer recess. In addition to a 1.4% across-the-board pay raise for all members of the uniformed services, S.3454 would provide full funding of Tricare and include language barring Tricare fee increases through FY 2011. The House has already approved a 1.9% pay increase so the difference will have to be worked out in conference. The Senate bill would also authorize extension of Tricare coverage for eligible dependents up to age 26 and direct DoD to send 6,000 National Guard troops to the US-Mexico border. And it contains two explosively controversial issues—repeal of the 1993 law prohibiting homosexual conduct in the military and provision of abortion services in the military health system. Any one of these provisions could make progress through the Senate difficult. Though the bill does not at this time expand concurrent receipt (CR) or repeal the offset of SBP against DIC compensation, it is likely that these amendments would be offered when the measure comes to the full Senate. A provision extending concurrent payments to medically retired personnel with less than 20 years of service was stripped out of recently-passed H.R.4213, The American Jobs and Closing Tax Loopholes Act. It's anticipated that this legislation will be offered as an amendment to S. 3454. Even if the Senate begins work in mid September it may be quite some time before we see a final bill. A joint conference must still be conducted with the House to iron out differences between the two chambers. The House version of the FY 2011 National Defense Authorization Act (H.R.5136) has been in place since it passed on 28 MAY. [Source: NAUS Weekly Update 6 Aug 2010 ]

 SVAC Update :

 The Senate Veteran Affairs Committee (SVAC) on 5 AUG marked up and approved the following legislation, some of which were amended. The measures will now go before the whole Senate for a vote, and will have to pass the House before they become law:

  S.3107, which would increase the compensation rates for veterans with disabilities as well as the dependency and indemnity compensation rates for the survivors of certain disabled veterans.

  S.3234, which would create new programs aimed at assisting veterans with employment training and placement services, especially those who have served in Operation Iraqi Freedom and Operation Enduring Freedom.

  S.3325, which would waive copayments for veterans using tele-health services, create an outreach program for veterans in economically distressed areas, and authorize two medical facility construction projects in New Orleans and Long Beach, California. The goal of the legislation is to improve the quality of health care and benefits provided by the Department of Veterans‘ Affairs, to increase access to health care and benefits and to authorize the construction of the two major medical facilities.

  S.3447, which would make changes and improvements to education benefits for veterans who served after September 11, 2001 by amending title 38 of the United States Code.

  S.3517, which would make changes to the disability compensation claims processing system, such as authorizing certain individuals to sign claims on behalf of individuals who are incompetent or physically incapable of signing.

  S.3609, which would extend until the end of 2012 temporary authority for VA medical disability examinations to be performed by physician contractors.

  An original draft bill that would, in addition to other provisions, amend title 38 of the United States Code regarding the Service Members‘ Group Life Insurance program‘s provision of compensation and pensions to surviving spouses of veterans in the months after the deaths of the veteran.

  Draft legislation that would authorize employees of the Veterans Affairs Department to collectively bargain on compensation issues also passed (by a 10-6 vote). The amendment was offered by Senator Sherrod Brown (D – OH), and was subsequently made into its own stand-alone bill.

 Several amendments were rejected, including attempts by Senator Richard Burr (R-NC) to have the VA cover health care expenses for Marines and their dependents who were exposed to tainted drinking water during the 1980s at Camp Lejeune, North Carolina and to cut the proposed 20% budget increase in FY 2011 at the VA‘s Congressional Affairs Office to a 3% increase. The Committee rejected the Camp Lejeune request because Senator David Akaka (D -HI) and others felt that the issue was the Department of Defense‘s to handle, since they created the problem. In other words, having VA take over DOD‘s responsibility would take away from VA‘s ability to better serve veterans in other areas. Senator Burr‘s attempt to cut the VA Congressional Affairs Office budget increase from 20% to 3% failed mainly due to the Committee‘s feeling that the office required the funds in order to better respond to Congress‘ increased interest in veteran affairs. [Source: TREA Washington Update 6 Aug 2010 ]

 VA Presumptive VN Vet Diseases Update :

 The Department of Veterans Affairs likely will begin in October to pay thousands of disability claims to Vietnam veterans with ischemic heart disease, Parkinson's disease and B-cell leukemia -- illnesses newly associated with exposure to defoliants, including Agent Orange, used in that war. A 60-day countdown to the day that VA can start compensating up to 86,000 veterans retroactively for these diseases will begin when VA publishes its final implementing regulation, which could be in early AUG. Congress sent a strong signal of support to these veterans in JUL when first the Senate and, on 27 JUL, the House passed the Supplemental Appropriations Act of 2010 (H.R.4899) which included $13.4 billion for VA to pay the first wave of compensation claims for these diseases. VA estimates this expansion of Agent Orange-related claims, which VA Secretary Eric Shinseki announced last OCT, will benefit over time more than 153,000 and cost more than $42 billion in its first decade of payments. The White House's Office of Management and Budget is near to clearing the VA regulation through its last review hurdle. Once the final regulation is published in the Federal Register, Congress will have 60 days to review and possibly block the regulation.

 Sen. Jim Webb (D-VA) showed his intent to lead that review by adding language to the war supplemental stating that, as the Congressional Review Act requires, none of the $13.4 billion can be spent for 60 days. This gives Congress time to weigh the cost and review the science behind the decision. Sen. Daniel Akaka (D-HI), chairman of the Senate Veterans Affairs Committee on which Webb serves, has scheduled a 23 SEP hearing where presumably VA officials and independent medical researchers will explain why these diseases should be compensable for any veteran who suffers from them and served even a day in Vietnam. Webb has argued the VA is interpreting the Agent Orange Law of 1991 too liberally, linking ailments generally associated with aging to wartime exposures, and committing VA to billions of dollars in added compensation payment, because Congress chose to forfeit its own oversight responsibilities. Webb notes that the 2001 decision linking Type II diabetes to Agent Orange has resulted in more than 220,000 veterans -- nearly one in 10 who served in Vietnam -- drawing disability compensation for an illness often associated with unhealthy diets, aging or family history. That Congress kept $13.4 billion in the war supplemental to pay for expansion of Agent Orange presumptive diseases dampens prospects that Webb can block the regulation at this late hour.

 Since MAR, VA has been urging veterans with these diseases, or their survivors, to file claims immediately because payment will be retroactive to the claim filing date. VA lawyers conceded to a federal appeals court last week that the department missed deadlines set in the Agent Orange Act for reviewing the latest science report and for publishing rules to expand claims eligibility to these diseases. Those missed deadlines spurred several advocacy groups for Vietnam veterans to mount a legal challenge to force VA to pay claims now. VA lawyers are arguing the delays were unavoidable, given the complexity and budgetary implications involved. Also, they told the U.S. Court of Appeals for the Federal Circuit that the impact of the missed deadlines is minimized by the fact that payments, when they begin, will be retroactive to the date original claims were filed. So the same groups who have filed the lawsuit, including Paralyzed Veterans of America and the Non-Commissioned Officers Association, can provide the relief they seek "by encouraging their members to file benefits claims immediately, thereby establishing an effective date for their benefits prior to publication of the final regulation," VA advised the appeals court. Thomas E. Riley, an attorney for the veterans, conceded that veterans who have filed claims will get retroactive payments and thus are protected. But most eligible veterans haven't filed claims yet, aren't likely to until the regulation is published, and thus are losing out on months of payments. "Out of 200,000 expected claims," the brief explains, "only 50,000 claims have been received so far. Thus 150,000 Vietnam veterans continue to be prejudiced by the VA's delay, and there is simply no basis for the VA's suggestion that petitioners 'can and have obtained' the relief they seek."

 Barton F. Stichman, co-director of the National Veterans Legal Services Program in Washington D.C., also helped prepare the lawsuit. He disagrees with Webb that VA is applying the Agent Orange law more broadly than Congress intended by compensating for diseases often associated with aging. The facts don't support that analysis, Stichman said. What scientists found for these diseases -- "sufficient evidence to suggest an association" to Agent Orange exposure -- "is the exact same characterization the National Academy of Sciences has used for all the other diseases previous VA secretaries have service-connected," Stichman said. Also, he said, "there's nothing to indicate Congress was only thinking rare diseases would get this presumptive service connection." In fact, with every fairly common disease added to the Agent Orange presumptive list -- lung cancer in 1994, prostate cancer in 1996, Type-II diabetes in 2001 -- Congress not only didn't protest but it soon codified the decisions in the law. "Whenever the VA added a new disease," Stichman said, Congress "would amend the Agent Orange Act to stick the disease into the law so that no future secretary could change the decision. They put the congressional seal of approval on the decision...That weakens [Webb's] argument." [Source: Mil.com Tom Philpott article 29 Jul 2010 ]

 Progress on TRICARE for Gray Area Retirees

On August 6 the Office of Management and Budget (OMB) released an interim final rule for the new TRICARE Retired Reserve (TRR) program. The new program permits "gray area" National Guard and Reserve retirees – those eligible for a retirement check and TRICARE when they reach age 60 – to purchase TRICARE health insurance. Gray area members who are enrolled in or eligible for the Federal Employee Health Benefit Program are not eligible for TRR.

TRR enrollment is expected to commence this fall. TRR coverage will be exactly the same as TRICARE Standard (which covers 75% of allowable charges after a deductible of $150 single/$300 family).

Unlike the current TRICARE Reserve Select (TRS) program - in which premiums are 72% subsidized by the government - gray area retirees will be responsible for paying premiums equal to the full cost of coverage. For 2010 the monthly TRR rates will be $388 for member-only coverage, and $976 for family coverage. In January 2011 the rates will rise 2% to $408 a month for member only, and $1,020 for family coverage.

Although comparable to Blue Cross Blue Shield rates under the FEHB program and military COBRA rates, the new TRR rates are substantially higher than TRS. Unsubsidized TRS premiums would be about $177 monthly for a single servicemember and $705 for family coverage.

Reservists enrolled in TRS likely will experience "sticker shock" when their TRICARE rates more than double - from $177 for unsubsidized TRS coverage to $388 under TRR - the day they take off the uniform.

Full-cost TRR premiums certainly will be substantially higher than TRS rates due to demographic differences and comparable claims experience. We have asked DoD to provide the analysis that led to the rate-setting for TRR so Guard and Reserve families will have a complete understanding of the basis for the new rates.

With enactment of TRR, Congress has provided a long-sought MOAA and Military Coalition strategic objective: the opportunity for lifetime TRICARE coverage options for actively serving and retired members of the National Guard and Reserve.

We look forward to working with government officials and Congress to ensure that the TRR program rates are fairly set and implemented in a timely fashion  [Source: MOAA Legis. Up 13 Aug 2010 ]