VVA Testimony VVA Testimony
VVA Testimony


            

 

 

Expanding Opportunities for People with Spinal cord Disabilities for Over 60 Years

 

 

 

 

 

 

Statement of
UNITED SPINAL ASSOCIATION
and
 

VIETNAM VETERANS OF AMERICA 

Prepared By

Leonard J. Selfon, Esq.
National Service Director
United Spinal Association

and

David L. Houppert
Director, Veterans Benefits Program
Vietnam Veterans of America

Before the

Institute of Medicine's Committee on Medical Evaluation of Veterans for
Disability Compensation

July 7, 2006

 



Mr. Chairman and other distinguished members of the Committee, on behalf of United Spinal Association (United Spinal) and our President, Clair Russell Hesselton, and Vietnam Veterans of America (VVA) and our President, John Rowan, we are pleased to have this opportunity to present our views with respect to the pressing issues currently facing the Institute of Medicine’s (IOM) Committee on the Medical Evaluation of Veterans for Disability Compensation (Committee), the Veterans’ Disability Benefits Commission (Commission), the U.S. Department of Veterans Affairs (VA) and, most importantly, this nation’s disabled veterans and their families.  Our organizations are most appreciative of your invitation to provide our comments in this matter, as well as for your expertise in seeking to improve vital VA programs and services. 

            Pursuant to Section 1502 of Public Law 108-136, the Commission is charged with performing a comprehensive analysis of VA benefits and services provided to compensate and assist veterans and their survivors for disabilities and deaths incurred in, or caused by, military service.  This analysis is to focus on three specific points: 

1.      The laws and regulations that determine eligibility for disability and death benefits, and other assistance for veterans and their survivors. 

   2.      The rates of such compensation, including the appropriateness of the schedule for rating disabilities based on average impairment of earning capacity.

3.      Comparable disability benefits provided to individuals by the Federal government, state governments, and the private sector.  (P.L. 108-136, Section 1678).

Once the investigation has been completed, the Commission’s findings and recommendations are to be reported to the President and Congress.  (P.L. 108-136, Section 1503).

In an effort to make the most informed recommendations possible, the Commission has contracted with the IOM to perform a comprehensive review of various elements of the VA’s veterans disability compensation program, including:

  • assessing of whether the VA’s current schedule for rating disabilities is an appropriate, valid and reliable instrument for evaluating medical impairment and determining degree of disability,

  • examining the adequacy of medical criteria used to determine veterans’ eligibility for VA compensation,

  • analyzing the current application of “Individual Unemployability” to determine whether the VA rating schedule should more accurately reflect a veteran's ability to participate in the workforce,

  • determining if the current methods for selecting the appropriate schedular diagnostic codes and the severity of symptomatology are medically sound,

  • assessing the medical criteria currently used to qualify veterans for secondary and aggravated service-connected disability, apart from natural progression of the underlying disorder, and

  • assessing how medical expertise should be used to evaluate veterans throughout the claims process.

Service of our citizens in the armed forces, particularly in a time of war, is a pledge of sacrifice, both immediate and potential.  There are mutual promises and obligations between the service person and the Government.  The citizen pledges to train, fight and risk death or injury to protect our national interests.  The Government, through the American public and Congress, has pledged to care for those who have been diminished physically, emotionally and economically as a consequence of their military service.  These reciprocal pledges are essential to maintain a strong national defense and to ensure that future generations of Americans will continue to serve to keep our nation strong and free. 

The converse of this sacrifice is that it is the obligation of the American people   to protect that citizen who served in military service, particularly those who served during time of war. That means that where that veteran has been lessened by virtue of military service, whether physically, psychologically or economically, it is the duty of the American people to provide full restoration to the greatest extent possible.  

            While there can be no dispute that the current VA compensation and pension system suffers from a wide variety of problems, its basic premise and design, to attempt to restore as fully as possible individuals that have been adversely affected by military service to the physical, emotional and financial levels they would have enjoyed had they not suffered service-related disabilities, is sound.  The predominant problems with the system, however, lie in the tools that VA adjudicators use to decide claims (such as the VA schedule for rating disabilities), as well as in their use of those tools.   

Consequently, our primary recommendation to the Committee is that the current VA compensation and pension system is fundamentally a good one; one that needs to be executed, updated, fine-tuned and funded properly.  Such being the case, there is no need to dismantle and reconstruct the essential principles of awarding service-connected compensation, including the VA’s rating schedule.  Whether this system can serve its purpose, however, will be contingent upon the accuracy of its redesign in terms of assessing a veteran’s entire disability picture (including the physical and psychological consequences of the disability) and the impact of that disability on a veteran’s capacity to earn a living wage.  

The VA Schedule for Rating Disabilities. 

            Once a veteran has achieved service connection for his or her disability(-ies), the next question to be addressed is somehow evaluating (or rating) the severity of the symptomatology to determine the appropriate level of compensation.  The VA uses what has evolved from a 1945 Schedule for Rating Disabilities, which is codified at 38 C.F.R. Part 4 (known as the “rating schedule”). The rating schedule is designed to compensate veterans based on the average impairment of their industrial (or earning) capacity.  Explained simply, the rating schedule is a collection of disabilities, categorized by body systems, that delineate sets of different symptoms in an increasing order of severity.  Percentages of disability are assigned to each level of symptoms from zero (non-compensably disabling) to one hundred percent (totally disabling) in ten percent increments.  Each disorder or disability is assigned an identifying diagnostic code.  If a particular disorder or disability is not listed, it is rated by analogy to a listed disorder that most closely approximates it.  See 38 C.F.R. § 4.20.  Multiple disability ratings are combined according to a complex tabulation matrix, rather than added together, to produce a combined rating of all service-connected disabilities.  See id, § 4.25.  Essentially, the adjudicator reviews the medical evidence of record, finds the compatible diagnostic code and compares the clinical evidence of the severity of the veteran’s current symptoms with the list of symptoms under that diagnostic code.  The commensurate rating percentage is assigned.  Each year, Congress sets the monetary level of compensation for each percentage level through cost of living allowances (COLA).   

            Anyone would be hard pressed to say that the VA’s rating schedule even approaches perfection.  It is antiquated, imprecise, and vulnerable to great subjectivity and generally does not take into account the diminution of a disabled veteran’s quality of life.  However, given the uniqueness of the veterans benefits system, the rating schedule, in principle, does serve its essential purpose.  With certain refinements, the rating schedule may be able to live up to its original expectations. 

            Part of the current problem with the rating schedule is that it was formulated at a time when disabled veterans were returning home from World War II.  Veterans were universally admired and their disabilities were, for the most part, clear-cut.  Orthopedic injuries, amputations, psychiatric disorders; these are known quantities.  Since World War II, however, veterans have returned from war with more insidious illnesses.  Diseases such as Hepatitis C and HIV (which were unknown until decades later), diseases as the result of exposure to chemical, biological and radiological agents, mysterious syndromes, such as Gulf War Illness and chronic fatigue syndrome, were not contemplated by the framers of the original rating schedule. 

In the 1940’s, the United States was more of an industrial society.  Quite naturally, the emphasis within the VA disability compensation scheme was on the impairment of a veteran’s earning capacity.  However, times have changed.  Advances in medicine have allowed for qualitatively greater treatment, cures and rehabilitation.  Medical knowledge has increased exponentially in the last four decades, diagnostic tools have been refined and today’s medical professionals are practicing medicine in ways that could not have been envisioned by doctors even two generations age.  Indeed, the Government Accountability Office (GAO) recently concluded that the “VA’s compensation program does not reflect the current state of science, technology, medicine and the labor market.”  GAO-06-309, Veterans’ Disability Benefits, VA Should Improve Its Management of Individual Unemployability Benefits by Strengthening Criteria, Guidance and Procedures (May 2006).  Yet, the rating schedule remains static.  While new disorders have been added from time-to-time and the symptoms listed in the diagnostic codes have been updated here-and-there, it is long past time for a wholesale revision of the rating schedule to bring it in synchronization with the state of modern medicine and this nation’s socio-economic evolution. 

One example of the inadequacy of the current rating schedule is rather glaring.  VA regulations have historically adopted the nomenclature and diagnostic criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM).  See 38 C.F.R. 4.125(a).  The DSM recognizes the differences among the various psychiatric disorders (e.g., psychoses, like schizophrenia, and neuroses, like post-traumatic stress disorder (PTSD).  Some psychiatric disorders are organic in nature, some are acquired and some are congenital.  Such disorders can be chronic, intermittent and acute.  Yet the rating schedule completely ignores such differences.  Instead, it lumps all psychiatric disorders together and evaluates them under the exact same list of symptoms.  See 38 C.F.R. § 4.130.  This is both inherently inconsistent and illogical.  The DSM diagnostic criteria are expressly adopted, but fundamental differences among various psychiatric disorders are virtually ignored.   

The current VA schedule for rating disabilities is replete with examples of descriptions of symptomatology and rating percentages that are based upon outdated medical information and vocational understanding.  Adjudicators with limited medical and legal training (and minimal meaningful supervision) are left to evaluate complex clinical evidence and apply their subjective lay judgment to arrive at what should otherwise be an objective medical determination.  Thus, even if the rating schedule could be revised to bring it into line with current medical knowledge and designed to facilitate its usage, VA adjudicators would have to be “untrained” and retrained to ensure the propriety of their application of the rating schedule.         

Consequently, we believe that the VA, with the assistance of the IOM, should initially undertake a comprehensive review of the rating schedule in concert with medical, psychiatric and vocational experts.  New rating criteria should be developed that takes into account not only impairment in industrial capacity, but also the psychiatric effects of physical disability and the effect of physical and psychiatric disability on the veteran’s quality of life.  The revised diagnostic codes should reflect sensitivity toward the unique nature of a veteran’s service-connected disabilities.  Such disabilities are incurred in unique ways and have unique consequences.  It is the very “veteran-ness” of a veteran’s disability that demands a system of evaluating disabilities that keeps pace with technology, current medical standards and practices, socio-economic factors and individual self-esteem.  

Once the rating schedule has been adequately revised and its users properly trained, the schedule may be utilized just as it is today.  It works logically.  The documented symptomatolgy is compared with the diagnostic criteria and a commensurate rating results.  As long as Congress sets adequate payment levels for the various ratings (which, in equity, should be higher than they currently are), veterans should receive adequate compensation.  

Implementation and Enforcement of Policies, Procedures and Rules

United Spinal and VVA contend that the current system of disability compensation is not broken, but rather requires the implementation of new and strengthened policies, procedures and rules.  Adjudicatory policies, procedures and rules should be stated in clear and concise terms to guide Veterans Benefits Administration (VBA) personnel, and be structured such that individual discretion is limited.  Such policies, procedures and rules must incorporate fundamental principles and values mandated by Congress that guide performance of activities directed toward the achievement of the agency’s mission.  A procedure is a way of proceeding, a routine manner to achieve an objective.  Procedures and rules specifically reduce or eliminate discretion by expressly stating what must be done.

            In our view, the majority of the problems associated with VA claims adjudication are caused because VA employees do not effectively adhere to existing policies, rules and procedures.  The VA adjudication “playbook” is complex, confusing and rife with opportunities for adjudicators to improvise, rather than applying relevant laws and regulations to the evidence of record.  By failing to provide clear and simple direction through policies, rules and procedures, and to adequately enforce them, the entire compensation and pension program is severely impaired.  The VA has at its disposal all sorts of useful and potent tools to rectify this situation.  Unfortunately, all too often, these tools are overlooked or underutilized.  If the VBA management and staff consistently met their legal “duty to assist” and also acted in a truly non-adversarial spirit, the system would function more closely to what Congress had intended in setting up the VA compensation scheme.   Simply stated, if VBA personnel performed their jobs correctly, Congress would not feel compelled to write everything into black letter law, which in turn leads to more confusing implementing VA regulations and procedures.

It is unfortunate for our nation’s veterans that the VBA does not vigorously follow its own policies, procedures and rules.  Similarly, local Veterans Health Administration (VHA) officials routinely do not provide adequate training, materials, or allow sufficient time to VHA clinicians in the performance of compensation and pension examinations.  An excellent example of this problem involves the VHA Best Practices Manual for Adjudication of PTSD [post-traumatic stress disorder] Claims.  In our experience, many VBA and VHA examiners are not even aware that this manual exists.  Rather than adhere to the provisions of the manual, these clinicians are given 40 minutes,  20 minutes and even as little as 10 minutes to conduct an entire psychiatric examination.  By regulation, an examination also must include reviewing a claimant’s entire VA claims file and medical record.  Again in our experience, this is simply not done and the result is ever increasing numbers of improper claims denials.

If the VA properly used its own manuals, policies, procedures and rules, trained their employees properly, administered job proficiency tests, held managers and staff accountable for erroneous decisions and allowed VA clinical professionals do their jobs correctly, the VA would get it right the first time, obviating the need to “churn” claims back and forth in the appellate system for years on end.  Add to this effective supervision and the VA would greatly increase its decisional accuracy and output. We believe that the VA, through the proper implementation of new and existing policies, procedures and rules can do much better.  In conjunction with the proper implementation of these tools better training; supervision and greater accountability using existing legal means must also be utilized. 

Total Disability on the Basis of Individual Unemployability 

It is beyond dispute that Congress’ and the VA’s objective in providing service-connected disability compensation is to restore the capability of veterans with disabilities to the greatest extent possible, and improve the quality of their lives and that of their families.  In the case of a veteran who cannot work because of a service-connected disability(-ies),  but whose disability(-ies) does not satisfy requirements for a 100 percent (total) rating under VA's schedule for rating disabilities, the VA may grant an “extra-schedular” rating, called a total rating on the basis of individual unemployability (TDIU or IU) on the basis of service-connected disability.  See  38 C.F.R. § 3.321(b).  Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation and that such impairment is reasonably certain to continue throughout that person’s lifetime.  See 38 C.F.R. § 4.15.  Moreover, it is the “established policy” of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  See 38 C.F.R. § 4.16(b).  Accordingly, unlike a disability evaluation or rating under the VA rating schedule (at 100 percent or less), unemployability determinations are not based on average impairment of earning capacity, but rather, contemplate the veteran’s service-connected disability(-ies) as it affects that individual’s capacity to obtain and maintain a substantially gainful occupation in light of his or her occupational experience and education.  In order to qualify for a TDIU rating, a veteran must have a single service-connected disability rated at 60 percent or higher, or, if there is more than one service-connected disability, there must be one disability rated at least at 40 percent, with sufficient additional disability to bring the veteran’s combined level of disability to 70 percent or higher.  See 38 C.F.R. § 4.16(a). 

It is interesting to note that the U.S. Court of Appeals for Veterans Claims has frequently taken the VA to task concerning adjudication practices that have resulted in arbitrary denials of TDIU ratings. The Court has also held that VA cannot ignore the issue of entitlement to TDIU when there is evidence in the record that the veteran is unable to engage in substantially gainful employment due to his or her service-connected disabilities.  The Court has similarly rejected the VA’s practice of denying TDIU on the vague theory that the veteran is capable performing some kind of work.  See, generally,     Beatty v. Brown, 6 Vet.App. 532, 536 (1994) (holding that, where the veteran submits a claim for TDIU rating, the VA may not reject that claim without producing evidence, as distinguished from mere speculation, that the veteran can perform substantially gainful employment); Ferraro v. Derwinski, 1 Vet.App. 326, 331 (1991) (holding the VA cannot conveniently find that the veteran can perform some form of substantially gainful employment, despite medical evidence to the contrary); Gleicher v. Derwinski, 2 Vet.App. 26, 28 (1991) (holding that the VA cannot deny IU by merely alluding to the veteran’s educational and occupational history).  Further, the U.S. Court of Appeals for the Federal Circuit has held that where the record in a claim for increased compensation contains evidence of unemployability due to a service-connected disability, the law requires the VA to consider entitlement to TDIU, even though the veteran may not have expressly claimed a total rating on that basis.  See  Roberson v. Principi, 251 F.3d 1378, 1383-84 (Fed. Cir. 2001).  Judicial decisions such as these clearly demonstrate the VA’s dislike of TDIU benefits and its propensity toward denying such benefits at any opportunity, whether justified or not.   

             Although the number of veterans receiving TDIU benefits has steadily increased over the years (approximately 225,000 in 2005), as have the amount of related benefits (approximately $3.5 billion in 2005), the availability of TDIU for those veterans who do not fit into the average mold in terms of individual impairment is essential to a fair and complete compensation system.  See GAO-06-309, supra, Appendix I.  A veteran with a service-connected disability could struggle on the job for years and then suddenly become unable to continue as the result of the progression of his or her disability. A subtle change in the veteran’s physical or mental capacity could result in increased absences and decreased performance.  We therefore maintain that TDIU is an essential benefit for those veterans whose special circumstances require special consideration outside of the rating schedule.   

            While VA compensation, including TDIU, is, and should be, an age-neutral benefit, it is not unreasonable to consider that age is a relevant factor in determining whether vocational rehabilitation is feasible in individual cases (i.e, whether unemployability is permanent in nature).  Unlike the evaluation of disability for routine compensation purposes where the effects of nonservice-connected disabilities must be disregarded, assessment of a veteran’s potential for rehabilitation must include the effects of all of his or her impairments.  Consequently, mandating or pressuring elderly veterans to attempt vocational rehabilitation would be ill-advised and would quite probably result in a waste of resources and increase the risk of exacerbating the veteran’s disability.  We therefore oppose any attempt to restrict the applicability of TDIU benefits based upon a veteran’s age under the belief that the older a veteran is, the less likely it is that he or she would be working anyway.  Rather, we encourage adherence to the principle that service-connected disability compensation, even an extra-schedular benefit such as TDIU, is provided to restore a veteran to the socio-economic level he or she would have attained were it not for service-connected disability.  Elderly veterans should not be required to engage in a course of vocational rehabilitation as a prerequisite for eligibility for TDIU.    

Interestingly, during a July 2005 meeting of the Commission, VA Undersecretary for Benefits, Admiral Daniel L. Cooper, testified that the VA’s current concept of TDIU does not take into account that today’s economy is based on technology and service.  His point being that today, disabled veterans are no longer limited to occupations that entail physical labor and that there is a plethora of sedentary jobs available in today’s job market.  The Undersecretary’s viewpoint, however, misses the mark.  The VA is required to award TDIU benefits only when it determines that the veteran is unable to engage in any form of substantially gainful employment.  If the veteran is able to work at a computer terminal or in other sedentary work environments, he or she would not be entitled to TDIU benefits.  It is therefore incorrect to imply that TDIU is a “freebie” to service-disabled veterans.

Conclusion 

            We wish to emphasize that as the Committee assesses the medical aspects of the VA’s schedule for rating disabilities, the appropriateness of rating schedule in general, and the continued viability of TDIU benefits, it must bear in mind the unique nature of military service and the sacrifice of our citizen soldiers.  Disabled veterans are a special class of individuals and deserve a disability compensation system as unique as they are and as functional and as equitable as it can possibly be. 

            United Spinal and VVA sincerely appreciate this opportunity to share our views with the Committee and stands ready to assist in any way that we can.  We look forward to reviewing the Committee’s report with great anticipation.

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