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Hearing Transcript on Rating the Rating Schedule - The State of VA Disability Ratings in the 21st Century

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RATING THE RATING SCHEDULE - THE STATE OF VA
DISABILITY RATINGS IN THE 21ST CENTURY

 



 HEARING

BEFORE  THE

SUBCOMMITTEE ON DISABILITY ASSISTANCE AND MEMORIAL
AFFAIRS

OF THE

COMMITTEE ON VETERANS' AFFAIRS

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

SECOND SESSION


JANUARY 24, 2012


SERIAL No. 112-39


Printed for the use of the Committee on Veterans'
Affairs

 

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COMMITTEE ON VETERANS' AFFAIRS


 

JEFF MILLER, Florida, Chairman

 

CLIFF STEARNS, Florida

DOUG LAMBORN, Colorado

GUS M. BILIRAKIS, Florida

DAVID P. ROE, Tennessee

MARLIN A. STUTZMAN, Indiana

BILL FLORES, Texas

BILL JOHNSON, Ohio

JEFF DENHAM, California

JON RUNYAN, New Jersey

DAN BENISHEK, Michigan

ANN MARIE BUERKLE, New York

TIM HUELSKAMP, Kansas

MARK E. AMODEI, Nevada

ROBERT L. TURNER, New York

BOB FILNER, California, Ranking

CORRINE BROWN, Florida

SILVESTRE REYES, Texas

MICHAEL H. MICHAUD, Maine

LINDA T. SÁNCHEZ, California

BRUCE L. BRALEY, Iowa

JERRY MCNERNEY, California

JOE DONNELLY, Indiana

TIMOTHY J. WALZ, Minnesota

JOHN BARROW, Georgia

RUSS CARNAHAN, Missouri

 

 

 

Helen W. Tolar,
Staff Director and Chief Counsel


SUBCOMMITTEE ON DISABILITY
ASSISTANCE AND MEMORIAL AFFAIRS

JON RUNYAN, New Jersey, Chairman

DOUG LAMBORN, Colorado

ANN MARIE BUERKLE, New York

MARLIN A. STUTZMAN, Indiana

ROBERT L. TURNER, New York
JERRY MCNERNEY, California,
Ranking


JOHN BARROW, Georgia

MICHAEL H. MICHAUD, Maine

TIMOTHY J. WALZ, Minnesota

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House,
public hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains
the official version.
Because electronic submissions are used
to prepare both printed and electronic versions of the hearing record,
the process of converting between various electronic formats may
introduce unintentional errors or omissions. Such occurrences are
inherent in the current publication process and should diminish as the
process is further refined.

 

       

C O N T E N T S

January 24, 2012


Rating the Rating Schedule - The State of VA Disability Ratings in the 21st
Century

OPENING STATEMENTS

Chairman Jon Runyan

    Prepared statement of Chairman Runyan

Hon. Jerry McNerney, Ranking Democratic Member

    Prepared statement of Congressman McNerney


WITNESSES

Mr. Jeff Hall, Assistant National Legislative Director Disabled
American Veterans

    Prepared statement of Mr. Hall

Mr. Frank Logalbo, National Service Director, Benefits Service Wounded Warrior
Project

    Prepared statement of Mr.
Logalbo

Mr. Theodore Jarvi, Past President of N.O.V.A. National Organization of
Veterans’ Advocates, Inc.

    Prepared statement of Mr. Jarvi

Mr. Tom Murphy, Director of Compensation Service, Veterans Benefits
Administration U.S. Department of Veterans Affairs

    Prepared statement of Mr.
Murphy

Mr. John Campbell, Deputy Assistant Secretary of Defense, Wounded Warrior Care &
Transition Policy U.S. Department of Defense

    Prepared statement of Mr.
Campbell

Accompanied by:

Dr. Jack Smith, Acting Deputy Assistant Secretary for Clinical and Program
Policy for Health Affairs U.S. Department of Defense

COL Daniel Cassidy, Deputy Commander of the US Army Physical Disability Agency

Mr. Robert Powers, Secretary of the Navy Council of Review Boards U.S.
Department of Defense

CAPT Frank Carlson, MC, Physical Evaluation Board U.S. Department of Defense

LTG James Terry Scott USA (Ret.), Chairman, Advisory Committee on Disability
Compensation

    Prepared statement of Mr. Scott

 


SUBMISSIONS FOR THE RECORD

Verna Jones, Director, National Veterans Affairs and Rehabilitation Commission,
The American Legion

Paralyzed Veterans of America

Jim Vale, Director, Veterans Benefits Program, Vietnam Veterans of America


RATING THE RATING SCHEDULE - THE STATE OF VA DISABILITY
RATINGS IN THE 21ST CENTURY


Tuesday, January 24, 2012

U. S. House of Representatives,

Subcommittee on Disability Assistance and Memorial Affairs,

Committee on Veterans' Affairs,

Washington, DC.

The Subcommittee met, pursuant to notice, at 10:08 a.m., in Room 334, Cannon
House Office Building, Hon. Jon Runyan [chairman of the subcommittee] presiding.

     Present:  Representatives
Runyan, Buerkle, McNerney,

Barrow,
Michaud, and Walz.

     Also
present:  Representatives Harris, and Miller. 

OPENING STATEMENT OF CHAIRMAN RUNYAN

     Mr. RUNYAN. 
Good morning and welcome.  The Disability Assistance and Memorial Affairs
Subcommittee will now come to order. 

     We
are here today to examine the Department of Veterans Affairs current framework
on rating for veterans injury, illness, and disabilities resulting from service
in our Nation's military. 

     Along
with my colleagues on this subcommittee I take our focus on disability and
veterans and to our wounded warriors very seriously, and on a personal note I
am pleased to be able to participant in the House of Representatives Wounded
Warrior Program by recently hiring Melissa Worthan, a Marine, disabled veteran
as a caseworker in my district office.  Ms. Buerkle and I were just having
a conversation about this, she also hired a veteran who is a great liaison to have. 
These veteran-employees talk to
veterans as they call in with their case issues in our district offices.  I
am truly honored to have Ms. Worthan as a member of my team. 

     My
continued hope for DAMA is that this meeting of minds sets a precedent and tone
for a broader promise that we have made our veterans population.  That promise
is to insure that the entire claims process, the delivery of earned benefits
and veterans medical services is transformed into a fully efficient and modernized
system equipped with the best tools available to aid our veterans population in
the 21st Century.

     Several
years ago a commission was established to care for our veterans returning as wounded
warriors, it was led by former Senator Dole and former Secretary of Health and
Human Services, Donna Shalala.  The purpose of this commission was to examine
the health care services provided to members of the military and returning
veterans by the VA and the Department of Defense. 

     Around
the same time, Congress created theVeterans Disability Benefits Commission,
which was
established in the National Defense Authorization Act of 2004.  This commission
was created by Congress out of serious concerns, many of which we still have
today.  Those concerns included the timeliness of processing disabled veterans claims for
benefits. 

     This
commission conducted a two year in-depth analysis of benefits and services
available to veterans and the processes and procedures used to determine eligibility.

     Their
conclusion was published in a comprehensive report entitled Honoring the Call
to Duty, Veterans Disability Benefits in the 21st Century. 

     The
end results of these reports were several recommendations, including the goal
of updating and simplifying the disability determination and compensation
system on a more frequent basis.  Although select portions of the rating system
have been updated throughout the past 20 years these reports refer to the
rating schedule as outdated.  The schedule as whole has not been comprehensively revised
since the conclusion of World War II. 

     They
recommended the rating schedule be updated at recurrent and relative
intervals to address advances in medical and rehabilitative care.  Also
recommended was a greater appreciation of understanding for certain disabilities such as PTSD. 
The more recent updates to the diagnostic criteria for new types of injuries such
as TBI were a step in the right direction; however, I believe it is our duty to
be vigilant and pressing for continued revision reflecting the continuing
advances and understanding on all medical care and treatment. 

     In
addition I am in agreement with their conclusion that a more candid emphasis on
veteran quality of life should be taken into account in an updated rating schedule. 

     Therefore
we are here today to honor our duty to our Nation's veterans.  Just as we would
not issue World War II era equipment and weapons to our current soldiers and
Marines and expect them to be successful on the modern battlefield we should
not be satisfied with the World War II era system for evaluating and rating
their disabilities as a result of their service and sacrifice to this Nation. 

     I
want to thank the VA, the DoD, and the present VSOs and General Scott for their
valuable input as we work together to find important solutions. 

     I
welcome today’s witnesses to continue this ongoing discussion and offer their
own specific recommendations to how to improve the current system of rating our
veteran's disabilities. 

     I would now call on the ranking member for his opening statement.

OPENING STATEMENT OF HON. JERRY MCNERNEY, RANKING
DEMOCRATIC MEMBER

     Mr. MCNERNEY.  Thank you, Mr. Chairman. 

     Today
is an important hearing and it is a bipartisan hearing so I am really delighted
that we are having this today. 

     As
we have discussed over the course of many hearings in the 110th and 111th
Congresses, the VA's claim processing system has many shortcomings which have
left many disabled veterans without proper and timely compensation and other
benefits to which they are rightfully entitled. 

     Today
66 percent of VA's 866,000 pending claims languish in backlog status.

     At
the heart of this system is the VA Schedule for Rating Disabilities or VASRD.   

     In
this study the Veterans' Disability Benefits Commission concluded that the VA
rating schedule has not been comprehensively updated since 1945.  Although
sections of it have been modified no overall review has been satisfactorily
conducted, leaving some parts of the schedule out of date, relying on arcane
medical and psychological practices, and out of sync with modern disability
concepts.

     The
notion of a rating schedule was first crafted in 1917 so that returning World
War I veterans could be cared for when they could no longer function in their
pre-war occupations.  At the time the American economy was primarily
agriculturally based and labor intensive.  Today's economy is much different
and the effects of disability may be greater than just the loss of earning
capacity. 

     Many
disability specialists believe that the loss of quality of life, functionality,
and social adaptation may also be important factors.

     Our
Nation's disabled veterans deserve to have a system that is based on the most
available and relevant medical knowledge.  They do not deserve a system that is
in many instances is based on archaic criteria for medical and psychiatric
evaluation instruments.

     I
know that Congress in the Veterans' Benefits Improvement Act of 2008, P.L.
110-389, directed the VA to update the VASRD and to delve into revising it
based on modern medical concepts.  I know that the VA in following this
directive has undertaken a comprehensive review of the VASRD and I look forward
to receiving a thorough update on its progress.

     Congress
also created the Disability Advisory Committee in P.L. 110-389, and I welcome
General Scott here today who is the chair of the committee and I also welcome
his insight.

     I
look forward to the testimony today from all of the witnesses on the complex
issues surrounding modernizing the VA rating schedule.

     I
know that there is a lot to be done to improve the VA claims processing system,
but with the rating schedule at the core of the process it seems that the
centerpiece is in need of a comprehensive update. 

     There
are over 2.2 million veterans of the wars in Afghanistan and Iraq with 624,000
who have already filed disability claims.  There are also so many veterans
whose claims were not properly decided in the past because of the
analogous-based subjectivity that is inherent in the current VASRD.

     Since
the DoD relies on this system and as we transition to the one exam platform
under the Integrated Disability Evaluation System bringing the VASRD into the 21st Century
is so critical.  We must finish updating it without delay.

     I
look forward to working with you, Mr. Chairman, and the members of this
subcommittee in providing stringent oversight of the VA Schedule for Rating
Disabilities. 

     The
VA needs to adopt the right tools to do the right thing so our Nation's
disabled veterans get the right assistance they have earned and deserve.

     I
thank you, Mr. Chairman, and I yield back.

     Mr. RUNYAN.  Thank you, Mr. McNerney. 

     At
this point I want to ask unanimous consent that Dr. Harris sit at the dais and
participate in our hearing here today.  Without objection so moved. 

     At
this point the chairman now calls panel one to come to the witness table.  We
will be hearing first from Mr. Jeff Hall, the Assistant National Legislative
Director for the Disabled American Veterans, then we will hear from Frank Logalbo, the National Service Director of Benefits and Service for the Wounded
Warrior Project, and our final witness on this panel will be Mr. Theodore
Jarvi, the Past President of the National Organization of Veterans' Advocates. 

     Your
complete statement will be entered into the hearing record, and Mr. Hall, I
know recognize you for five minutes.

STATEMENTS
OF JEFF HALL, ASSISTANT NATIONAL LEGISLATIVE DIRECTOR DISABLED AMERICAN
VETERANS, FRANK LOGALBO, NATIONAL SERVICE DIRECTOR, BENEFITS SERVICE WOUNDED
WARRIOR PROJECT,  THEODORE JARVI, PAST PRESENT OF N.O.V.A. NATIONAL
ORGANIZATION OF VETERANS’ ADVOCATES, INC.

 STATEMENT
OF JEFF HALL

     Mr. HALL.  Thank you, Mr. Chairman.  Good morning to you and Ranking Member McNerney and members of the subcommittee. 

     On
behalf of the 1.2 million members of DAV it is an honor to be here to offer our
views regarding the VA Schedule for Rating Disabilities and the revision
process currently under way. 

     My
written testimony, which has been submitted, focuses primarily on three key concerns. 
The current rating table revision process, which should be open but has
effectively been closed to VSOs.  The proposed revisions to the mental disorder
section of the rating schedule which appear to be headed in a direction which
may be harmful to veterans and could undermine the entire rating schedule.  And
compensating disabled veterans for the loss of quality of life, which the
rating schedule should include. 

     Mr.
Chairman, as I prepared my remarks for today I thought about what it really
means to be a severely disabled veteran who wants to work, and I would ask you
and the other members of the subcommittee to take a moment and think back about
what you went through this morning as you prepared for and getting to work. 
Consider what you and millions of others go through each and every day just to
make it to your job on time. 

     Now
consider a veteran with serious service-related disabilities.  Think about a
paraplegic confined to a wheelchair as he heads to work, what must that veteran
go through every single day?  Perhaps enduring who knows how many additional
hours daily just getting to and from work because simple tasks that we take for
granted such as practicing personal hygiene or negotiating a vehicle or using
mass transit can be monumentally more complicated for him or her.  Or a veteran
with bilateral leg amputations.  What does he or she have to go through when it
snows and the driveway needs to be shoveled just in order to make it to the
train station negotiating obstacles encountered along the way simply to get to
work?  Think of a severely disabled veteran and what they have already endured
during the rehabilitation process and what they must withstand simply to
compete for and in the same job as someone without disability. 

     Now
imagine a system that measures his or her disability based on the ability of
that veteran to hold full-time employment without any consideration about the
obstacles that they must overcome or how that disability has forever altered
their lives. 

     Mr.
Chairman, that is the direction we fear that the VA is moving in with the
ongoing mental health rating revision.

     Based
on two public briefings to the Advisory Committee for Disability Compensation,
one in December 2010 and one in October 2011, the new mental health rating
schedule would no longer look at the medical consequences of disability but
instead focus solely on work, how often a veteran was unable to work or was
impaired from working effectively. 

     For
example, from what was discussed in October under this proposal a veteran
unable to work two days per week would be rated 100 percent disabled, while a
veteran with decreased work quality or productivity two days per week would be
rated 70 percent disabled and so on using various combinations of work productivity
and quality measures. 

     In
such a system a disabled veteran suffering from PTSD or depression who has a
job and is doing his or her best toward vocational fulfillment would be
confronted with the dilemma of having to choose between working full-time or
receiving disability compensation.  Basically the less a veteran is able to
work the more he or she is compensated.

     Such
an approach is not only directly contrary to the existing statute in
legislative history and intent, it also raises a number of troubling questions
about how such a system would work and what effects it would have on veterans
and the disability compensation system. 

     How would VBA know when or how effectively a veteran
was able to work?  Will VBA simply rely on self-reporting by veterans to
determine ratings or will they seek to verify the impact on work performance by
contacting employers?  How would this be done?  Would VBA tell
employers that they are verifying mental health disorders and ask employers to verify personnel records? 

     These
are troubling questions indeed.  What if a veteran has a law degree, but whose
severe PTSD makes it so difficult to work around other people that the only job
he can perform is as a night watchman or a custodian.  Since he is able to work
productively 40 hours per week does that mean he is not entitled to VA
disability compensation? 

     What
would that mean for other types of disabilities?  Would a veterans whose legs
were blown off by an IED in Iraq but who has struggled mightily to overcome that
disability and is working productively in a full-time job be subject to a lower
disability compensation?

     Mr.
Chairman, we don't believe that this was the intent of Congress 75 years ago,
and we certainly hope that it is not what Congress wants now. 

     We
hope that this subcommittee will seek answers to these and other questions
about the ongoing VASRD update process to insure the integrity and intent of VA
disability compensation system. 

     Finally
DAV strongly believes that the time is long overdue that VA disability
compensation implicitly and directly include compensation for the loss of
quality of life.  There is a well-established and understood concept in the
field of disability that it has been recommended by numerous commissions,
including the congressionally charted VDBC and other western countries which
also offer comprehensive benefits such as Canada and Australia who do exactly
that. 

     Mr.
Chairman, DAV looks forward to working with you and other members of the
subcommittee on this important matter.

     This concludes my statement and I will be happy to answer any questions you may have.

     [The statement of Jeff Hall appears in the
Appendix.]

     Mr. RUNYAN.  Thank you, Mr. Hall. 

     As
everybody noticed Chairman Miller has joined us at the dais.  I would like to
welcome him and his participation here.  Do you have any comments you would
like to make? 

     That
being said, having missed the opportunity before we got started
here, I know Dr. Harris would like to make a comment.  Is there any other
members that are on the subcommittee that would like to say anything before we
get started?  Dr. Harris?

     Mr. HARRIS.  Thank you, Mr. Chairman, I can just delay it until just before my
questions.

     Mr. RUNYAN.  Okay, thank you.

     Mr. HARRIS.  Thank you for giving me the opportunity and thank you for allowing
me to sit in.

     Mr. RUNYAN.  Thank you very much. 

     Mr.
Logalbo, you are now recognized for five minutes.

STATEMENT
OF FRANK LOGALBO

     Mr. LOGALBO.  Thank you.  

     Chairman
Runyan, Ranking Member McNerney, and members of the subcommittee, thank you for
holding this timely and important hearing on VA's rating schedule and for
inviting the Wounded Warrior Project to provide testimony. 

     Wounded
Warrior Project brings a special perspective to this subject reflecting its
founding principal of warriors helping warriors.  We pride ourselves on
outstanding service programs that advance that ethic.

     Among
those program efforts Wounded Warrior Project across the country works daily to
help warriors understand their entitlements and fully pursue VA benefits
claims. 

     As
Wounded Warrior Projects national service director, a position which I oversee
A work of our service officers, I draw extensively from 17 years of claims adjudication
experience and work with the VA's rating schedule as a VSR, a senior service
representative, rating specialist, assistant service center manager with the
Veterans' Benefit Administration. 

     In
our view VA's most important challenge as it works to update its rating
schedule is to make compensation for mental health conditions as fair as
possible. 

     Combat-related
mental health conditions are not only highly prevalent and often severely
disabling, but have profound consequences for warriors' overall health,
well-being, and economic adjustment. 

     To
illustrate the point, two-thirds of the Wounded Warrior Project or wounded
warriors responding to a recent Wounded Warrior Project survey reported that
emotional problems have substantially interfered with work or regular
activities during the previous four weeks.  And when asked to comment on the
most challenging aspect of their transition some two out of five in the survey
cited mental health issues.

     Given
the strong link between warriors' mental health and their achieving economic
empowerment it is vital that compensation for service-incurred mental health
conditions be equitable and make up for lost earning capacity, but deep flaws
in both VA evaluation procedures and its rating criteria pose real problems for
warriors bearing psychic combat wounds.

     To
its credit the Department of Veterans Affairs, the VA, has acknowledged that
its rating criteria of mental health disorders needs thorough revision.  Those
criteria are deeply problematic. 

     To
illustrate, one independent expert panel characterized the mental health rating
criteria as crude and overly general, focused too narrowly on occupational and
social impairment, and is failing to consider other factors like frequency of
symptoms that are used in the rating physical disorders.  Also given that VA
disability ratings are to be based on average impairment of earning capacity,
rating a mental health condition on the basis of that veteran’s occupations
impairment is simply inappropriate.

     Eliminating
occupational impairment as a defining rating factor in rating would be an
important first step, but VA must also recognize that its rating criteria are
unreasonably high. 

     An
example would be the criteria for 100 percent rating more closely resembles a degree
of impairment with a need for institutional care than simply functional
impairment.  In fact the criteria for 100 percent rating, which entitles a
veteran to $2,679 in monthly entitlement, are most indistinguishable from the
criteria, especially monthly compensation, which entitles the veteran to $3,100
monthly.

     It
is simple and reasonable for the disability bar to be seat that high. 

     VA
most also insure that compensation for mental health conditions replaces
average loss and earning capacity.  Today it is not.  The flaw was carefully
documented in an analytic prepared for the Veterans’ Disability Benefit
Commission which showed that on average VA compensation for mental health
condition fails to fully replace lost earnings unlike compensation for physical
disabilities. 

     In
short we believe VA must completely rewrite its rating criteria for mental
health disorders, but let me stress, the best possible ratting criteria alone
with not result in fair and accurate compensation awards because VA's principal
mechanism for evaluating the veteran's condition is fundamentally unreliable. 

     Currently
the claims adjudication process relies heavily on examination conducted by a
psychologist or psychiatrist who typically has never before met yet along
treated the veteran.  Let us be clear, evaluating the extent of a psychiatric
disability is far more complex than evaluating a physical condition which can
be objectively measured.  A one time 20 to 30-minute conversation in a hospital
office simply will not tell the most knowledgeable, conscientious examiner how
the veteran functions in the community, yet more than one in five wounded
warriors who responded to Wounded Warrior Project survey last year reported
their VA compensation examination for original PTSD claim was 30 minutes or
less.  Hurried or less incomprehensive C&P examinations heighten the risk
of adverse outcomes, additional appeals, and long delays in veterans receiving
benefits. 

     VA's
mental health compensation determination should be based on the best evidence
of a veteran's functional impairment associated with that service-connected
condition.

     We
urge the committee to press VA to revise current policy to give much greater
weight to the findings of mental health professionals who are treating the
veteran and are necessarily far more knowledgeable about his or her
circumstances. 

     One
last area of VA compensation policy we would like to address has the
unfortunate effect of impeding many warriors with service-connected mental
health conditions from overcoming disability and regarding productive life.  It
involves VA regulations that have long provided a mechanism to address a
situation where a rating schedule would not warrant 100 percent rating, but the
veterans are nevertheless unable to work because of a service-connected
disability.

     The
regulations permit disability ratings in certain instances when the veteran is
found unable to obtain substantially gainful employment.  This individual
employability rating results in a very substantial increase in the veteran's
compensation.  But while the veterans are rated based on individual
employability the same compensation to those with 100 percent rating under the
schedule the implication for employment differed drastically. 

     Veterans
receiving IU who engage in a substantially gainful occupation for a period of
12 consecutive months can lose IU benefits and suffer steep reduction in
compensation benefits.  For some it can mean a sudden loss of approximately
$1,700 monthly. 

     Expert
panels have recognized that this cash cliff may deter some veterans from
attempting to reenter the workforce and have recommended a restructuring of the
IU benefit.

     The
experience of the Social Security Administration which has successfully piloted
a program step down approach to reducing benefits for beneficiaries who retain
employment offers a helpful model. 

     Recognizing
unemployment often acts as an powerful tool in recovery and is an important
aspect of community reintegration for this younger generation of warriors.  We
believe that VA should revise the IU benefit to foster those goals. 

     In
closing we emphasize that compensation for service-connected disability is not
only an earned benefit, it is critically important to most veterans
reintegration and economy empowerment, and particularly for those who are
struggling with psychiatric disabilities of war. 

     VA
must do work to make compensation for combat-related mental health conditions
as fair as possible, and we look forward to working with the department and the
subcommittee to realize that goal. 

     Thank
you.

     [The
statement of Frank Logalbo appears in the Appendix.]

     Mr. RUNYAN.  Thank you, Mr. Logalbo. 

     Mr.
Jarvi, you are now recognized for five minutes.

STATEMENT
OF THEODORE JARVI

     Mr. JARVI.  Thank you, Mr. Chairman for the opportunity to address you on behalf
of NOVA and the many veterans they represent. 

     Our
client's cases are cases where the VA schedule of disabilities meets the road. 
We have recommendations for how to bring the schedule in sync with the purpose
Congress has established for it in 38 U.S.C. 1155. 

     I
agree with the prior speakers that that statute should be amended to include
quality of life, but just as it stands the schedule for disabilities does not
meet the requirements of the statute.  That statute says VA shall adopt and
apply the schedule of ratings based on impairment of earning capacity resulting
from service-connected disabilities. 

     The
VA schedule represents the VA's attempt to provide a narrative description of
all the things that can go wrong with a person with a human body in mind, and
then it assigns the VA the responsibility of assigning a disability rating or a
combination of ratings for each veteran with service-connected disability;
however, as we have heard the schedule is out of date and not responsive to
change.  It contains obsolete medical terms and fails to incorporate modern
medical knowledge. 

     Too
often terms in a veteran's medical records can't be found in the schedule. 
What happens is that after VA rating officials read the veteran's medical
records they must find a description in the schedule that sounds to them
something like the veteran's condition.  It is hard and results are uneven or
wrong and that leads to appeals and lengthy delays.

     NOVA
asks why should the VA even be engaged in creating a schedule of disabilities
when there is an accepted existing schedule of disabilities which is consistent
with current medical terminology and usage? 

     NOVA
recommends that VA use the International Code of Disabilities, the ICD.  It is
regularly updated, you won't have to be having this meeting again in five
years, it is in its ninth edition and an updated tenth edition will be issued
shortly.  It is a great time for the VA to switch to the ICD.

     There
are good reasons for adopting the ICD.  There is precedent for using
professional schedules like this.  The VA currently uses the American
Psychiatric Association's standards for mental disabilities, the DSH-4. 
General Scott's Disability Benefits Commission, which Congress established to
review many aspects of VA recommended that VA use the ICD.  And most
importantly VA doctors already use the ICD in their daily work. 

     Doctors
won't have to be retrained in how to apply the ICDs.  They will have to be
trained to use the VA's new schedules. 

     VA
medical records will be consistent with the schedule.

     We
know VA is currently engaged in a regulation rewrite program, but it is gone on
for too many years.  This work could be greatly simplified if VA adopted the
ICDs by reference. 

     NOVA’s
second recommendation is to reform the schedule so that ratings actually do
compensate veterans based on loss of earning capacity and hopefully quality of
life.  There is no body of data which confirms or supports most of the
percentages in the schedule.  The percentages are rough estimates arrived at by
doctors and VA rating officials who don't have training in evaluating lost
earning capacity. 

     The
schedule should be changed to connect medical conditions to accurate
assessments of impairment for earning capacity. 

     VA
should utilize experts who are trained in reviewing medical records and
assessing the impact of disabilities on an earning capacity. 

     VA
treats assessment of employability as a medical issue, but it is not. 

     VA
asks the doctors to determine in a veteran's condition renders him
unemployable, but they don't have the training and experience for this task. 

     Many
vets have more than one disability.  Take a combat Marine who was shot through the
leg in Afghanistan and has orthopedic, neurological, and psychological
conditions.  What VA doctor will assess the reduction in this veteran's earning
capacity?  The answer is none.  None are competent to make an overall
assessment of their earnings impairment.  Vocational experts are suited for
this job.  We should include vocational experts into the rating system. 

     NOVA
makes two recommendations for implementation of the ICDs and vocational
experts.  We need congressional guidance.  VA needs congressional guidance on
incorporating vocational experts into the VA disability system and
incorporating the ICD. 

     Second,
VA must be required to move more quickly.  VA must be forced to pick up their
operational tempo.  Military people know what that means.  Veterans are dying
while waiting for the VA to do its job. 

     In
my small private practice in Tempe, Arizona I have had more than 60 veterans
die waiting for their benefits to be finally adjudicated.  That is a
well-staffed platoon.  That is a platoon of regret and we need to make them
move faster. 

     Thank
you.

     [The
statement of Theodore Jarvi appears in the Appendix.]

     Mr. RUNYAN.  Thank you, Mr. Jarvi. 

     With
that we are going to begin the questions, alternating either side in the order
that they arrived.  And I will start, my first question is
directed to Mr. Hall in talking about quality of life compensation. 

     Can
you elaborate on the DVA's views on how we can accurately rate disabilities and compensate
for them?  Because I know there is a lot of gray area out there and
we have talked about the ability to work and I know Mr. Logalbo touched on
that a little bit as well.  How do you nail it down to where we are eliminating
the guess work from it?

     Mr. HALL.  Thank you, Mr. Chairman. 

     Quality
of life, it does entail a great deal of question.  We know that other countries
do utilize or include a quality of life component in their rating criteria. 
How that would be utilized in the current VA schedule for rating disabilities
here is something that we are still exploring.

     I
would be happy to provide further detail after we continue to research that
particular aspect of it, but essentially, you know, an average impairment in
work capacity versus average loss of earnings, they are two completely
different things.  Loss of earnings meaning the actual loss of wages because an
individual was not paid for services rendered or time lost on the job.  Average
impairment in earning capacity as the law is intended we do believe also
included a component for functional limitations in the daily activities and
also a quality of life component; however, that has not been instituted or
actually pushed to the point that it needs to be. 

     But
quality of life in itself versus functional limitations of daily activity,
meaning non-work-related type activities, i.e. hobbies, things like that, that
an individual would not be able to do or would be limited because--or by reason
of their disability, quality of life is the enrichment, to enjoy life to its
fullest extent would be severely impacted. 

     Again,
the rating schedule simply does not take that into consideration as Mr. Logalbo
had stated from his years of experience working with it.  My same years of
experience working with it, the rating schedule just simply does not take that
into account and must. 

     We
also know that it should not be limited to simply work-related limitations.

     Mr. RUNYAN.  I hear that all the time and I think the biggest thing as we
move forward and you try to set criteria we have to work together to figure out
how best to formulate that and put a piece of legislation out there, because
obviously it is too broad, too vague as we stand and we had problems. 

     And
it leads right into my question with Mr. Logalbo.  I know we get it and I
just want to get it for the record so everybody can hear it, do most veterans
understand and feel comfortable with the ratings they receive from both the VA
and the DoD?

     Mr. LOGALBO.  We deal with that on a daily basis reaching out to the warriors and
the veterans, even the family caregivers in the community, and throughout that
a lot of them do not understand a lot of the complex rating decisions or the
information that is in there and they do continue to contact us continuously to
make sure that one, they understand the disability percentage with the
references and their entitlement to benefits.

     Mr. RUNYAN.  And also tying into that, we deal with that a lot specifically on
this subcommittee with obviously being the Disability Assistance Subcommittee,
but the inconsistency and difference in the ratings between the DoD and the VA,
what is the common misnomers about all of that stuff? 

     Obviously as we move forward the records don't transfer and these ratings
aren't the same.  How can we systematically step forward and try to
smooth that road bump out?

     Mr. LOGALBO.  I think as a transition through the warrior--like if you look at
the MEBPB process and working with the VA and us working it and along with the
DoD and the committee we can look at those issues, you know, together, and see,
you know, from our standpoint as a warrior, as 1 Wounded Warrior Project and
warriors moving forward what would be the best solution to make that transition
as smooth as possible.

     Mr. RUNYAN.  Thank you. 

     With
that I recognize Mr. McNerney.

     Mr. MCNERNEY.  Thank you, Mr. Chairman. 

     This
issue so to complicated I almost don't know where to start here. 

     Mr.
Jarvi, you have a pretty strong recommendation that we move forward with
adopting the ICD-9, and that sounds like a pretty good idea, except I know that
there are some concerns about that. 

     One
of the things that I think would be driving us in that direction is this sort
of lack of uniformity or repeatability of the current analogous-base system and
I am hearing it from some of the other veterans organizations that they think
the current system has virtues that we ought to be aware of, and so I would
like to have Mr. Logalbo address that. 

     What
do you think would be the advantage or disadvantage of moving forward with the
ICD system?

     Mr. LOGALBO.  Again, with the ICD-9 I don't have enough--my overall opinion would
be with the rewrite of the disability rating schedule is to work with the VA
and the subcommittee to look at, you know, some of the research and see if it
would be, you know, a cause of the factor. 

     I
think the disability rating schedule rewrite from years of experience is moving
in the right direction based on, you know, the committee reports, but I would
be willing to work, you know, along side to see if it would be a viable option
moving forward.

     Mr. MCNERNEY.  Mr. Jarvi, does the ICD-9 have pretty strong provisions for mental
disabilities and impairments that would be adoptable by the VA?

     Mr. JARVI.  The ICD is primarily for physical disabilities.  General Scott in his
Disability Benefits Commission report recommended the use of the ICDs with a
proviso that peculiarly military-related disabilities could be accepted from
the ICD provision.  In other words the VA doesn't have to operate them in toto,
doesn't have to include them in toto, it can make special provisions for--or it
should make special provisions for military disabilities that are unlike
anything you find in civilian life.

     Mr. MCNERNEY.  But I mean that is sort of wavering, sort of undoes the
reliability, and certainly we would like to see with a system that we would
adopt.  I mean I would like to see a system that is reliable from state to
state.  If an individual got a rating and then went to another
office and got a different rating I would like to see that sort of uniformity
go away, and that would have to apply to mental disabilities as well, and I
think that is kind of what we are trying to get at here. 

     Mr.
Hall, would you like to comment on how we could get there?

     Mr. HALL.  Personally I am not that familiar with the ICD process. 

     I
would just simply say that while we might be able to adopt certain aspects of
the ICD-9, it is still really to DAV, it still comes back to the fact that any
revision or whatever the end product may be cannot be based solely on
functional limitations as it is related to work.

     Mr. MCNERNEY.  Okay.  The ICD-9, does it have provisions for quality of life or is
it strictly disabilities?

     Mr. JARVI.  No, it is more mechanical, it doesn't include quality of life.  We
hardly approve of the inclusion quality of life, but the difficulty of
measuring that is a problem.

     The
courts made an important step in that direction when they passed the--or when
they rendered the DeLuca case which required the VA to include considerations
of pain in its evaluations.  Up until the DeLuca case the VA was strictly
measuring for instance restrictions in range of motion without any
consideration of pain.  Certainly pain is one of those quality of life issues
that is critical in a VA disability case.

     Mr. MCNERNEY.  Okay, thank you. 

     Mr.
Chairman, I yield back at this point.

     Mr. RUNYAN.  Thank you, Mr. McNerney. 

     Mr.
Harris?

     Mr. HARRIS.  Thank you very much, Mr. Chairman, and thank the members of the
subcommittee to allowing me to join you here today. 

     You
know, as a physician and Navy veteran I am familiar with many of the issues
facing our veterans, but really until I got to Congress didn't understand
firsthand how difficult some of the interactions with the veterans with the
system are and certainly delays in processing in benefits and pension claims
and having access to quality medical care, two of those that we do have to deal
with. 

     Let
me ask you though, Mr. Jarvi, the ICD-9 is a diagnosis code, I mean it is just
a medical diagnosis code.  Clearly, you know, pain, there are pain diagnostic
codes, so what you would end up with is a veteran who has--probably the
disabled veteran, so probably end up having multiple ICD-9 codes that would
have to be integrated together, but it is your testimony that you think that
would be better than the prevailing system because of the uniformly between
providers?

     I
mean all providers know what an ICD-9 code book looks like and they know how to
work it, is that what you are proposing, that that would simplify the process
of classifying veterans?

     Mr. JARVI.  Right.  The schedule of rating disabilities really does three
things.  It makes general classifications of disabilities, then it attempts to
describe their disability, and then it assigns percentages. 

     The
ICD-9 is primarily valuable for those first two functions, not necessarily for
the third.  The third is where we think that the vocational experts can play an
important part.

     Mr. HARRIS.  Sure, that makes sense. 

     Now
for all three of you, you know, one of the reasons why I wanted to join the
subcommittee today is because of the increasing number of complaints we are
getting from our veterans about a backlog of claims processing.  In fact as I
look through the study, and I will ask a consent panel of performance and
accountability report, you know, it says there were 1.3 million claims last
year and one million were handled.  Well that means 300,000 weren't handled. 

     And
Mr. Jarvi, like your experience, I mean we have had people who in the short
time that we have been dealing with veteran's claims who have passed away
waiting for their claims to be adjudicated. 

     And
I will ask all three witnesses, is this something that you observe as
a--because the report if the department suggests that, you know, don't worry
things are getting better, but our impression is that no, they are not, they
may in fact be getting worse because we are involved in some recent wars and
actions overseas that increase the number of our disabled veterans. 

     What
is your impression from out in the field, is it getting better or worse?  And
Mr. Hall and Mr. Logalbo if you would--why don't you just give me your impression.

     Mr. JARVI.  Mr. Harris, it slowed down dramatically as the VA focused on Agent
Orange issues for the last year.  It is beginning to pick up again now.  We
have noticed a slight increase in tempo, but nothing dramatic at all, it is
pretty much the same.  And the unfortunate part about that is that when we have
to decide what to devote our resources to in terms of advocacy we actually have
to look at the veteran's age.  It is a problem.

     Mr. HARRIS.  Mr. Logalbo?

     Mr. LOGALBO.  I agree with Mr. Jarvi.  The claims, the actual you know herbicide
claims that were out there did slow down the process which did increase the
backlog.  A number of warriors are continuing to wait, you know, an extensive
amount of time for the disability claims to be processed.

     Mr. HARRIS.  And Mr. Hall?

     Mr. HALL.  It is been a while since I have been in the field, but in touch with
those of us, you know, our office is in the field and testifying before this
subcommittee and others, I don't know if it is accurate to say that it has
slowed down or it has gained more.  Certainly we all understand the principal
of one million claims processed, but 1.3 million were actually received. 

     With
DAV being have involved with the many other aspects with VBA we appreciate
their outreach to include us in a lot of the process to include the complicated
process of the veteran's benefits management system, which is driving forward. 
I believe it is Providence, Rhode Island and Salt Lake and getting ready to
spread out to other regional offices, which may in fact improve the claims
process or the timeliness of the claims process, but between that and a lot of
the other pilot projects that they have going on, you know, at various stations
the Indianapolis Integration Lab, different things like that, we simply can't
see where whether or not it is actually getting better but we have written some papers ourselves on it and I would be happy to forward
those to you if you would like to read them.

     Mr. HARRIS.  I would appreciate that, thank you very much. 

     Thank
you very much, Mr. Chairman.

     Mr. RUNYAN.  Thank you, Mr. Harris. 

     Mr.
Michaud?

     Mr. MICHAUD.  Thank you very much, Mr. Chairman, Mr. Ranking member for having
this very important hearing today.

     I
also just want to comment, Mr. Chairman, your open statements about the Wounded
Warrior Program and hiring a staffer in your congressional office.  We have had
one and that is an excellent program, it has definitely added a lot of value to
our congressional office having a wounded warrior soldier there on satisfy.  So
I commend you and Ms. Buerkle for hiring one. 

     So
my question actually relates around the ICD.  I guess I don't believe I heard
Mr. Hall say whether DAV agrees with the ICD recommendation that Mr. Jarvi had
recommended.  Is that something that you think--what I really like about it is
the fact that it is updating all the time and the VA won't have to wait another
40 years or so to reevaluate it. 

     So
what is the DAV's comment on Mr. Jarvi's recommendation?

     Mr. HALL.  Well, as I had stated, sir, I personally am not that familiar with the
ICD process.  DAV and others, my boss, we can probably get you something in
more detail, but again, in short I don't think any system going to something
that focuses solely on functional limitations related to work is something that
is acceptable to anybody. 

     As
Mr. Jarvi had said, it is more of a mechanical process and does not include the
quality of life component, which we have heard not only from myself but others
here today, must be included in the rating schedule. 

     So
if the ICDs do not include that in there I can't see how DAV would be
supporting including that.  Maybe aspects of it, but not the overall.

     Mr. MICHAUD.  Okay.  And speaking this for all three, speaking about the quality
of life criteria, which I can understand having part of that in there, but how
do you deal with that issue because it is very subjective?  And a good example
is when they closed the air force base in Limestone, Maine, the ultimate
decision why they closed it was the quality of life; however, if you ask the
people that live in Russup County they love the quality of life, so it is very
subjective. 

     So
how do you build that into a system and have it be considered fair on that as
to all three of you that question?

     Mr. HALL.  Well again, we don't have the exact how to.  We know that other
countries do it.  Whether it is a rating formulated, something that is added to
a baseline of disability, it is added to it, I know that we have special
monthly compensation above and beyond a base rating, but that is reserved for
those individuals with things such as amputations or loss of use of an
extremity or blindness or something of that nature. 

     Including
it in there, we know that it must be included in there because again it can't
simply be related to how it affects a person's ability to work because it is
going to disincentivize individuals from actually going to work.

     Okay,
when an individual has to contemplate and negotiate these steps over here just
to simply get up here where you or I wouldn't normally have to do that that is
a quality of life issue.  They have to take into account every single step that
we again common or routine activities we wouldn't think of. 

     So
again, while we might not have the exact answer for it, we know that it must be
included in there, and we are happy to work with the subcommittee and move that
particular issue forward.

     Mr. LOGALBO.  Thank you, Mr. Chairman. 

     On
the quality of life issue itself if you look at the foundation of Wounded
Warrior Project as economic empowerment, our organization has 16 different
programs.  One of the components is our service program that lows warriors to
actually solidify that single part, that compensation part, and then we have
other programs to make sure and insure that the warrior and our organization is
the most well-adjusted and successful generation of veterans that we have.  And
basically with the Wounded Warrior Project is, it is, you know, our point is to
do a holistic approach with our 16 programs and make sure that each portion of
the warrior is taken care of from transition from military to civilian life to
insure that they are most successful.

     Mr. JARVI.  I wasn't necessarily suggesting that quality of life should not be
included, we would like to see it included.  We don't know necessarily how it
will be measured, but what the purpose of our recommendation regarding the ICDs
is, is that it enhances a smooth transition from the medical records to a VA
rating.  It is a starting point, it is an initial way for raters to understand
what is going on in the veteran's medical case.

     Mr. RUNYAN.  Thank you, Mr. Michaud. 

     Mr.
Walz?

     Mr. WALZ.  Thank you, Mr. Chairman and ranking member for holding this, thank you
for being for informative as our panel, this is a challenging subject. 

     I
would just like to state again thank you to the members for their hiring of
veterans. 

     I
would also like to make note the chairman has left, but Chairman Miller,
myself, and Congresswoman Fudge kind of led a little initiative, tonight you
will see a lot of members bringing guests to the State of the Union tonight
that are Iraq veterans to say a very public thank you.  I have Mike McLaughlin
from Mankato, Minnesota here whose father is a combat-wounded Vietnam veteran,
Mike did two tours in Iraq of being there, so for all of us to say thank you
for that and thank you for counting to put the emphasize on this. 

     You
are exactly right, this is a very, very subjective situation, but it is one
that is paramount to us is, is getting this right. 

     The
claims backlog troubled all of us for a long time.  I think that all of us
understand though the ultimate goal here is an accurate claim.  Just getting it
done we have seen is not good enough, just getting it done on time if it is not
accurate. 

     And
I would also mention one thing that is very challenging about this, I think the
chairman is exactly right when he asked you, Mr. Logalbo, you know, if you hear
people complaining about the process, I would be interested, has anybody ever
complained to you that they have too high of a rating?

     Mr. LOGALBO.  With the warriors that we serve they are really motivated and to be
successful, so their own premise, a lot of the warriors that we are serving is
to make sure that they get back into society.

     Mr. WALZ.  That is exactly the point.  I am trying to figure this out.  And I
think this goes back, you also mentioned, and I am interested about this, the
restructuring of the IU.  How would we do that?  Do you have some ideas on
that?

     Mr. LOGALBO.  That is a process we were--basically is we use social security as a
guide, but we would be more than willing to work with the subcommittee and the
committee and also the Department of Affairs looking at the best way to
restructure it so it is the best suitable for the warrior to get back
into--adjust into the economy.

     Mr. WALZ.  Is it safe to say this is similar to our health care cost where we
have 15 percent of the population accounting for 80 percent of the cost in the
last, you know, 36 months of life or whatever, is this a case of the IU is
eating up a bigger and bigger share of the disabilities?

     Mr. LOGALBO.  That I couldn't answer.

     Mr. WALZ.  Okay.

     Mr. LOGALBO.  I don't know.

     Mr. WALZ.  I just see it start to happen.  Because I think you are right, I think
we have to get structured at this in trying to figure it out.  We want them to
be accurate, we want to get people back working again, we want to be fair in
how we do it, and I do believe this quality of life issue, this is one I really
struggle with of how do we get to that. 

     I
have to be very honest, and I am looking forward to our next panel helping me
out with this, I tend to think I am leaning the way all of you are, a structure
like the ICD or something, the AMA is going on, it is very difficult. 

     I
guess I would throw this out there to you.  I know we are always balancing this
issue of doing right by veterans, doing it in an efficient manner, and the
costs. 

     I
will not apologize for the added claimed by Agent Orange.  That was something
we advocated for, that cluster of folks in southeast Minnesota who brought the
issue of Parkinson’s forward, I am very proud of the work we did for them.  If
I have my way we are going to make VA busier with blue water, but that will be
for another time. 

     With
that being said, is it time to think about allowing individual physician
assessment, that treating physician rule, or are we going end up with a
situation--I know this is also hard--how do you keep up then with the pace?  It
is not as if VA denies claims to save money, they are trying to get them
accurate.  I trust physicians to do this right, but are we going to then be
criticized for look at all these claims that you have approved and the cost it
has been and we have no control over that physician who did it?  Is there a
lucrative business approving claims then out there by treating physicians? 

     I
just ask all of you to if you could give me your candid assessment the way you
see that.

     Mr. HALL.  Well, let me ask you do you think with everything surrounding the
backlog of claims, which I have been here before you before, it is an important
subject, but with the backlog of claims do you think that it is possible that
going to a system that is based solely on how it affects an individual's work
is going to speed the process up?  Do you think that might be an underlining
factor?

     Mr. WALZ.  No.  Yeah.

     Mr. HALL.  I mean it is something that we certainly think about because to us it
is illogical.  It is illogical to omit to as they had stated in the--I believe
it was the ACDC back in October to--or the Veterans’ Disability Commission, to
reject the mental rating disorders criteria and to eliminate social impairment
from the rating schedule itself, that is not feasible.  Again, we are--

     Mr. WALZ.  This is where I struggle, because I think we could speed the system, I
think we could become more efficient, but as I said, again the goal is, is the
fairness to the veteran, and there is the quality of life issues, there is in
each and every one of these cases is unique depending on where the ability of
the skills and the ability to get back are for each of these folks, so I really
struggle with this.

     Mr. HALL.  Yeah, I mean one good point with that would be Congress has worked
diligently with the employment bills, the legislation that has been enacted, we
want to put veterans to work, we want to encourage them and incentivize employers
to hire veterans, that is on the front end. 

     On
the back end this could head down a path that would actually be contrary to
that to say we are pushing you to go back to work, but if you go back to work
you are not going to receive disability compensation. 

     Now
that may be a very raw way to look at it, but again, if you look at the reports
coming out of those commissions, which we as we understand it, because we have
not been fully included into the open and transparent process, VSOs, it has
been closed off to us, we want to be engaged more in-depth with that, but I
agree with you.

     Mr. WALZ.  My time is just about it. 

     Individual
physician assessment?

     Mr. JARVI.  If I may address your questions about the treating physician rule.

     Mr. WALZ.  Yeah.

     Mr. JARVI.  It is a bad rule because veterans who want to challenge their ratings
when they think they have been improperly rated generally the only person they
have to go to is their treating physician.  Their option is to go to a forensic
physician whose report may cost thousands of dollars. 

     The
veteran really needs to be able to introduce the evidence from their own
treating physicians.  It is an important change and I hope the committee
addresses it.

     Mr. WALZ.  Thank you Mr. Chairman, I appreciate it.

     Mr. RUNYAN.  Thank you, Mr. Walz.  I was just talking to the ranking member about
how we move forward and how we improve this process.  The comments we heard from Mr. Hall,
and his comments about Mr. Jarvi with the ICD things, I think the biggest thing is
we have to find a framework that works for most of our stuff and everyone make these pieces fit together. 

     Dr. Harris commented that the medical world has their
own language they are used to, the VA has their own world and a lot
of the things they put on the medical staff, so we have got to find this common
ground so we are not always trying to merge two different volumes of a book
that says a lot of similar things.  I think that the quality of life issue is going to be a challenge, because every
single one of those determinations is different.  Everybody has a
different--and I know this from my personal experience--everybody has a
different pain threshold, a different way they deal with those injuries and such. 

     So
we are not going to solve it in this hearing, I just wanted to raise the issue
so we can take an honest look at it and attempt to make this fair for
everybody.  I think at the end of the day it will happen. 

     So
with that being said I want to thank you gentlemen on behalf of the
subcommittee for your testimony and look forward to working with you on these
matters, because obviously we have a long way to go and it is the mission of
this committee to take care of the ones who sacrificed everything for
everything we have. 

     So
thank you and you are excused now. 

     At this time I would like to call the next panel up to the table. 

     At
this time I welcome Mr. Tom Murphy, Director of the Compensation Service for
the Veterans Benefits Administration U.S. Department of Veterans Affairs.  Next
we will hear from Mr. John Campbell, the Deputy Assistant Secretary of Defense
for the Wounded Warrior Care & Transition Policy U.S. Department of
Defense.  He is accompanied by Dr. Jack Smith, Acting Deputy Assistant
Secretary for Clinical and Program Policy in the Office of the Assistant
Secretary of Defense for Health Affairs. 

     We appreciate your attendance today and your complete written statements will
be entered into the hearing record. 

     With that being said, Mr. Murphy, you are now recognized for five minutes.

STATEMENTS
OF TOM MURPHY, DIRECTOR OF COMPENSATION SERVICE, VETERANS BENEFITS
ADMINISTRATION U.S. DEPARTMENT OF VETERANS AFFAIRS; JOHN CAMPBELL, DEPUTY
ASSISTANT SECRETARY OF DEFENSE, WOUNDED WARRIOR CARE &
TRANSITION POLICY U.S. DEPARTMENT OF
DEFENSE; ACCOMPANIED BY DR. JACK SMITH, ACTING DEPUTY ASSISTANT SECRETARY FOR
CLINICAL AND PROGRAM POLICY FOR HEALTH AFFAIRS U.S. DEPARTMENT OF DEFENSE; COL
DANIEL CASSIDY, DEPUTY COMMANDER OF THE US ARMY PHYSICAL DISABILITY AGENCY;
ROBERT POWERS, SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS U.S. DEPARTMENT
OF DEFENSE; CAPT FRANK CARLSON, MC, PHYSICAL EVALUATION BOARD U.S. DEPARTMENT
OF DEFENSE

 STATEMENT
OF TOM MURPHY

     Mr. MURPHY.  Thank you, Mr. Chairman. 

     Chairman
Runyan, Ranking Member McNerney, and members of the subcommittee, thank you for
the opportunity to testify on the state of the VA Disability Rating Schedule. 

     The
VASRD is the engine which VA is able to provide veterans with compensation for
diseases and injuries they incur while serving our Nation. 

     Section
1155 of Title 38 U.S.C., and the statute's implementing regulation 38 C.F.R.
4.1, require VA to assign veterans who are service-connected with percentage
ratings that represent the average impairment in earning capacity resulting
from diseases and injuries that were incurred or aggravated during active
military service. 

     Section
1155 also provides that the schedule be constructed to provide ten grades of
disability for payments of compensation with increments of 10 to the total 100
percent.  Congress sets the associated dollar amount under 38 U.S.C. 1144. 

     The
current rating schedule has three basic concepts introduced in the 1945
schedule.  First, compensation based on average loss earnings capacity. 
Second, use of disability evaluations and associated compensation ranges.  And
third, disabilities organized into discrete body systems. 

     The
current rating schedule differs from the 1945 rating schedule due to periodic
updates to individual body systems throughout the years and now contains
diagnostic codes for 15 body systems.

     Various
studies and commissions since 2007 have made many recommendations relating to
VA's Disability Compensation Program. 

     For
example, the Institute of Medicine in its 2007 report to the VDBC recommended
that VA immediately update the current rating schedule, devise a system for
keeping the schedule up-to-date, and conduct research on the ability of the
rating schedule to predict actual loss in earnings. 

     In
2007 the VDBC recommended that priority be given to the mental disorders
section of the rating schedule to include PTSD, TBI, and other mental
disorders.  It further recommended that VA address the other body systems until
the rating schedule is comprehensively revised. 

     The
President's Commission on Care for America's Returning Wounded Warriors in its
2007 report recommended that the rating schedule focus on veterans ability to
function directly instead of inferring it from physical impairments.

     A
Center for Naval Analyses study determined that VA compensation, on average, is
generally appropriate relative to earned income losses.  The study found that
veterans with physical disabilities are properly compensated while those with
mental disabilities may be under-compensated. 

     In
2009 VA began a comprehensive revision and update of all 15 body systems
contained in the rating schedule. 

     VBA
implemented a detailed project management plan that will result in a complete
modernization of the rating schedule by 2016.  The plan calls for the
application of current medical science and econometric earnings loss data
consistent with our charge in 38 U.S.C. 1155. 

     Each
body system starts with an initial public forum intended to solicit updated
medical information from governmental and private sector subject-matter
experts, as well as input on needed improvements in the rating schedule from
the public and interested stakeholders, such as veteran service organizations. 
This is accomplished in the most transparent manner possible.

     As
VA convened work groups of subject matter experts for each body system a common
theme emerged, there is a need for a shift in focus in the rating criteria from
a symptomatology-based system to one which focuses on functional impairment. 

     Subject-matter
experts have concluded that while symptoms determine diagnosis, the translation
of symptoms into functional impairments and overall disability is the indicator
of impairment in earning capacity.

     Another
important aspect of the review process for each system is the execution of an
econometric earnings loss study.  Each study will provide the data necessary to
determine whether current compensation rating levels accurately reflect the
average impairment in earnings capacity for specific conditions in the current
rating schedule. 

     VA
is partnering with the George Washington University in connection with five
body systems to analyze the income and benefits data.  VA may solicit proposals
from other entities to carry out the studies for the remaining body systems.

     Currently
proposed rules to revise three body systems are undergoing final review within
VA.  Drafts of proposed rules for ten more body systems are underway, and all
will incorporate the results of the earning loss studies. 

     This
week, public forums will be completed for the four remaining body systems.

     We
at VA recognize the importance of insuring that the VASRD meets the needs of
veterans in the 21st Century.  Through a successful modernization and revision
of the rating schedule VA is anticipating and proactively preparing for the
needs of Veterans and their families.

     [The statement of Tom Murphy appears in the
Appendix.]

     Mr. RUNYAN.  Thank you, Mr. Murphy. 

     Mr.
Campbell, you are now recognized for your statement.

STATEMENT
OF JOHN CAMPBELL

     Mr. CAMPBELL.  Thank you, Mr. Chairman. 

     Good
morning Ranking Member McNerney and members of the subcommittee, thank you for
the opportunity to be here this morning to discuss the Department of Veterans
Affairs Schedule for Rating Disabilities known as VASRD as it applies to the
Department of Defense. 

     I
am pleased to be on a panel with my colleague from VA's Veterans Benefits
Administration, Mr. Thomas Murphy.  I am also joined this morning by Dr. Jack
Smith from DoD's Health Affairs, Colonel Daniel Cassidy from the Army, Captain
Frank Carlson, and Robert Powers from the Navy.  

     DoD
uses the disability evaluation system to determine if a servicemember is fit
for continued military service, and if found unfit servicemembers are retired
or separated with disability benefits for service-connected injuries, illness,
or diseases. 

     As
you know, in order to achieve more consistent disability ratings assigned by
the military departments and the Department of Veterans Affairs the national
defense authorization Act of 2008 required the military departments to utilize
the VASRD for making determinations of disability ratings without deviating
from that schedule. 

     VA
disability ratings are based primarily on the degree of impairment by injuries
incurred or aggravated while on active duty while the VASRD percentage ratings
represent the average impairment and earning capacity in civil occupations.

     Military
departments use the VASRD disability rating to determine whether an unfit
servicemember will be retired or separated with disability benefits. 

     As
you can see the two departments use the VASRD for different purposes and there
are some instances where VASRD ratings are not relevant to DoD's requirements. 

     Sleep
apnea, for example, discussed in detail in my written statement is a perfect
one where exceptions to the strict application of the VASRD should be allowed
in certain circumstances. 

     In
May 2011 VA Secretary Shinseki proposed draft legislation to the Congress
entitled the Veterans Benefits Programs Improvement Act 2011 in which he
requested that period for reevaluating former servicemembers with traumatic
mental health conditions be extended from 6 months to 18 months following their
release from active service.

     Reevaluating
servicemembers within six months following the separation has a significant
impact on limited behavioral health resources and may be of mental benefit in
determining a change in those mental health conditions.  

     We
support the proposed legislation as an initial step toward standardizing the
requirement for the military departments to reevaluate former servicemembers
with traumatic mental health conditions, specifically post-traumatic stress
disorder who are placed on temporary disability retirement as the same time
frame established for reevaluating other medical conditions. 

     Ultimately
the DoD would prefer to eliminate mandatory reevaluation for all traumatic
mental health conditions. 

     Our
recommendation is to treat these conditions like all others, that is to set
reexamination requirements only when necessary and to rate the condition at its
observed level of severity rather than at a 50 percent minimum. 

     While
the department recognizes that the VA's secretary ultimate responsibility and
decision of authority for the content of the VASRD, the department believes it
should have more developmental input given the direct connection between the
VASRD ratings and the decision to place servicemembers on medical retirement
lists with annuities, benefits, and health care. 

     Moreover
we appreciate VA's outreach to include DoD in the body system rating update
review that began last year and the service's participation through their
subject matter experts. 

     DoD
plans to continue to participate in VA's public meetings as DoD and VA
leadership continue discussing how to strengthen DoD's role in the VASRD
rewrite process. 

     We
look forward to finalizing a memorandum of understanding with the VA which will
formalize DoD's active voice in the future development and modernization of the
VASRD. 

     Mr.
Chairman, this concludes my opening statement, I appreciate the opportunity to
be with you today and look forward to any questions that you or other members
of the subcommittee have. 

     Thank
you.

     [The statement of John Campbell appears in the
Appendix.]

     Mr. RUNYAN.  Thank you, Mr. Campbell. 

     My
first question is, Mr. Murphy, I know you witnessed what Mr. Hall had to say on
the last panel, and quality of life is a huge part of what
he deals with in his organization, whether we are talking about PTSD and social
anxiety and people's inability and through that whether, they are
driven to give back through charity work  However, through PTSD they
are having social anxiety or are not able to kind of unwind a little bit
because of something that was created. 

     Would
the VA agree that there is a need to take a look at that type of thing?

     Mr. MURPHY.  The VA has to function within its statutory limitation, which is
we are limited to providing compensation for average impairment of earnings. 

     So
along those lines any compensation for quality of life would be beyond the
authority that we have to compensate veterans.

     Mr. RUNYAN.  Okay.  There has been recommendations that the entire ratings
schedule be revised.  Is the VA considering that at all?

     Mr. MURPHY.  The VA is in the middle of a program of an entire look top to bottom
of the rating schedule.  In fact as of this week the last of the 15 body
systems is currently under revision.

     Mr. RUNYAN.  And I know our timeline has been dragging quite behind on a lot of
that stuff.  Is there any finality in the near future on any of that?

     Mr. MURPHY.  Yes.  Three of the regulations are in the final draft mode, one of
those is sitting with our Office of General Counsel, ten of them are in draft
rule making phase, and the additional four are just entering that phase as of
this week with the VASRD form going on in New York City. 

     Mr. RUNYAN.  Okay.

     Mr. MURPHY.  We realize that this is a very important process that has a
significant impact on the veterans of this Nation, but on the other hand this
is a process that needs to be done right, and a little extra time now can save
us a significant amount of time in making sure we do it right for veterans the
first time.

     Mr. RUNYAN.  In talking, other conversations we have had in dealing with--and
it came up in the last panel too--the veterans lack of understanding of the
process.  Is there any attempt at the VA to address the lack of education and
how the veteran understands the rating system? 

     Because
I think that is one of the big disconnects, when people have the information
they understand the process they are a lot more comfortable with it.  I think
that the education aspect of it and how to move forward is important.

     Now
are we doing that early on or are we doing it after there is a problem and
everybody is frustrated and at that the point a lot of times it is hard to
break that barrier down?

     Mr. MURPHY.  VA is doing some significant work to fix that very issue.  It is in
VA's best interest and the best interest of the veteran for everybody to
understand exactly what is going on in this process. 

     So
there is a couple of things that are happening right now.  We have introduced
what is called a DBQ, disability benefits questionnaire.  Standardized
evaluation, medical evaluation, 81 of them currently in use by all VHA
practitioners.  We are in the process of releasing those to the general
public. 

     We
talked earlier, the earlier panel discussed some comments about a veteran not
being able to understand and have input into the system.  The DBQ evaluation is
the exact same evaluation that you would receive, the exact same form that you
would receive inside provided by a VHA practitioner, and a veteran will very
shortly be able to take that to his private treating physician and submit that
to VA for evidence to rate their claim. 

     On
top of that we have got one of the initiatives in place that Mr. Hall was
talking about on the previous panel, is the simplified notification process. 
We realize that our notification process has a lot of legal explanation in
there and we are in a pilot phase right now simplifying that, taking that into
some plain English and explaining it to the veteran in a way that you don't
need to have a legal degree to interpret.

     Mr. RUNYAN.  And then Mr. Campbell, and I would like Mr. Murphy to respond also,
but starting with Mr. Campbell.

     In talking about the different ratings that we get from the DoD and the VA on the
same thing, do you find any common areas that we can work on there to--like I
said, I think in the previous one, to kind of eliminate that bump in the system?

     Mr. CAMPBELL.  We use the VA Disability Rating Schedule to ascertain whether a servicemember is fit or unfit
for duty and their condition whether they stay in the
service or don't say in the service, and then in the disability evaluation
system we utilize that to help servicemembers move forward in the system.

     Mr. RUNYAN.  But it almost seems like you are using the same set of rules, and
obviously we know how this works, there are two different results out of them. 
Do we need to have a better integration maybe and talking from the DoD to the
VA to kind of smooth that out so this process isn't reinvented as we
transition?

     Mr. CAMPBELL.  I don't believe that the ratings themselves are that different. 
There are some inconsistencies, there are some peculiarities where our
understanding of a rating is different. 

     Like
sleep apnea, as I mentioned in my oral statement, there is a difference there,
but I think in most cases they are pretty consistent.

     Mr. RUNYAN.  Would you agree with that statement, Mr. Murphy?

     Mr. MURPHY.  Yes, I would.  Completely agree with it.  Sleep apnea being a prime
example, we rate it based on the symptoms displayed by the veteran and then the
Department of Defense applies that inside their world to constitute the rating
that they use for continued service.

     Mr. RUNYAN.  Well, I bring that up because that question arises all the time.  It
is something that I think we should probably dig in a little deeper around in
this subcommittee because I think it is a little more frequent than you guys
are aware of and I think that is part of the issue, we go back to the education
aspect, going both ways down that street. 

     So
I thank you and recognize Mr. McNerney.

     Mr. MCNERNEY.  Thank you, Mr. Chairman. 

     Mr.
Murphy, thank you for appearing before the committee today again. 

     Does
the VA intend to publish the proposed VASRD provisions, and if so when will
that happen?

     Mr. MURPHY.  Yes, sir, we will publish each of the body systems as they are
completed through their draft process inside of VA, then we will follow under
the Administrative Procedures Act, we will publish them in the federal registry
as a draft, receive comments from the public, rewrite, if the comments are
extensive and any rewriting is extensive then those drafts will be republished
before a final is published and put into effect. 

     So
there is a significant comment period to come on anybody's system before
anything is put into a final form.

     Mr. MCNERNEY.  One of my questions is the significance of the standards like the
VASRD versus the training, and it seems to me that they are both pretty
relevant and pretty important. 

     I am sure that your specialists are very well trained, but the variance between outcomes is a big problem.  Do you think it is due
to the training or do you think it is due to the sort of subjective nature of
the standards?

     Mr. MURPHY.  I think that is a much more complex question than we give it credit
for, and training is absolutely a part of it.  You have got approximately 3,700
raters spread across 50 plus offices across the country and our challenge in
the training world is how to get each one of them to read a single piece of
evidence and come to the identical conclusion every single time.  And the way
we are attacking that is through as you heard earlier, the introduction of
Veterans Benefits Management System by introduction through the disability
benefits questionnaire.  And the answer is we attack that by standardizing the
process as best we can and putting it into a uniform format which leaves the
individual to come to the same conclusion given the same set of evidence. 

     We
think that the disability benefits questionnaire is going to give us
significantly strides forward in obtaining the quality goals that we have in
front of us.

     Mr. MCNERNEY.  I hate to jump around but I only have five minutes. 

     One
of the issues that seems to be coming up today is the disparity between
physical disabilities and mental disabilities and the difference in
compensation between those two sort of categories, and I understand that they
are different in terms of how to evaluation and the difficulty and so on. 

     What
do you think the barriers are to
adopting standards for mental disabilities compensation?

     Mr. MURPHY.  Mr. McNerney, that is the very reason we are doing the revision of
the VASRD, to eliminate the recommendations that were coming from three or four
different committees in here, and we are going through it to eliminate the
variances that we are talking about and to identify a process that is a better
representative of the disabilities that veterans are suffering.

     Mr. MCNERNEY.  What are the barriers?

     Mr. MURPHY.  I don't think that we have barriers sitting in front of us.  We have
gathered the best medical professionals we can both inside and outside the VA,
so private sector and inside the government, and we are significantly down the
road on the draft rule making process of that. 

     So
the identification of what are those barriers will come with the publishing of
the draft regulation in the near future.

     Mr. MCNERNEY.  But you yourself stated that physical disabilities are considered
to be compensated appropriately where a mental disabilities are not.  So we
still have a long ways to go then in terms of developing standards as I would
understand it.

     Mr. MURPHY.  I quoted one of the reports from the Center for Naval Analysis that
they considered.  Center for Naval Analysis considered physical disabilities to
be adequately compensated and that mental disabilities to be undercompensated,
and with that piece of information when we go into the draft rule making
process it guides us where we want to go with the medical advisors and
practitioners that we have to insure that we are adequately compensating for
the disabilities that are suffered by veterans.

     Mr. MCNERNEY.  Mr. Campbell, the Veterans’ Disability Benefits Commission study
found that there were variances in the way that DoD rates disabilities in
comparison to the way the VA rates disabilities.  As you probably know the VA
also had its own issues with variances between raters and regional offices. 

     What
steps would you recommend to gain more consistency in rating between the VA and
the DoD?

     Mr. CAMPBELL.  Mr. McNerney, I wanted to correct a statement I made earlier, I
didn't really understand the question.

     In
terms of the integrated disability evaluation system the DoD uses the VA
disability ratings to insure greater consistency in the outcomes for servicemen
and women.  That process that we have in place does insure a greater
consistency that the ratings were the same.

     Mr. MCNERNEY.  Within the DoD.

     Mr. CAMPBELL.  Within the DoD.

     Mr. MCNERNEY.  What about the variances between DoD and VA?

     Mr. CAMPBELL.  Well, within this particular system there should not be any, you
know, any differences.

     Mr. MURPHY.  Are we referring to the differences between, for example, a veteran
may come to VA and get a rating of 70 percent, but through the IDEA process
would get a percentage that would be lower than that based on the fact that the
DoD rates on unfitting conditions as opposed to VA looking at assessment of the
total veteran?  Is that the differences in rating that you are referring to?

     Mr. MCNERNEY.  Yes.

     Mr. CAMPBELL.  Oh.  Well we just rate the condition found unfitting for the
servicemember, the VA rates for all conditions, unfitting and anything else
that the VA doctors determine as a condition to be rated.

     Mr. MCNERNEY.  How do you both feel about the ICD, International
Classification of
Diseases and VA adopting something, again at least for the physical side?

     Mr. MURPHY.  I would recommend that we not limit our self to just the ICD-9
codes.  It is an option as opposed to the option.

     And
the reason I say that is, is it is something that is being considered under the
revision for the VASRD, we are also looking at the AMA guides and we are
looking at the World Health Organizations International Classifications on
Functioning, and the point being that we are so early in the draft process here
that there are no options that are off the table and ICD-9 codes being adopted
as the standard is certainly in the discussion.

     Mr. MCNERNEY.  Thank you, I am going to yield back here.

     Mr. RUNYAN.  Thank you, Mr. McNerney. 

     Mr.
Walz? 

     I
dropped the ball on the first round, he is a visiting member, so.

     Mr. WALZ.  Thank you very much. 

     Well
again, and I have to congratulate you, Mr. Chairman, you did what I have been
asking for for a long time, we have VA and DoD at the same table and that is
something.  As a seamless transition guy I can't tell you, but I do in all
seriousness thank both of you.  I can see the effort that is going here, this
is a step in the right direction, it is a very complex issue as, you know, the
chairman and the ranking member have pointed out, but I appreciate you helping
us try and get there. 

     I
just have a couple of things on this.  And I still keep coming back to it, and
I am glad that Dr. Harris is here, because this issue of the science and the
art of medicine as it plays into this is a really difficult one to navigate. 

     The
difficulty I know in DoD is you are determining fitness for war fighting duty,
VA is taking care of our veterans, and so I mean many times I preach that
gospel of seamless transition, I do understand that your core missions are
different, even though that that main focus is on that veteran, so thank you
for being so candid with us, thanks for trying to help us understand a way we can
do that. 

     I
guess maybe to you, Mr. Campbell, just asking this, during that PEB, and I
follow up a little bit on Mr. McNerney's point on, who advocates for the
veterans during a PEB or for that warrior?  Who is there to advocate for them
if you will? 

     Because
that is a pretty important time, right, when they are in an evaluation board
there are medical things. 

     I
am just asking from a standpoint of I think of this, and maybe I am approaching
this wrong, I had in my own personal time I had 20 years of service right after
September 11th, wanted to re-up, had to do a medical review board, deemed I
couldn't hear, imagine that 20 years of artillery so I couldn't hear and that
was deemed up fit.  So I went back, got a civilian doctor, did some work, got that
done, came back and was allowed to re-up. 

     I
was advocating for myself to stay in to do service and all of that, who is
advocating for these guys on when they are hurt?

     Mr. CAMPBELL.  I brought some subject-matter experts with me who actually
were on the ground.

     Mr. WALZ.  That will be helpful.

     Mr. CAMPBELL.  And I ask Colonel Cassidy if he would like to respond to the
question.

     Colonel CASSIDY.  Thank you, sir. 

     As
far as advocates during the medical evaluation board and physical evaluation
board process we have a number of advocates.  One that you are most familiar
with is the physical evaluation board liaison officer are kind of counselors
and that kind of shepard the soldier or servicemember through the process. 

     I
think your direct question is who assists as far as when there are issues with
the fitness determination or ratings.

     We
have an Office of Soldier Counsel that is subordinate to our medical department
that are lawyers for the most part that are trained in both--they have gone to
the VA school for ratings, and attend our training courses so
they are absolutely familiar with the VA schedule for rating and our fitness
standards so they would be direct advocates that would go before the physical
evaluation board to argue for a soldier. 

     And
then recently within the last two years we have put a medical evaluation board
counsel down at each of the MTFs to assist the soldiers with understanding
their medical evaluation boards and helping them through that appeal process.

     Mr. WALZ.  This kind of goes to the heart of what the chairman has been saying
about understanding the process, especially important here when people are
looking at careers and things that can go forward about those wanting to serve
as we heard from the previous panel talking about trying to get it there, so
these are advocates while they are part of DoD, but they are advocates for
those veterans, that is their specific purpose to make sure you are that all
their rights and responsibilities and things that that soldier needs and has
are being advocated for.

     Colonel CASSIDY.  Sir, with the office of soldier counsel that is absolutely
correct.  They similar to a defense lawyer.

     Mr. WALZ.  Yeah, I was going say, they are a public defender or whatever.  Is
that adequate, is there a need no outside counsel with those or does that
really make it hard?

     Colonel CASSIDY.  The soldiers are not just limited to the office of soldier counsel,
they can bring in private attorneys, we have a number of pro bono attorneys that represent
soldiers or they can bring in any representative they choose.  We have had
disabled American vets, American Legion have come to represent soldiers.  So it
is not limited to just those.

     Mr. WALZ.  Okay, I appreciate that.  I am running out of time I want to throw a
quick one at you, Mr. Murphy. 

     I
know we are in a transition stage here, the paperless system at Winston Salem,
the only problem I am having and I am totally cognizant and empathetic to you
on this, once you go paperless there is no transition between the papered world
and the paperless world, so when claims end up down there we can't get them
back if there is problems; is that correct?

     Your
people down there have been fabulous on helping us with some problems as we
have called in, the problem for the veteran is, is that I know you are moving
in the right direction, I know moving to that paperless system is going to take
a little while, but the lack of communication--are we addressing that or is
this a growing pain that we are going live with?

     Mr. MURPHY.  You are talking about the BDD--

     Mr. WALZ.  Yes.

     Mr. MURPHY.  --claims that are being processed in Winston Salem in the individual
environment?  

     Okay. 
The electronic record is the system of record, that is the official I want to
see it, that is it, that is the electronic record.  The documents that are
retained after that are literally stored in big boxes in a gigantic room.

     Mr. WALZ.  Yeah.

     Mr. MURPHY.  In terms of from a legal standpoint the source document just became
the electronic world that you are seeing as a result of the BDD.

     Mr. WALZ.  Okay.  And this growing pain of moving back and forth, it left St.
Paul, went down there, that is--I mean they are going a great job of
troubleshooting these, but I am just afraid again that burden of backlog of
claims of troubleshooting for congressional inquires is a very inefficient way
to go about business, but--

     Mr. MURPHY.  It is, but it also is an avenue for veterans that are not taken care
of adequately through the system to address their concerns and to make things
right for them.  So it is a necessary process.

     Mr. WALZ.  I appreciate it.  Thank you, Mr. Chairman.

     Mr. RUNYAN.  Thank you, Mr. Walz. 

     Mr.
Harris?

     Mr. HARRIS.  Thank you, Mr. Chairman, and again thanks to the committee for
letting me sit in, because I do want to scratch the surface of this a little
bit. 

     Mr.
Murphy, in the 2011 Performance and Accountability report, you know, there is a
lot of talk about performance result, but let me ask you, with regards to these
claims are you surveying continuously the claimants for satisfaction
specifically with the process?

     Mr. MURPHY.  We are talking about the veteran's satisfaction with that process as
opposed to the quality of the process?

     Mr. HARRIS.  Yeah, quality.  I just want, you know, if your people centric you
have to have the perception that you are going a good job. 

     And
again, you know, for instance there are these figures that I know the survey
says well, 64 percent of veterans are satisfied with their in-patient care, 55
out-patient care, 97 percent with the appearance of veteran cemeteries.

     Mr. MURPHY.  Yeah.

     Mr. HARRIS.  I got to tell you, you know, by that time it is a little too late. 
You have got to have done everything right up until that time.

     Mr. MURPHY.  Absolutely.

     Mr. HARRIS.  So do you continuously survey for satisfaction on the veteran's side
with regards to claims processing?

     Mr. MURPHY.  We are, yes.

     Mr. HARRIS.  And what is the results?

     Mr. MURPHY.  And we are expanding that process now.

     Mr. HARRIS.  What is the result and what--

     Mr. MURPHY.  I am not able to talk to the results of that, but let me give you a
little bit of background ream quick on what we are doing. 

     We
hired J.D. Powers & Associates because of their reputation for quality and
we want a straight answer, solid feedback to us on where we are doing wrong. 

     We
are expanding it to look into multiple areas.  We started in the benefits
assistance service specifically around phone centers, public contact centers,
and interaction points with the veterans. 

     So
we recognize that it is there, we are expanding where we are using their
services to tell us about veteran satisfaction, and I am sorry, sir, but I am
unable to give you the numbers on that today.

     Mr. HARRIS.  Okay.  And if they come available if you would share them I would
appreciate that. 

     Hopefully
again we are going take some active measures.  Because again, I am here because
we are getting so many complaints that things are taking long. 

     With
regards to the 1.3 million figure for claims, are those new claims filed or
that is just existing claims--

     Mr. MURPHY.  You mean like in original claims?

     Mr. HARRIS.  Yes.  Where is the 1.3 million, that figure that comes in the
report?

     Mr. MURPHY.  Depending on the time of year that you are looking 20 to 30 percent
are new original never been seen before claims.  The remainder are claims for
increase and other types of changes to existing claims.

     Mr. HARRIS.  Okay.  So when the figure is that 1.3 million claims are filed, one
million processed, what happens to those other 300,000?   I mean do they
just--we haven't gotten around to them or is that where the backlog is
occurring?

     Mr. MURPHY.  No, the backlog is all across is board, and the backlog is actually
a measure of any case, with the date clock being the date that it becomes a
formal claim, and it is measured from any claim that is longer than 125 days
since the date it was filed it becomes a part of the backlog.

     So
no, it doesn't matter where you are in that 1.3 million.

     Mr. HARRIS.  And what has been happening to the number of backlog claims in the
past year?  What has been happening?

     Mr. MURPHY.  We struggle internally a lot with what we call working the right
next claim, and the process of developing a claim there is a series of
gathering evidence steps that you go through from service treatment records to
private medical records to examinations, et cetera, and the secret to our success
is going to be that we work the claim that is ready to be rated and moved to
the rating board next.

     When
all of the evidence is presented, it is in the right format, it is in the right
way and it is ready to be made--a decision to be made. 

     So
to look at it and say, well, this one was a simple one issue claim or this one
was a new claim or a claim for increase, it doesn't matter.  The next claim
that has got all the evidence that is ready to proceed to the rating board goes
to the rating board and that is the one the rater works on.

     Mr. HARRIS.  So what are the specific ways you are going to deal with those
300,000 cases that were--you know, the difference between the new claims and
the claims that were processed? 

     I
mean I know the digital claim system is one, but I am a little skeptical that
that will acutely affect it, except in a negative way, because for instance
whenever you take a health system, and you know the VA system has the finest
electronic record in the world, I will bet you it took a while of in that
transition things actually slowed down a little bit. 

     How
are you doing to deal with that as you go towards digital claims?  I am afraid
we are just going to--you know, that backlog is going to grow, not shrink.

     Mr. MURPHY.  Absolutely.  We have a five-year forecast knowing what the number of
claims is going to be, looking at two, three, four, five years down the road,
and the answer is how do we take care of those veterans in less than 125 days
like the secretary has stated as our goal and do it with the resources that we
have currently on board?  And the answer to that is, the only way we are going
to be able to do that is we need to get out of the paper world and into to
digital world. 

     Very
shortly you are going to see the introduction of something called the Vonac
Direct Connect, VDC, it is a 526 claim for disability done in electronic
format. 

     Think
something along the lines of your Turbo Tax interview process completed
electronically.  At the same time the veteran has the opportunity to submit any
private evidence that they want considered in the case, and what just that a
little bit that I just described to you takes months out of our process.

     Mr. HARRIS.  Just as a benchmark what are the percent of claims that are handled
in less than 125 days?

     Mr. MURPHY.  Forty-four percent, quoting Mr. McNerney's numbers earlier talking
about 66 percent being in the backlog, so the inverse of that would be true,
the other 44 percent would not be.

     Mr. HARRIS.  Thank you so very much and thanks to all the members sitting at the
witness table for taking care our men and women in uniform and who have been in
uniform. 

     Thank
you.

     Mr. RUNYAN.  Thank you, Mr. Harris, and I know the ranking member and I have a
couple more questions so we will get another round in quickly. 

     Mr.
Campbell, what purpose does the DoD have in actually giving a percentage
of disability?  For example, why is it that you have to make a rating just say fit or
unfit?

     Mr. CAMPBELL.  I am sorry, would you repeat the question?  I am sorry.

     Mr. RUNYAN.  The purpose of the DoD making a disability rating instead of just an
up or down on whether they are fit for service or unfit for service, what is
the purpose there in the DoD?

     Mr. CAMPBELL.  That is what we are required to do under current legislation.

     Mr. RUNYAN.  Are there thresholds in there that have to be met for certain
pathways that they have to fit into as they are found--what is the threshold
for fit, unfit in your service?  To say you are not fit to continue.

     Mr. CAMPBELL.  There are a number of conditions that need to be met that you can
actually do your job, whatever your MOS is, specifically able to perform the
duties in a proper and efficient way. 

     There
are more specifics, I mean I can get you the actual--

     Mr. RUNYAN.  No, my question is more of it is either able or not able. 

     Mr. CAMPBELL.  Right.

     Mr. RUNYAN.  That is not part of the process, correct?

     Mr. CAMPBELL.  That is the determination that DoD makes.

     Mr. RUNYAN.  And it is just yes or no, up or down?

     Mr. CAMPBELL.  Right.

     Mr. RUNYAN.  There is no percentage involved in this of capability, disabled,
there is none of that involved in that process?  You are 10 percent disabled,
20, 30 percent disabled?

     Mr. CAMPBELL.  Can I ask Colonel Cassidy?

     Mr. RUNYAN.  Certainly.

     Colonel CASSIDY.  Sir, the standard for fitness is as Mr. Campbell indicated whether
or not a soldier in the case of the Army can perform their duties in their MOS,
whether or not there is an impact, the medical condition impacts their
performance of duties in their MOS, whether or not it poses a risk to
themselves or others, and the third criteria is maintaining that individual on
active duty would impose a burden on the military to maintain that individual. 

     I
think the percentage you are talking about is the threshold, the 30 percent
disability rating that is required to receive a military retirement.  That is a
second order type decision.  The first decision that all physical evaluation
boards make is whether or not the servicemember is fit or unfit for each
condition, for all conditions that are identified, then under the integrated
service we turn the case over to the VA to actually determine the ratings for
each condition and then the VA provides those ratings back to the military and
we accept the rating for the military unfitting conditions, which are a subset
of all service connected conditions.

     Mr. RUNYAN.  Thank you very much. 

     Mr.
McNerney?

     Mr. MCNERNEY.  Thank you, Mr. Chairman. 

     I
have a couple things on my mind regarding questionnaires.  Mr. Murphy, you
mentioned the DBQ, and also I was concerned about the WLQ, the work limitation
questionnaire.  How extensive are these questionnaires, how long does it
take to go through them? 

     I
mean one of the things that was mentioned in the prior panels was a 30-minute
interview by a mental specialist is not sufficient to give a proper disability
rating.  So how reliable are these kind of questionnaires and
what is involved in it?

     Mr. MURPHY.  They are extremely reliable.  And the reason I say that with
confidence is they were written by my staff in conjunction with the VHA
doctors, with the Board of Veterans Appeal, Office of General Counsel, we had
some VSO involvement, all the players, all the stakeholders that are involved
in this process sitting down and over the course of months for each one of
these DBQs going through and lining up exactly the questions that need to be
answered in order to rate that veteran. 

     So
what happened in the process is we lined up the disability benefits
questionnaire with the condition in the VASRD.  So when you are completing the
DBQ you are taking the rater to the right parts, to the right decision points
in the VASRD, which is one of the concerns raised by the earlier panel was the
consistency in rating decision, and my answer to that was the DBQ will
significantly improve that quality and consistency and that is how it is going
to happen.

     Mr. MCNERNEY.  And you mentioned, it would be in the
future similar to a Turbo Tax interview.  And when you do Turbo Tax you also
have to have your paperwork behind you. 
How would you enforce or verify the veteran's answers?

     Mr. MURPHY.  With secure access through eBenefits level to similar to the way you
would access your bank account.  We can positively identify who the individual
is.  The form then becomes prepopulated with the information that we know about
that veteran, and as we talked just a few moments ago, 60 to 70 percent or 70
to 80 percent of the veterans are claimed for increase, we already have a
history of that veteran. 

     So
when the veteran comes in to file that claim form I prepopulate it with the
information from that individual veteran and then they explain to us what the
additional conditions or increased impacts are and then we assess it from
there. 

     For
a new veteran coming in it would be as simple as we prepopulate the information
from our DE214 service records and other service treatment records that we may
already be in possession of for that individual.

     Mr. MCNERNEY.  Okay, sounds reasonable. 

     How
long would it take for a veteran to finish one of these questionnaires?

     Mr. MURPHY.  Going through what we call the wiring diagram, electronic version of
it that I sat through last week, 30, 45 minutes on a relatively simple case. 

     It
obviously has to be tied back to the complexity and the number of contentions
that the individual is doing and the individual circumstances for that veteran.

     Mr. MCNERNEY.  Well, one of the inconsistencies that I am aware of is veterans
with mental disabilities are generally speaking not able
to work and continue to receive disability benefits.  Is that something that we
can address here?

     Mr. MURPHY.  Are we talking back to tying that back to the completing the
electronic claim??

     Mr. MURPHY.  Yes.  That is absolutely one of the issues being addressed in the
revision of the VASRD. 

     What
we don't want to do is we don't want to put a negative incentive saying that
if---

     Mr. MCNERNEY.  Right.

     Mr. MURPHY.  --I receive treatment, I become better and I go back to work, I put
a negative disincentive to stay home because if I go to work it is just going
to offset what I am already making by sitting at home.  So that is being
addressed in the draft regulations.

     Mr. MCNERNEY.  Okay, Mr. Chairman, I yield back. 

     Mr. RUNYAN.  All right, Mr. Walz, nothing further?  

     I
thank you gentlemen on behalf of the subcommittee for your testimony and we
again welcome working closely with all of you as we tackle these impacts that
we are having on our veterans, and you all are excused. 

     I
now invite General James Terry Scott to the witness table.  General Scott is
the Chairman of the Advisory Committee on Disability Compensation. 

     I
welcome you, General, and your complete statement will now be entered into the
hearing record and you are recognized for five minutes. 

     Sir,
is your mic on?  

     General SCOTT  I think it is on now.

     Mr. RUNYAN.  There we go.  Thank you.

STATEMENT
OF LTG JAMES TERRY SCOTT USA (RET.), CHAIRMAN, ADVISORY COMMITTEE ON DISABILITY
COMPENSATION

     General SCOTT  Okay.  I am glad to be here with you today representing the Advisory
Committee on Disability Compensation. 

     This
Committee is chartered by the Secretary of Veterans Affairs under the
provisions of the U.S. Code and in compliance with Public Law 110-389 to advise
the secretary with respect to the maintenance and periodic readjustment of the
VA Schedule for Rating Disabilities. 

     Your
letter asked me to testify on the Advisory Committee's work to date and my
views on the work being done by the VA to update the disability rating system. 

     Our
focus has been in three areas of disability compensation.  Requirements and
methodology for reviewing and updating the VASRD; the adequacy and sequencing
of transition compensation and procedures for servicemembers transitioning to
veteran status; and disability compensation for non-economic loss, often called
quality of life. 

     I
am prepared to answer questions about these areas of focus.  These are now for
the record.

     After
coordination with the secretary's office and the senior VA staff we have added
review of individual unemployment, review of the methodology for determining
presumptions, and review of the appeals process as it pertains to the timely
and accurate award of disability compensation.  These issues will be addressed
in our next report to the secretary and the Congress.

     Regarding
the current project to update the disability rating system I believe the
project management plan that the VA has laid out will achieve the goals sought
by all. 

     The
revised VASRD will be a guide for veterans, medical examiners, and claims adjudicators
that is simpler, fairer, and more consistent than the current process.

     The
secretary and the VBA should be commended for undertaking this long overdue
revision, which has been repeatedly called for by the Congress as well as
numerous boards, studies, and reports. 

     Some
of you may recall former Senator Dole's observation at the congressional out
brief of the Dole-Shalala Commission where he said that the VASRD at that time
was 600 pages of band-aids.  While perhaps an overstatement, his views reflect
those of many of the participants in commissions and studies.

     The
revision of the VASRD is not a stand alone operation, it is part of a larger
effort that includes electronics claims filing, use of disability
questionnaires, and improved claims visibility at all stages. 

     In
my judgment, many of the current VBA initiatives depend on a successful and
accepted revision of the rating schedule.

     Some
stakeholders have expressed concern that the revision effort may adversely
affect current and future veterans.  My own view is that if properly done the
revision will simplify and expedite claims preparation, medical examinations,
and claims adjudication.  These will in turn help the VBA reduce processing
time and increase accuracy.

     Consistency
among raters and regional offices, another recurring area of concern, should be
improved.

     There
is an inherent resistance to change that must be overcome through involving all
the stakeholders in the process and insuring that the purpose and results of
the revisions are understood.

     A
concern, which I share, is that the process is not scheduled for completion
until 2016; however, the scope and complexity of revising and updating all 15
body systems is daunting. 

     The
first major step, gathering and assembling the medical data for all body
systems, is well along.  The forums at which each body system has been
discussed by leading medical experts have resulted in broad agreement on how to
update medical terminology and medical advances.

     The
work groups of subject-matter experts for each body systems are now analyzing
the results of the forums in order to develop specific proposed changes to the
schedule.

     The
econometric data sought in conjunction with George Washington University will
assist in determining the relationship between specific conditions and average
impairment of earnings loss.

     The
process, to include publishing draft changes in the federal register offers all
stakeholders an opportunity to request clarifications and make comments.  I
believe that this step will protect current and future veterans from unintended
consequences as revisions move toward implementation.

     The
Advisory Committee is involved in all steps in this rating schedule revision
process.  As an outside advisory committee we are able to offer advice and
suggestions directly to the secretary and VA management.  We listen closely to
the subject-matter experts from outside sources who meet with us as well as to
the VA professionals who are leading the effort.  The members have an
opportunity to ask questions, offer suggestions, and track the progress of the
revision.  We are a sounding board for options and proposals.

     The
committee includes experience and expertise from DoD, VA, the congressional
staff, disability law, family programs, and the VSO community.  Our meetings
are open to the public. 

     Some
of the presenters who come from the outside have somewhat radical or out of the
box ideas.  We listen to them carefully and move on. 

     And
one of the problems we occasionally run into is that an outside presenter with
a very you might call an innovative solution to our problems may propose a
solution that causes people's hair to get on fire, but we have that under
control.  That is just one person's presentation.

     In
conclusion, Mr. Chairman, the Advisory Committee on Disability Compensation is
deeply involved in the VA project to revise the VASRD. 

     We
appreciate the openness of the VA leadership and staff to our questions and
recommendations.  We recognize that even the best revisions will not solve all
the complex issues of disability compensation, but the members believe that the
updated schedule will address many of the noted shortcomings of the current
version, such as outdated medical terminology, outdated diagnosis and treatment
regiments for illnesses and injuries, changes in today's social and work
environment, and the apparent earnings loss disparities between mental and
physical disabilities.  It will also offer an institutional process for future
updates.

     Thank
you for your attention and the opportunity to testify.  I look forward to any
questions you may have.

     [The statement of James Terry Scott appears in the
Appendix.]

     I
will start the questions.  Addressing this committee last year put forth a
recommendation to develop and implement new criteria specific to PTSD in the VA
Schedule for Ratings Disabilities.  Can you identify those deficiencies
veterans with PTSD could suffer with the currently schedule?

     Obviously
the problems that we have and obviously dealing with mental disorders right now
I think and talking to people it is still kind of a gray area and there is a
lot to learn scientifically on how we move forward, but what are they
specifically in the ratings?

     General SCOTT  Well, the Center for Naval Analysis on behalf of the VDBC, which I
chaired some years ago, their analysis showed that veterans suffering from
mental disabilities were undercompensated across the board based on their
average earnings loss, and they also showed that those with physical
disabilities were compensated quote about right. 

     So
one of the things that we are looking at is how do we think about changing the
rating schedule to accommodate that?

     You
know, 100 percent is 100 percent, So that is about all, you know, you can't
really go above that, but what I think you are going to see at the end of the
day is that PTSD, the degree of disability associated with PTSD is going to be
recognized in terms of a higher percentage of disability rating that is
assigned.  In other words, I think you will see more people who are suffering
from the more severe PTSD rated at 100 percent or at 70 percent as opposed to
the lower percentage that the current criteria seems to place them at. 

     Does
that answer your question, sir??

     General SCOTT  Well, I think it is being done inside the revision of the mental
disability body system.  That is in my judgment probably the very toughest one
of the body systems to revise.  None of them are easy, but this one is
certainly the toughest because there is a certain amount of subjectivity
involved in this as we all recognize. 

     So
you have got to get a good diagnosis, and I think that the medical community
that has been working with the revision is well on the way to that. 

     The
second thing is you have got to say well, how bad is this?  What is the average
earnings loss going to be for this individual? 

     And
I keep coming back to that because that is the basis of which as you well know,
sir, that disability is compensated, that is what--there is a lot of discussion
about well, what about quality of life and all that, and it is very important,
and I have some strong views on that, but the statutory or the legislative
ability to deal with the disabilities is pretty much centered on average
earnings loss. 

     And
I believe that that will get us pretty far down the road of saying, okay, well,
this individual is suffering so greatly from either PTSD or a combination of problems
that he will be rated at 100 percent as opposed to something less than that for
people who aren't. 

     And
I realize that is a major concern of all the stakeholders, is how can you fairly
do that?  And I believe we are going to come up with it.  I know there is some
concern about that. 

     I
believe that the VA is going to come up with it.

     General SCOTT  Right.

     Mr. RUNYAN.  --and you know, I have had the discussion with many
people, do we actually have the manpower or the structure in the VA to establish
a lot of that?  And I think that is another question that arises with that. 

     So
thank you for that. 

     Mr.
McNerney?

     Mr. MCNERNEY.  Thank you, Mr. Chairman. 

     Thank
you, Lieutenant General Scott for your hard work, for your service to our
country, and for your free and thoughtful answers here this morning. 

     There
has been a lot of discussion about the quality of life and including a
component in the scale of rating.  Do you have any idea how the VA can go
about--I mean you said earlier that you have strong ideas on this issue--on
what tools they have that might be available in the short term?

     General SCOTT  Well quickly I think there are two ways that you can look at quality
of life.  You can look at it as it exists today in saying, okay, there are some
imputed quality of life compensations imbedded in the system as it exists now,
and I would include to some extend the special monthly compensation, some part
of that, and in some cases where there appears to be an overcompensation based
on degree of disability, and you can also say that many of the other things
that the VA does address quality of life. 

     One
could start with medical care if you wanted to.  You could talk about many of
the things that the VA and the DoD are doing together regarding making
transition easier, you can talk about the family care legislation that was
passed by the Congress recently. 

     So
you can take a position that there is currently some compensation for loss of
quality of life or you can take the position that there should be a separate
compensation program for quality of life.

     My
personal view on that is that if that is the direction that the Congress and
the VA want to go that it needs to in many ways model the special monthly
compensation program so that the criteria are clear and definite and that the
quality of life additional payment, if you will, goes to people who obviously,
clearly, and without question have lost some quality of life.

     The
studies that were done for the VDBC would indicate that at some of the lower
levels of disability there is not significant loss in quality of life, but that
at the higher levels, particularly when you start talking about paralysis,
amputations, blindness, and on and on, the very serious disabilities that an
argument can be made that there is so much quality of life that is not
compensated by the current system that it should be addressed. 

     What
the VDBC said was that we should consider and up to a 25 percent increase in
the compensation for serious loss of quality of life.  Now up to, that is how
we get to the very seriously disabled where it is obvious cases that quality of
life is tremendously impacted, and it also addresses the issue that at some of
the lower levels it is--the data would show that there is not a significant
impairment to quality of life, and that would be my position on it, and that is
my position only, not reflecting the committee's or the VA's.

     Mr. MCNERNEY.  So do you identify any tools that could be used in helping to
quantify quality of life impairment?

     General SCOTT  I think it would start with what is the degree of degradation of
quality of life based on the physical or mental disability? 

     In
other words, I think if you could start by looking at people who are in the 100
percent category or somewhere near that and that is where you would start
looking to see how much degradation of quality of life might be associated with
their particular disability. 

     But
again, I think the parameters have to be clear as to what we are talking about,
what disabilities we are talking ability, what impacts, it would have to be
some pretty complex legislation or rule making, because what you don't want to
do is organize a parallel system that more or less encourages people to seek a
higher level of disability compensation in order to break into the area where
quality of life might be added on. 

     In
other words, you can't just base it on percentages, it has got to be based on
something besides that.

     Mr. MCNERNEY.  Okay, thank you, Lieutenant General.

     Mr. RUNYAN.  Thank you, Mr. McNerney. 

     Mr.
Walz?  

     Mr. WALZ.  Thank you, Chairman. 

     Thank
you, General.  I think your last statement was very true, I think about it for
most of us quality of life on the lowest of the disability ratings is hearing
is certainly impacted if you can't hear your children in the morning or whatever
it might be. 

     General SCOTT  Right.

     Mr. WALZ.  So this is a complex issue. 

     I
will ask you, General.  You sat here and you got to hear, and I would argue
that both the panels are advocates for veterans, but we heard our VSOs and some
folks on the first panel, experts in VA and DoD, how do you respond to some of
the things that you heard during that, some of the suggestions, maybe the
individual physician assessments and some of those types of things? 

     I
know it is a very generalized question, but it worked out well that you got to
hear both sides and your job is unique that you are a VA under law entity, but
you are advocating for all those veterans.

     General SCOTT  Well, I will be glad to make a couple comments about ICD if you would
like.

     Mr. WALZ.  Yeah, that would be great.

     General SCOTT  What the Veterans Disability Commission recommended regarding ICD is
that it be considered as an appendix to the regulation.  So it is there, it can
be used, it should be used, but the problem with incorporating it in with the
regulation then it really gets tough to change, but if you made it an appendix
to the regulation then when they go to ICD-10, which I think is in the mill
somewhere right now, then you just change an appendix and we don't have to try
to get a regulation change done. 

     So
to me that gives the opportunity for the medical professional who is doing the
examination to use the standardized codes that are well understood by all
without getting into, well, you know, now we have chipped it into cement by
putting it into the regulation as ICD-9, and then as we all know sooner or
later it is ICD-10 and then it is 11, and so what do you do, but you could
change an appendix without having to go back and change the regulation, if I understand
it right. 

     So
that would be the approach that I would take to integrate the ICD, kind of the
commonly accepted medical terminology into the system. 

     Also
understanding as was pointed out by some others that there are unique
situations and medical conditions that are not going to be found in the ICD,
and they will still have to be worked into the VA system through the
regulation.

     In
other words, there are some things are aren't going to be covered by ICD-9 or
10 or 11 or whatever and they are going have to be accounted for. 

     And
one of the things that I believe that this revision will do, I think it will
make it less of a requirement to use individual unemployment as a catch-all for
people that you don't know what to do with. 

     In
other words, if we get this revision right it should be clear enough that the
disabilities of the veteran fall into categories and we should get the
percentages right so that we don't have a huge number of people that can't
work, but their disability is not recognized inside the system at say the 100
percent level or whatever. 

     And
so I think we can over time in the long run reduce the number of instances of
individual unemployment by getting the revisions right. 

     One
of the other things that was mentioned was outreach.  Somebody mentioned what
is the outreach program?  I would give Secretary Shinseki very high marks for
attempting to outreach to the veteran's community and to the DoD for outreach
to the servicemembers before they leave the service. 

     Some
years ago it was all pretty perfunctory when people left the service.  You
would say, well, there is nothing wrong with you so we are not going give you a
physical and you don't really need to see anybody, good-bye, hear is your
DD214.  And what occurred then is that you had people who later on developed
problems and sometimes it took a long time to get them as you mentioned sir get
in the system and get them working. 

     So
the DoD is doing I think a very good job in increasing the outreach to people
departing, and I think that Secretary Shinseki has done a very good job of
getting outreach to veterans about how to apply and how to get into the system
and all of that. 

     One
of the things that the VDBC recommended was that all departing servicemembers
from all services have an exit physical.  We all got an entry physical when we
went into the military, but it is still not really standard across the board in
all the services for everyone that there is an exit service.  If you do that
then you have bookends.  You have a you went in here and this was your
condition, you came out here and this was your condition.  It makes it lot
easier for the VA.

     Mr. WALZ.  I couldn't agree more, and especially on the mental health screening,
then we have a benchmark, we know where to go. 

     But
overall if I could, I know my time just ran out, some of the--I wouldn't call
them criticisms--but some of the critiques is, is the process open enough, is
everybody getting their word in, and you on this committee are comfortable we
are moving in the right direction, General?

     General SCOTT  Again, speaking for myself.  I am comfortable that the process is
open.  I mentioned our committee meetings are open to the public, so when
someone comes in they--anyone can come in and listen and at the end of them we
always say does anybody got anything to say, and it can be from the back
benches someone can say, well, what about this or what about that. 

     I
think that the process of developing the regulation that the VA is going
through I think it is open in the sense that we start out the medical forums
are open, people come to them and all of that, once the draft is put
together--you know, somebody has got to sit down with a blank piece of paper
and a typewriter and make a draft, and once the draft is done, and then the
draft needs to be passed around for comment, observation, and all of that, and
the safety valve is a federal register where that draft reg has to be published
for a certain amount of time, anybody that wants to can comment, and then it is
up to VA to take all those comments and suggestions and integrate them as
necessary into it. 

     And
so that is a long answer to say yes, I think the system is as open as you can
make it and keep it moving.

     Mr. WALZ.  I appreciate that. 

     Thank
you, Mr. Chairman.

     Mr. RUNYAN.  Thank you, Mr. Walz. 

     General
Scott, on behalf of the subcommittee I thank you for your testimony and
appreciate your hard work on behalf of our Nation's veterans and your
attendance here today, and with that you are excused.  Thank you. 

     I
want to repeat my desire from the subcommittee's first hearing last year, and
that is to work with members on both side of the aisle to insure that America's
veterans receive the benefits they have earned in a timely and accurate manner,
and I believe assessing and where necessary updating the present state of the
disability rating schedule is another crucial step in the endeavor. 

     I
ask unanimous consent that all members have five legislative days to revise and
extend their remarks and include extraneous material. 

     Hearing
no objection so ordered. 

     I
thank the members for their attendance today and this hearing is now adjourned.

     [Whereupon,
at 12:18 p.m., the subcommittee was adjourned.]

 


APPENDIX


Prepared Statement of Hon. Jon Runyan, Chairman

Good morning and welcome everyone.  This oversight hearing of the
Subcommittee on Disability Assistance and Memorial Affairs will now come to
order. 

We are here today to examine the Department of Veterans Affairs’
current framework for rating Veterans’ injuries, illnesses, and disabilities
resulting from service in our military.

As I mentioned during my opening remarks of our first hearing last
year, my hope is that this meeting of minds sets a precedent and tone for a
broader promise we have made to our Veteran population for the remainder of
this 112th session.

And that is to ensure the entire claims process, the delivery of earned
benefits, and veterans medical services, is transformed into a fully efficient
and modernized system equipped with the best tools available to aid our Veteran
population in the 21st century.

Several years ago, a Commission was established on Care for America’s
Returning Wounded Warriors led by former Senator Bob Dole and former Secretary
of Health and Human Services Donna Shalala. The purpose of this commission was
to examine the health care services provided by the VA and the Department of
Defense to members of the military and returning veterans.

Around the same time, Congress created the Veterans’ Disability
Benefits Commission, established under the National Defense Authorization Act
of 2004. The commission was created by Congress out of many of the same
concerns we still hold today, including the timeliness of processing disabled
veterans’ claims for benefits. 

This commission conducted a 2 year, in depth analysis of benefits and
services available to veterans, and the processes and procedures used to
determine eligibility. Their conclusions were published in a comprehensive
report titled “Honoring the Call to Duty: Veterans’ Disability Benefits in the
21st Century.”

The end result of these reports were several recommendations, including
the goal of updating and simplifying the disability determination and
compensation system on a more frequent basis.

Although select portions of the ratings system have been updated
throughout the last 20 years, these reports refer to the rating schedule as
“outdated,” noting that it has not been comprehensively revised since the
conclusion of World War II.

They recommend the Rating Schedule be updated at recurrent and relative
intervals, due to advances in medical and rehabilitative care, and a greater
appreciation and understanding of certain disabilities, such as PTSD. The more
recent updates to diagnostic criteria for newer types of injuries, such as TBI,
were a step in the right direction.

However, I believe it is our duty to be vigilant in pressing for
continued revision reflecting the continued advances and understanding in
medical care and treatment.  In addition, I am in agreement with their
conclusion that a more candid emphasis on Veteran quality of life should be
taken into account in an updated ratings schedule.

Therefore, we are here today to honor our duty to the Nation’s
Veterans.  Just as we would not issue World War II era equipment and weapons to
our current soldiers and Marines and expect them to be successful of the modern
battlefield; we should not be satisfied with a World War II era system for
evaluating and rating their disabilities as a result of their service and
sacrifice to this Nation.   

I want to thank the VA, the DOD, the present VSOs, and General Scott
for their valuable input as we work together to find important solutions.

I welcome today’s witnesses to continue this ongoing discussion and offer
their own specific recommendations on how to improve the current system of
rating our Veterans’ disabilities. 

I would now call on the Ranking Member for his opening statement.

Prepared Statement of Hon. Jerry McNerney, Ranking
Democratic Member

Thank you, Mr. Chairman.

I would like to thank you for holding today’s hearing.

As we have discussed over the course of many hearings in the
110th and 111th Congresses,the
VA’s claims processing system has many shortcomings which have left many disabled
veterans without proper and timely compensation and other benefits to which
they are rightfully entitled.  Today, 66% of VA’s 886,000 pending claims
languish in backlog status (meaning longer than 125 days).

At the heart of this system is the VA Schedule for Rating
Disabilities (or VASRD).  In its study, the Veterans’ Disability Benefits
Commission (VDBC) concluded that the VA Rating Schedule has not been
comprehensively updated since 1945. 

Although sections of it have been modified, no overall
review has been satisfactorily conducted, leaving some parts of the schedule
out of date-- relying on arcane medical and psychological practices-- and out
of sync with modern disability concepts. 

The notion of a Rating Schedule was first crafted in 1917,
so that returning World War I veterans could be cared for when they could no
longer function in their pre-war occupations.  At the time, the American
economy was primarily agricultural based and labor intensive. 

Today’s economy is different and the effects of disability may
be greater than just the loss of earning capacity.  Many disability specialists
believe that loss of quality of life, functionality, and social adaptation may
also be important factors. 

Our nation’s disabled veterans deserve to have a system that
is based on the most available and relevant medical knowledge.  They do not
deserve a system that in many instances is based on archaic criteria for medical
and psychiatric evaluation instruments.

I know that Congress, in the Veterans’ Benefits Improvement
Act of 2008, P.L. 110-389, directed VA to update the VASRD and to delve into
revising it based on modern medical concepts.  I know that VA, in following
this directive, has undertaken a comprehensive review of the VASRD, and I look
forward to receiving a thorough update on its progress. 

Congress also created the Disability Advisory Committee in
P.L. 110-389.  I welcome General Scott here today who is the Chair of that Committee
and also welcome his insight.  I look forward to the testimony today from all
of the witnesses on the complex issues surrounding modernizing the VA Rating
Schedule.

I know that there is a lot to be done to improve the VA
claims processing system, but with the rating schedule at the core of the
process, it seems that the centerpiece is in need of a comprehensive update.  There
are over 2.2 million veterans of the wars in Afghanistan and Iraq with 624,000
who have already filed disability claims.  There are also so many veterans
whose claims were not properly decided in the past because of the
analogous-based subjectivity that is inherent in the current VASRD.

Since the DoD also relies on this system, and as we
transition to the one exam platform under the Integrated Disability Examination
System (IDES), bringing the VASRD into the 21st Century is so
critical.  We must finish updating it without delay.

I look forward to working with you, Mr. Chairman, and the Members
of this Subcommittee in providing stringent oversight of the VA Schedule for
Rating Disabilities.  VA needs to adopt the right tools to do the right thing,
so that our nation’s disabled veterans get the right assistance they have
earned and deserve.

Thank you, and I yield back.

Prepared Statement of Jeffrey C. Hall, Assistant National
Legislative Director of the Disabled American Veterans

Chairman Runyan, Ranking Member McNerney and Members of the
Committee:

On behalf of the Disabled American
Veterans and our 1.2 million members, all of whom are wartime disabled
veterans, I am pleased to be here today to offer our views regarding the VA
Schedule for Rating Disabilities. 

Mr. Chairman, as you know VA
disability compensation is a monthly benefit paid to veterans for disabilities
resulting from active military service. 
The VA Schedule for Rating Disabilities (VASRD) is the determining
mechanism to provide ratings for disability compensation.  Divided into 15 body systems containing more
than 700 diagnostic codes, the VASRD establishes disabilities by assigning
percentages in 10 percent increments on a scale from 0 percent to 100 percent.  As defined in title 38, United States Code,
Section 1155, ratings must be based on the “average impairments of earning
capacity,” a term that has remained unchanged in the law for more than 50
years.  Congress did not choose to use
“actual earnings loss” or “average earnings loss,” both of which would have
very different results and implications. 
Under this system, a veteran who is able to overcome the impairments in
bodily function caused by their disabilities and productively work is not punished
by a reduction in disability compensation.

Since its last major revision to
the VASRD in 1945, VA continued to make changes to account for new injuries and
illnesses with the developments in medical sciences, however there has been no
comprehensive review or update to ensure that disability categories, rating
percentages and compensation levels were accurate, consistent and equitable for
more than 60 years.  In 2007, both the
Congressionally-mandated Veterans Disability Benefits Commission (VDBC), as
well as the Institute of Medicine (IOM) Committee on Medical Evaluation of
Veterans for Disability Compensation in its report “A 21st Century System for
Evaluating Veterans for Disability Benefits,” recommended that VA regularly
update the VASRD to reflect the most up-to-date understanding of disabilities
and how disabilities affect veterans’ earnings capacity.  In line with these recommendations, in 2010, the
Veterans Benefits Administration (VBA) began a five-year process to update each
section of the VASRD, beginning with mental disorders and the musculoskeletal
system.  It is VBA’s stated intention to
continue regularly updating the entire VASRD every five years. 

Additionally, pursuant to Public
Law 110-389, Congress established the Advisory Committee on Disability
Compensation (ACDC) to help implement the recommendations of the VDBC,
specifically the effectiveness of the VASRD. 
One recommendation from the ACDC was that veterans service organization
(VSO) stakeholders be consulted at several critical moments throughout the VASRD
review and revision process, to ensure the expertise and perspectives of VSOs
were incorporated to produce a better result. 
Unfortunately, over the past two years, there has been little
opportunity for VSO input during the update and revision process.  While VBA has
held a number of public forums and made some efforts to include greater VSO
participation, the process itself does not allow input during the crucial
decision making period.  Because these
public forums were conducted at the very beginning of the rating schedule
review process, veterans service organizations were not able to provide
informed comment, since VBA had not yet undertaken any review or research
activities. 

For example,
a joint VBA-VHA mental health forum was held in January 2010 with VSOs invited
to make presentations.  Since that time,
there has been no opportunity for further VSO review of or input to the
revision process.  Moreover, the VBA
Revision Subcommittee tasked with doing the actual work on the VASRD update was
not even formed at that time. 
Consequently, VSO and other stakeholder involvement really took place
before the actual revision process had begun. 
While the public forum may be part of the official record, it is unclear
whether any of the Subcommittee members actually know of that input.  Over the course of the next two years, there
has been no transparency of the work of this Subcommittee and no opportunity to
provide any input on the mental disorders VASRD update. 

In August 2010, the VBA and VHA
held a Musculoskeletal Forum, which also included a VSO panel.  Additional public forums on other body
systems have been held over the past year, each ostensibly offering an
opportunity for VSO and public input. 
Some of these, however, were held in remote locations, such as
Scottsdale, Arizona, which resulted in less of an opportunity for most VSOs to
observe, much less offer any input.  We
do want to note that VBA has made an effort to increase the level of VSO
participation at some of the public forums, however from that point forward the
process has essentially been closed.

While we are appreciative of any
outreach efforts, we are concerned that but for these initial public forums,
VBA is not making any substantial efforts to include VSO input during the
actual development of draft regulations for the updated rating schedule.  Since the initial public meetings, VBA has
not indicated it has any plans to involve VSOs at any other stage of the rating
schedule update process other than what is required once a draft rule is
published, at which time they are required by law to open the proposed rule to
all public comment.  We strongly believe
VBA would benefit greatly from the collective and individual experience and
expertise of VSOs and our service officers throughout the process of revising
the VASRD.  As the ACDC noted, it would
have been helpful to include the experience and expertise of VSOs during its deliberations on revising the
VASRD.  Moreover, since VBA is
committed to continual review and revision of the VASRD, we believe it would be
advantageous to conduct reviews of the revision process itself so future body
system rating schedule updates can benefit from “lessons learned” during prior
body system updates.

Mr. Chairman, there is no question
that the current VASRD for Mental Disorders (VASRD-MD) has some significant
problems that must be addressed.  As the
nature of mental health disorders has become better understood, and increasing
numbers of returning service members have been diagnosed with such disorders,
particularly PTSD, the flaws of the VASRD-MD have become increasingly
apparent.  Unlike most physical
conditions, the majority of mental health disorders do not have visible symptoms
that can be measured with precision. 
Since the rating schedule relies primarily on objective measures of
symptomology, VBA has struggled to establish uniform and standard ratings for
mental disorders.  DAV and others who
have studied the rating schedule have agreed that there is a need to revise and
update the VASRD-MD in order to achieve consistency and parity for mental
health disorders. 

Unfortunately, however, it appears
that VBA’s efforts to revise and update the VASRD-MD are heading in a direction
that could harm veterans suffering with mental health disorders and potentially
threaten the integrity of the entire veterans disability compensation system.

Following the January 2010 VBA-VHA
public forum on mental health disorders, VBA established a Revision
Subcommittee to review and update the VASRD for mental disorders.  Since that Subcommittee was established
sometime in early 2010, DAV and other VSOs have had no opportunity to engage
with or provide any input to that Subcommittee.   However, based upon two public briefings
made by the Subcommittee over the past year, it appears that they have gone
beyond updating or revising the schedule, and instead are intending to
completely throw out the current system and substitute a dramatically different
process for rating and compensating veterans for service-connected mental
health disorders. 

At a December 2010 meeting of the
Advisory Committee on Disability Compensation (ACDC), members of the Revision
Subcommittee provided a Power Point briefing about their progress on updating
the VASRD-MD.  In that briefing, they
stated clearly that they had “rejected” the entire rationale of the VASRD for
mental disorders, and instead decided to create a brand new one that focused
only on functional impairment, completely eliminating any consideration of
social impairment or other nonwork-related losses or quality of life
issues.  Rather than relying on medical
judgments of the severity of mental health disorders to determine ratings, they
were proposing to rely instead on the veteran’s work performance.  This would be a clear departure from almost a
decade of consistent legislative history about the purpose of veterans
disability compensation.

Mr. Chairman, over the past year,
we have made repeated requests for VBA to explain the new rating system they
have been developing, to answer questions about how and why they are moving in
this direction, and to allow VSO stakeholders to share our input as they
finalize this brand new mental health rating schedule.  Since VBA has yet to respond to any of our
requests, we are left with a number of troubling questions.

According to what was presented at
the ACDC meeting, and confirmed again at the ACDC meeting in October 2011, the
new mental health rating schedule would rely on how often a veteran was unable
to work or was impaired in working effectively. 
For example, based upon their current draft proposal, a veteran who was
unable to work two days per week would be rated at 100 percent, a veteran who
had decreased work productivity or quality two days per week would be rated at
70 percent, a veteran who missed appointments or deadlines one day per week
would be rated at 50 percent, and so on using various other combinations of
work productivity and quality measures. 
Basically, the less a veteran worked, the more he or she would be
compensated.  In effect, rather than
compensate for “average impairments of earning capacity”, under this approach a
veteran would be more closely compensated for his or her personal loss of earnings. 

Such an approach is not only
directly contrary to existing statute and legislative history and intent, it
also raises a number of troubling questions about how such a system would work
and what effects it would have on veterans and the disability compensation
system.

For example, how would VBA measure
a veteran’s reduced work productivity? 
At the December 2010 ACDC briefing, the Subcommittee indicated that
their proposal was based on a business and industry tool known as the Work
Limitations Questionnaire (WLQ), which was developed to measure productivity
losses for the business due to employees’ health problems, and the impact that
medical care and other intervention programs might have to mitigate such
losses.  The WLQ relied upon confidential
responses from employees about how their health conditions were affecting their
productivity and performance. 
Aggregating this data, the business or industry could then determine the
economic cost of health problems, and the economic benefit of various treatment
and intervention programs.

What is yet to be answered is how
such a tool would work for the VA disability compensation program.  Does VBA intend to use this same tool to
determine how much compensation to pay a veteran?  Will VBA simply rely on self-reporting to
determine ratings or will they seek to verify the impact on work performance by
contacting employers?  How would they
confirm or refute a veteran’s contention that his mental health disorder is
decreasing his work quality?  Would VBA
have to obtain and analyze employees’ personnel records and performance
reviews? 

Such a system that looks only at the
individual veteran’s ability to work raises other troubling scenarios.  What of a veteran who has a law degree, but whose
severe PTSD makes it so difficult to work around other people that the only job
he can perform is as a night watchman or janitor?  Since he is able to work productively 40
hours per week, does that mean he is not entitled to any VA disability
compensation?

Moreover, we are concerned about a
statement made by VBA’s Revision Subcommittee that this “…model based on the
Work Limitations Questionnaire can be applied to service-connected disability
in all body systems.”  What would that
mean for other types of disorders?  Would
a veteran whose legs were blown off by an IED in Iraq, but who has struggled
mightily to overcome that disability and is working productively in a full-time
job, lose his disability compensation? 
Would a veteran who suffered severe burns and is in constant pain, but
works through that pain, be denied full compensation?

We believe that disability
percentages should be based on a medical determination with emphasis being
placed upon limitations involving routine activities and not simply a
prediction of how employment may be affected. 
In fact, title 38 of the Code of Federal Regulations, section 4.10, it
states, in part, “[T]he basis of disability evaluations is the ability to
function…under ordinary conditions of daily life including employment…a person
may be too disabled to engage in employment even though he or she is up and
about and fairly comfortable at home or upon limited activity.”  Conversely, even though an individual is able
to engage in employment does not necessarily mean he or she is less
disabled. 

Mr. Chairman, we hope that this
Subcommittee will seek answers to these and other questions about the ongoing
VASRD update process to ensure the integrity and intent of the VA disability
compensation system.

Finally, as VBA completes its
ongoing update and revision of the rating schedule, we strongly believe that it
is time for VA to develop and implement a system to compensate service-connected
disabled veterans for loss of quality of life and other noneconomic
losses.  Under the current VA disability
compensation system, the purpose of the compensation is to make up for “average
impairments of earning capacity,” whereas the operational basis of the
compensation is usually based on medical impairment.  Neither of these models fully incorporate
noneconomic loss or quality of life into the final disability ratings, though
special monthly compensation (SMC) does in some limited cases.  SMC affords compensation beyond baseline
ratings to individuals who suffer the loss or loss of use of one or more
extremities, organs of special sense, as well as other similar
disabilities.  SMC is also provided to individuals
whose service-connected disabilities leave them housebound or in need of the
regular aid and attendance by another person. 
Similarly, when an individual’s service-connected conditions are rated
less than 100 percent, but they are unable to obtain or maintain substantially
gainful employment, Individual Unemployability (IU) may be granted, which would
allow compensation at the 100 percent rate, although he or she may be rated
less than total. 

However, none of these programs
addresses the nonwork losses that may be suffered by veterans as a result of
their disabilities.  While SMC may help
pay for the additional costs a double amputee may incur through their daily
activities, it does not compensate for the extra time, effort, or pain he or
she goes through just to get up in the morning and move forward with the
day.  It certainly does not compensate
for the loss of enjoyment in life activities that can result from severe
disabilities. 

In 2007, the Institute of Medicine looked
at this issue and recommended that the current VA disability compensation
system be expanded to include compensation for non-work disability (also
referred to as “noneconomic loss”) and loss of quality of life.  Non-work disability refers to limitations on
the ability to engage in usual life activities other than work.  This includes ability to engage in activities
of daily living, such as bending, kneeling, or stooping, resulting from the
impairment, and to participate in usual life activities, such as reading,
learning, socializing, engaging in recreation, and maintaining family
relationships.  Loss of quality of life
refers to the loss of physical, psychological, social, and economic well-being
in one’s life. 

The IOM report stated,
"[C]ongress and VA have implicitly recognized consequences in addition to
work disability of impairments suffered by veterans in the Rating Schedule and
other ways.  Modern concepts of
disability include work disability, non-work disability, and quality of life
(QOL)…".

After more than two years examining
how the rating schedule might be modernized and updated, the VDBC agreed with the
recommendations of the IOM study, and recommended that the, “[v]eterans
disability compensation program should compensate for three consequences of
service-connected injuries and diseases: 
work disability, loss of ability to engage in usual life activities
other than work, and loss of quality of life.”

The IOM report, the VDBC (and an
associated Center for Naval Analysis study) and the President’s Commission on
Care for America’s Returning Wounded Warriors (chaired by former Senator Bob
Dole and former Secretary Donna Shalala) all agreed that the current benefits
system should be reformed to include non-economic loss and quality of life as a
factor in compensation.

In fact,
other countries do just that.  Both
Australia and Canada provide a full range of benefits to disabled veterans
similar to VA benefits, including health care, vocational rehabilitation,
disability compensation and SMC-like payments. 
However, both Canada and Australia also provide a quality-of-life (QOL)
payment.

Canada, under their Pension Act,
includes a QOL component in its disability pensions.  Much like VA’s current system, the Canadian
disability compensation system first determines functional or anatomical loss.  After a rating has been assigned for a
condition under the medical impairment table, a QOL rating is determined and
the ratings added.  In order to determine
the QOL rating, the Canadian system looks at three components: the ability to
participate in activities of independent living, the ability to take part in
recreational and community activities, and the ability to initiate and take
part in individual relationships.

The Australian Department of
Veterans’ Affairs also utilizes a system that combines medical impairment and
functional loss with QOL interference. 
Unlike the Canadian system, which provides an individual QOL rating for
each condition, the Australian model assigns an overall QOL rating based on
total medical impairment.  In order to
determine the level of QOL impairment, the Australian system considers four
categories: personal relationships, mobility, recreational and community
activities and employment and domestic activities.

In closing, DAV believes that in
addition to providing compensation to service-connected disabled veterans for
their average loss of earnings capacity, VA must also include compensation for
their noneconomic loss and for loss of their quality of life.  We strongly recommend that Congress and VA
determine the most practical and equitable manner in which to provide
compensation for noneconomic loss and loss of quality of life and move
expeditiously to implement this updated disability compensation program.

Mr. Chairman, DAV looks forward to
working with you, as well as all of the members of the Subcommittee, to protect
and strengthen the benefits programs that serve our nation's veterans,
especially disabled veterans, their families and survivors.  This concludes my statement and I would be
happy to answer any questions.

Prepared Statement of Frank
Logalbo, National Service Director, Wounded Warrior Project

Chairman Runyan, Ranking Member
McNerney, and Members of the Subcommittee:

Thank you for holding this hearing
on VA’s rating schedule and for inviting Wounded Warrior Project (WWP) to
provide testimony. 

This
hearing is both timely and important given the responsibility of the Secretary
of Veterans Affairs to “adopt and apply a schedule of ratings of reductions in
earning capacity from specific injuries or combinations of injuries...based as
far as practicable, upon the average impairment of earning capacity resulting
from such injuries in civil occupations…[and] from time to readjust this
schedule of ratings in accordance with experience.”[1] 

As
you know, VA’s disability rating schedule has not been comprehensively revised
or updated since 1945.  Congress
recognized the troubling implications of that gap in creating the Veterans’
Disability Benefits Commission.[2]  Importantly, among the Commission’s
recommendations in its 2007 report were that VA “benefits and standards for determining benefits should be updated or
adapted frequently based on changes in the economic and social impact of
disability and impairment, advances in medical knowledge and technology, and
the evolving nature of warfare and military service.[3]  Building on the Commission’s findings and
recommendations, Congress wisely directed VA to establish an Advisory Committee
on Disability Compensation to advise the Secretary on the maintenance and
periodic readjustment of the schedule of rating disabilities.[4]  That Committee is playing a vital role in
monitoring, questioning, and advising VA as it is working to update the
disability rating schedule.

WWP brings a special perspective to
this subject, reflecting its founding principle of warriors helping
warriors.  We pride ourselves on
outstanding service programs that advance that ethic. Among those program
efforts, WWP staff across the country work daily to help Wounded Warriors
understand their entitlements and fully pursue VA benefits’ claims.  But our goal is broader: to ensure that this
is the most successful, well-adjusted generation of veterans in our nation’s
history.

Unique Impact of Mental Health
Disability

From that perspective, we believe
that perhaps no aspect of VA’s work on modernizing its rating schedule may be
more important than to bring the evaluation and rating of mental health
conditions into the 21st century. 
It is very clear to us at WWP that combat-related mental health
conditions are not only highly prevalent among OEF/OIF veterans and often
severely disabling, but they have profound consequences for warriors’ overall
health, well-being, and economic adjustment. 
We see this in our day-to-day work with Wounded Warriors.  Moreover, the annual surveys that WWP has
conducted in partnership with RAND have confirmed those impressions, and
provided us important data. 

WWP’s most recently completed survey
of more than 5800 servicemembers and veterans wounded after 9/11 found that one
in three of the more than 2300 respondents reported that mental health issues
made it difficult to obtain employment or hold jobs.[5]   Almost two-thirds of those surveyed reported
that emotional problems had substantially interfered with work or regular
activities during the previous four weeks.[6]  And more than 62 percent indicated they were
experiencing current depression (compared to a rate of 8.6 percent in the
general population, and an earlier RAND projection of nearly 14 percent among
OEF/OIF veterans generally).[7]  Only 8 percent of respondents did not
experience mental health concerns since deployment.[8]  Of those surveyed, post-traumatic stress
disorder was their most commonly identified health problem.[9]  Questioned about their experience in theater,
83 percent had a friend who was seriously wounded or killed; 78 percent
witnessed an accident that resulted in serious injury or death; 77 percent saw
dead or seriously injured non-combatants; and 63 percent experienced six or
more of these types of traumatic incidents.[10] 

Asked to comment on the most
challenging aspect of their transition, some two in five of those surveyed
cited mental health issues.  Their words
are telling:

“I’ve been dealing with PTSD/Depression for many years now and it just
seems to never go away.  It affects my
day to day activities.  I seem to have
lost my self purpose and interest.”

“My main problems are being emotionally numb, isolation, freezing up in
social environments, drugs and not having the desire or energy to put towards
changing my situation any more.  It has
been over 5 years, and I am still just as bad as and even worse than when I
came back.”

“My greatest challenge is the feeling of uselessness and helplessness of
coping with a mental illness.”[11]

Some acknowledged finding help from
VA therapists and clinics.  Others had
less positive experiences – commenting, for example, “the VA is overwhelmed at
this point and discouraging for young troopers seeking care…Too much medicine
gets thrown at you.  Each provider thinks
they can solve the complex issue of PTSD/Combat Stress with meds.”[12]   Overall, our Wounded Warriors’ battles with
mental health issues underscore the importance not only of addressing
substantial gaps in VA health care but significant challenges for the Veterans
Benefits Administration.

Given the strong link between veterans’
mental health and their achieving economic empowerment, it is vital that
compensation for service-incurred mental health conditions be equitable and
make up for lost earning power.   But
deep flaws in both VA evaluation procedures and its rating criteria pose real
problems for warriors bearing psychic combat wounds. 

Veterans seeking compensation for a
mental health condition typically undergo a compensation and pension (C&P)
examination, which is intended to develop documentation for
disability-evaluation purposes, to include determining the severity of the
condition.   Where the examination and other
pertinent evidence establishes a basis for a grant of service-connection for a
mental health condition, adjudicators determine the level of compensation to be
awarded by evaluating examination findings by reference to criteria for rating
mental health disorders that have been codified in federal regulation at 38 CFR
sec. 4.130. 

Flawed Mental Health Rating Criteria

To its credit, VA has acknowledged
that its criteria for rating mental health disorders for compensation purposes
need thoroughgoing revision,[13]
and officials have stated that major studies agree that mental health issues
have a greater impact on earnings than VA for which is currently compensating.[14]  

Major changes are needed.  An expert panel convened by the Institute of
Medicine (focused specifically on PTSD) characterized VA’s schedule of ratings
for mental disorders (which is a single set of criteria for rating all mental
disorders except eating disorders) as a crude, overly general instrument for
assessing PTSD disability.[15]  The IOM panel cited two major limitations in
the rating criteria: first that it lumps everything into a single scheme,
allowing for very little differentiation across specific conditions; second
that occupational and social impairment is the driving factor for each level of
disability, omitting consideration of secondary factors (such as frequency of
symptoms or treatment intensity) used in rating physical disorders.[16]

The criteria’s reliance on
occupational and social impairment departs in a very fundamental way from the
core principle that disability ratings are to be based on average
impairments of earning capacity.[17]  No other disability is rated by reference to
“occupational impairment,” and in any other instance under the rating criteria
the actual impact of a veteran’s occupational functioning would be
irrelevant.  The emphasis on occupational
impairment throughout the criteria for rating mental disorders places the focus
inappropriately on the individual veteran’s capacity for employment, rather
than on average impairment of earning capacity. We concur with the IOM panel’s
view that eliminating occupational impairment as the defining factor in rating
mental health conditions would result in greater parity between the rating of
mental and physical disorders.[18]  It could also remove the disincentive to
seeking gainful employment.

The mental health rating criteria
are also unreasonably high.  By way of
example, the criteria for a 100% schedular rating require:

“total occupational and social impairment, due to
such symptoms as: gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent inability to perform
activities of daily living (including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of close relatives, own
occupation, or own name.”  

With such elements as “persistent
danger of hurting self or others,” the criteria more closely resemble the
degree of impairment associated with psychiatric hospitalization or other
institutional care than simply severe functional impairment.  In other
respects, the criteria describe such profound impairment as to render the
individual unable to perform self-care.  
As such, they closely reflect the very high degree of impairment
associated with eligibility for special monthly compensation based on a need
for aid and attendance of another person.[19]  Surely an individual who manifests “gross
impairment in thought processes or communication,” “persistent delusions or
hallucinations,” “grossly inappropriate behavior,” “persistent danger of
hurting self or others,” or “disorientation to time or place,” is in need of
ongoing protective care.    To set so
high a bar for a 100% rating for a mental health disorder is not simply to blur
the line between the 100% rating and the criteria for aid and attendance, but
virtually to erase it.[20]  The criteria for a 100 percent rating (and
lesser percentage ratings) must be relaxed. 
But regulatory changes should also be made to ensure that veterans whose
mental health status is as severely impaired as now reflected in the criteria
for a 100% rating can receive special monthly compensation.

If mental disorders are to be rated
under a single set of criteria, VA must enable adjudicators to take account of
the many ways in which mental illness may manifest itself.  For example, while the criteria for a 100%
rating are intended to be applied to rate a very wide range of illnesses, they
focus narrowly on profound schizophrenia.[21]  As such, they provide virtually no basis for
assigning a 100% rating for such widely prevalent and often profoundly
disabling conditions as major depression, PTSD, and anxiety.  

Finally, VA must ensure that
compensation for mental health conditions replaces average loss in earnings
capacity.  Today it does not!   As carefully documented in a detailed 2007
report to the Veterans Disability Benefits Commission (“the CNA Report”), it is
important in assessing whether compensation replaces average lost earnings to
distinguish between physical and mental disabilities.  The CNA Report shows that average VA
compensation for physical disabilities approximated lost earnings based on
nonservice-connected peer group earnings. In contrast, however, for veterans
whose primary disability was a mental condition VA compensation fell below lost
earnings, and for those who were severely disabled at a young age VA
compensation fell substantially below lost earnings.[22]  Similarly, CNA found substantial employment
rate differentials between veterans with a primary physical disability and
those with a mental one, with the average employment rate of service-disabled
veterans with a mental health condition markedly lower than for veterans with a
physical condition.[23]

In our view, VA must completely
rewrite its rating criteria for mental disorders with the goal of fairness,
reliability, and accuracy.  In doing so,
it must abandon principal reliance on occupational impairment, which has the
effect of discouraging veterans from pursuing gainful employment and from
achieving overall wellness.  Criteria
that evaluate disability on the basis of the applicable domain or domains that
most affect an individual (as reflected in the rating criteria for traumatic
brain injury, for example) offer a possible model for achieving greater
reliability.  Any such criteria must also
reflect how disabling mental disorders actually are.

Risk of Error in C&P
Examinations

But even the most thoroughgoing
revision of VA’s criteria for rating PTSD, or mental disorders generally, will
not by itself result in fair, accurate compensation awards.  Currently, the claims-adjudication process
relies heavily on an examination conducted by a psychologist or psychiatrist
who typically has never met (let alone treated) the veteran before.  In addition, VA C&P examinations of
mental health conditions have long been criticized as superficial, and
routinely fall far short of a VA best-practice manual, which suggests such an
examination can take three or more hours to complete.[24]  Years-old problems of too-hurried VA
compensation examinations have not abated. 

In response to a survey WWP
conducted last year, more than one in five Wounded Warriors reported that VA
C&P examination associated with the adjudication of their original PTSD
claim was 30 minutes or less in duration. 
A recent VHA-conducted survey of its mental health clinicians found that
over 26 percent of responding mental health providers said the need to perform
compensation and pension examinations pulled them away from patient care.[25]  Hurried, or less than comprehensive, C&P
examinations heighten the risk of adverse outcomes, additional appeals, and
long delays in veterans receiving benefits. 
It bears noting that meaningful evaluation of a mental health condition
requires a painstaking inquiry that often depends on developing a trusted
relationship with a client, on probing inquiry, and on sustained dialogue.[26] 
A brief, one-time office visit with a stranger is hardly conducive to such an
encounter, and – disconnected from the claimant’s community, home, and
workplace or school, as applicable -- provides only the most distant impression
of the extent of disability.

VA mental-health compensation
determinations should be based on the best evidence of a veteran’s functional
impairment associated with that service-connected condition.   As such, we believe it is important to
recognize the inherent limitations of C&P mental health examinations.  An adjudication system aimed at accurately
assessing functional impairment of a disabling mental health condition should
seek a more reliable basis for assessment. 

We urge this Committee to press VA
to revise current policy and give much greater weight to the findings of mental
health professionals who are treating the veteran, and are necessarily far more
knowledgeable about his or her circumstances. 
To the extent that VA must still rely on C&P exams, strict measures
should be instituted to ensure much more thorough, reliable exams.

Individual Unemployability

We believe there is yet another area in which VA
compensation policy should be modernized. 
In this instance one of VA’s compensation regulations has the effect of
impeding many wounded veterans – particularly those with service-incurred
mental health conditions -- from overcoming disability and regaining productive
life.  By way of background, VA
regulations have long provided a mechanism to address the situation where the
rating schedule would assign a less than a 100% rating, but the veteran is
nevertheless unable to work because of that service-connected condition.   In instances where a veteran has a
disability rating of 60 percent of or more, or at least one disability ratable
at 40 percent or more and sufficient additional disability to bring the
combined rating to 70 percent or more, VA may grant a 100% disability rating
when it determines the veteran is “unable to follow a substantially gainful
occupation as a result of service connected disabilities.”  This Individual Unemployability (IU) rating
results in a very substantial increase in the veteran’s compensation. 

While veterans receiving IU are compensated at the same
monetary level as those who receive a 100% rating, the implications for
employment drastically differ. A veteran who receives a schedular rating of
100% for a disability other than a mental health condition is not precluded
from gainful employment.  But for
veterans receiving IU, engaging in a substantially gainful occupation for a
period of 12 consecutive months can result in a loss of IU benefits and a
subsequent reduction in compensation benefits.[27]
For some veterans, this can spell a sudden loss of as much as $1700 in monthly
income. Both the Institute of Medicine (IOM) and Veterans’ Disability Benefits
Commission have recognized this decrease as a “cash-cliff” that may deter some
veterans from attempting to re-enter the workforce.[28]

We concur with the recommendations
of the IOM and Veterans’ Disability Benefits Commission that the IU benefit
should be restructured to encourage veterans to reenter the workforce.  The experience of the Social Security
Administration (SSA) – which has had success piloting a gradual, step-down
approach to reducing benefits for beneficiaries who return to employment –
offers a helpful model.  SSA’s experience
has shown that, for those reentering the workplace, a gradual rather than
sudden reduction in disability benefits not only allowed participants to
minimize the financial risk of returning to work, but over time participants
actually increased their earning levels above what they would have received in
disability payments.[29]
 Inherent in this approach is the underlying assumption that individuals
with disabilities can and will re-enter the workforce if benefits are
structured to encourage that opportunity. 

Recognizing that employment often
acts as a powerful tool in recovery and is an important aspect of community
reintegration for this young generation of warriors, we believe VA should
revise the IU benefit to foster those goals. 

Compensation for service-connected
disability is not only an earned benefit, it is critically important to most
veterans’ reintegration and economic empowerment, and particularly so for those
struggling with the psychic wounds of war. 
VA has much work to do to make compensation for combat-related mental
health conditions as fair as it should be. 
We look forward to working with the Department and this Subcommittee to
realize that goal.

 

[1] 38 U.S.C. sec. 1155.

[2] National Defense Authorization Act of 2004, Public
Law 108-136.

[3] Veterans’ Disability Benefits Commission Report,
Honoring the Call to Duty: Veterans’ Disability Benefits in the 21st
Century, p. 4 (2007).

[4] Public Law 110-389 (October 10, 2008).

[5] WWP Survey, p. 67. 
In contrast to the one in three so responding, only about one in five
identified “not physically capable” and “not qualified/lack of education” as
creating greatest difficulty. 

[6] Id., p. 34.

[7] Id., p. 41.

[8] Id., p. 53.

[9] Id., p. ii.

[10] Id., p. 16.

[11] Id., pp. 83-4.

[12] Id., p. 90.  Recent studies document the widespread
off-label VA use of antipsychotic drugs to treat symptoms of PTSD, despite the
recent finding that one such medication is no more effective than a placebo in
reducing PTSD symptoms.  Leslie, D., Mohamed, S., &
Rosenheck, R., “Off-Label Use of Antipsychotic
Medications in the Department of Veterans Affairs Health Care System” Psychiatric
Services, 60
(9), (2009) 1175-1181; Krystal, John H.; et al. (2011) “Adjunctive Risperidone
Treatment for Antidepressant-Resistant Symptoms of Chronic Military
Service–Related PTSD: A
Randomized Trial,” JAMA ; 306(5),
(August 3, 2011) 493-502.

[13] The Veterans Benefits Administration and Veterans
Health Administration sponsored a “Mental Health Forum” on January 28-29, 2010
to begin a dialogue and process aimed at rulemaking to revise the rating
criteria for mental disorders.

[14]Id.

[15] Committee on Veterans’ Compensation for
Posttraumatic Stress Disorder, “PTSD Compensation and Military Service,”
National Academies Press (2007), p. 6.

[16] Id., at 156.

[17] 38 U.S.C. sec. 1155.

[18] Committee on Veterans’ Compensation for
Posttraumatic Stress Disorder, “PTSD Compensation and Military Service,” p.
157.

[19] “…need for regular aid and attendance [due
to]…incapacity, physical or mental, which requires care or assistance on a
regular basis to protect the claimant from the hazards or dangers incident to
his or her daily environment.”  38 C.F.R.
sec. 3.352(a).

[20] Given that the rating schedule sets so unreasonably
high a level of impairment for a 100% rating, it is not surprising that the
70%, 50% and other rating levels also set the bar at unreasonably high
points.  To illustrate, an individual who experiences “near continuous
panic or depression”, “inability to establish or maintain effective
relationships,” “difficulty in adapting to stressful circumstances,” and
“neglect of personal appearance and hygiene,” – symptoms now entitling one to a
70% rating – cannot realistically be considered able to hold a job.  It is
hardly surprising, therefore, that a high percentage of veterans with a
schedular 70% rating for a mental disorder receive a total disability rating
based on individual unemployability.  Likewise, the criteria for a 50%
rating – impaired memory, judgment and thinking; difficulty in understanding
complex demands, mood disturbance, weekly panic attacks, and difficulty in
establishing and maintaining effective relationships – seem hardly consistent
with the notion that such individuals, on average, have lost only half of their
earning capacity.  In short, these are not equitable criteria; they
dramatically under-rate the extent of disability and earning capacity.

[22]  CNA Corp.,
“Final Report for the Veterans’ Disability Benefits Commission: Compensation,
Survey Results, and Selected Topics (August 2007), 3-4.  Accessed at
http://www.cna.org/documents/D0016570.A2.pdf.

[23]  Id., 48.

[24] An Institute of Medicine (IOM) study on PTSD
compensation reflected concern that VA mental health professionals often fail
to adhere to recommended examination protocols. As an IOM panel member
described it at a congressional hearing, “Testimony presented to our committee
indicated that clinicians often feel pressured to severely constrain the time
that they devote to conducting a PTSD Compensation and Pension (“C&P”)
examination—sometimes as little as 20 minutes—even though the protocol
suggested in a best practice manual developed by the VA National Center for
PTSD can take three hours or more to properly complete.”  (Dean G.
Kilpatrick, Ph.D., Committee on Veterans’ Compensation for Posttraumatic
Stress Disorder, Institute of Medicine,  Testimony before House Veterans’ Affairs
Committee Hearing on “The U.S. Department of Veterans Affairs Schedule for
Rating Disabilities” Feb. 6, 2008, accessed at: http://veterans.house.gov/hearings/Testimony.aspx?TID=638&Newsid=2075&Name=%20Dean%20G.%20Kilpatrick,%20Ph.D. 

[25] Chairman Patty Murray, Letter to Robert A. Petzel,
Under Secretary for Health, Department of Veterans Affairs (October 3, 2011).

[26]See Gold, et al. “AAPL Practice Guidelines for
the Forensic Evaluation of Psychiatric Disability,” Journal of the American Academy of Psychiatry and the Law, (2008) 36:
S3-S49.

[27] 38 C.F.R. sec. 3.343(c).

[28] Institute of Medicine, A 21st Century System for Evaluating Veterans for Disability
Benefits.
Committee on Medical Evaluation of Veterans for Disability
Compensation, National Academies Press, 2007, 250, and Veterans’ Disability
Benefits Commission, Honoring the Call to
Duty: Veterans Disability Benefits in the 21st Century
, October
2007, 243.

[29] Social Security Administration, “Benefit Offset
Pilot Demonstration – Connecticut Final Report.” September 2009, accessed at:
http://www.ssa.gov/disabilityresearch/offsetpilot.htm

Prepared
Statement of Theodore
Jarvi, Past President, National Organization of Veterans' Advocates

The National Organization of Veterans'
Advocates (NOVA) thanks Chairman Jon Runyan and Ranking Member Jerry McNerney
for the opportunity to testify about the functional utility of the Disability
Rating Schedule used by the Department of Veterans Affairs (VA).

NOVA is a not‑for‑profit 501(c)(6) educational
membership organization incorporated in the District of Columbia in 1993.  NOVA represents more than 500 attorneys and
agents assisting tens of thousands of our nation's military veterans, their
widows, and their families obtain VA benefits. 
Our primary purpose is providing quality training to attorneys and non‑attorney
practitioners who represent veterans, surviving spouses, and dependents before
VA, the U.S. Court of Appeals for Veterans Claims (Veterans Court), and the
U.S. Court of Appeals for the Federal Circuit (Federal Circuit).

NOVA operates a full-time office in Washington, DC.  Accompanying me is Paul Sullivan, our new
NOVA Executive Director, who will assist this Subcommittee and staff with any
follow‑up questions regarding VA's disability claim adjudication process
with the over-arching goal of assisting VA with providing timely and accurate
disability compensation claim decisions.

One of NOVA’s regular functions is monitoring and commenting
on VA rule making.  In this regard, NOVA
submits comments on changes in the VA Schedule of Rating Disabilities (VASRD).  This is an area of close scrutiny.  NOVA also files challenges to VA rule making
at the Federal Circuit when we believe VA rule changes may harm veterans or
veterans’ access to legal representation. 
Most recently, NOVA is challenging VA’s unilateral and unannounced
determination that the Board of Veterans Appeals (BVA) would no longer be
subject to a VA regulation it had followed for years. 

NOVA files amicus briefs on behalf of claimants before the
CAVC, the Federal Circuit and the Supreme Court of the United States.  The CAVC recognized NOVA's work on behalf of
veterans when the CAVC awarded the Hart T. Mankin Distinguished Service Award
to NOVA in 2000.  The positions stated in
this testimony are approved by NOVA's Board of Directors and represent the
shared experiences of NOVA's members as well as my own twenty year experience
representing our veterans and their families before VA, the Veterans Court, and
Federal Circuit.

NOVA’s goals today are to work with Congress and VA to implement
the following:

·       
Establish a VASRD based on impairment of earning
capacity; focusing on the Congressional requirement that VA compensate veterans
for reductions in such capacity from service connected injuries, rather
than totally on medically-based criteria. 

·       
Provide VA guidance concerning how vocational
experts are to measure impairment of earning capacity.

·       
Establish a uniform system for evaluating
medical disabilities using the 2007 recommendations of the Veterans' Disability
Benefits Commission (VDBC), which featured disability standards used by VA’s
Veterans Health Administration (VHA), such as the International Classification
of Diseases (ICD) and American Medical Association (AMA) guides, while
retaining some of the unique conditions relevant for disabilities incurred
during or aggravated by military service.

·       
Require VA to publish proposed VASRD revisions
at the earliest possible date so an open dialogue on the issue can commence
among interested stakeholders, especially NOVA. 

PROBLEMS WITH THE VA DISABILITY RATING SCHEDULE ARE WELL
KNOWN

VA regulations in the Code of Federal Regulations are
divided into 75 different parts.  Only
one of those parts, Part IV, deals with the VASRD.  There are 88 pages of narrative descriptions
which attempt to cover nearly all of the many medical conditions that affect
the human body and mind.  VA’s attempt
falls short.  For instance, the VASRD is
not consistent with diagnostic classifications used by all other health‑care
providers, including VHA.

The VASRD is a unique set of disability rating criteria
first implemented in 1933.  The list of
qualifying disabilities was greatly expanded in 1945.  There were changes again in 1988 and 1996.
The existing VASRD is not totally static, but the construct has been
fundamentally the same for nearly 80 years. 
Since 2001 VA pursued an extensive regulation rewrite program[1]
in an effort to correct shortfalls in its regulations.  As recently as last year, VA staff concluded
the VASRD is ambiguous, poorly organized, stated in outdated or overly
technical terms, and uses obsolete language.[2]

What happens when the VASRD fails to accurately identify a
veteran’s condition and/or disability? 
In those situations, the individual VA rating specialists compare a
veteran’s medical records to all the descriptions in the VASRD, and find one
that comes closest (is analogous) to the veteran’s condition.  Predictably, this results in great variances
in the official condition listed in VA records as well as the veteran’s
disability percentage.  Common conditions
such as Gastroesophageal Reflux Disease (GERD) and
Irritable Bowel Syndrome (IBS) do not appear in the VASRD, so VA rating
specialists must find something analogous to the veteran’s symptoms.  In another example of the incomplete VASRD,
VA rating specialists have to know that veterans presenting with an unstable
shoulder or elbow should be evaluated under one of the codes for “flail joint”
because it is an obsolete term unlikely to appear in the veteran’s medical
treatment records.

Selecting analogous codes is a difficult task for VA rating
specialists who do not have medical training. 
VASRD remains incomplete and flawed as proven by the wide variation in
disability payments found in VA ratings in different states and regions for
veterans with similar ailments.  Errors
in VA adjudications arise not only from the employment of new and inexperienced
claims adjudicators, but also from the difficulty in applying the VASRD.

Dispositions of veterans’ appeals by the Veterans’ Court
provide an indication of the scope of VA’s significant problem harming our
veterans.  In 2010 the Veterans’ Court
disposed of 4,959 VA appeals.  Of those,
only 741, or 15 percent, of BVA appeal decisions were affirmed.  Only 854, or 17 percent, of BVA decisions
were dismissed for technical reasons. 
The Veterans Court found an astounding 3,062 VA decisions to be in
error, in whole or in part, a staggering 62 percent.  Not all of these VA errors were due to
problems with the VASRD.  However, many
VA errors were traced back to VA’s inadequate rating schedule.  Because only about 10% of all BVA decisions
are appealed, the likelihood exists that the problems are much wider spread
than this measure suggests. 

HOW ARE VETERANS AFFECTED?

If it is difficult for VA rating officials and VA appeals
experts to apply the VASRD, then NOVA asks Congress to consider the serious
difficulties faced by unrepresented veterans with complex disability
compensation benefits claims.  Veterans
are still barred by law from obtaining legal assistance until they have been
denied by VA for at least one condition at the Regional Office level.  Unrepresented veterans must contend with
finding, reading, and understanding VA’s complex regulations on how to pursue
their claims.  Then veterans must somehow
find and decode the VASRD as it applies to their specific disability claim
decision.  Because VA’s rating schedule
is so complex, our veterans might as well be handed the keys to the Starship
Enterprise and told to explore the universe.

If a veteran is dissatisfied with a VA rating and seeks a
private medical evaluation of his or her condition, the veteran’s physician
must be literally educated anew on the VASRD’s obsolete and incomplete
requirements.  Private physicians rarely
have time for such complicated tasks, even if they are willing to address the
questions raised by faulty VA adjudication.

When the veteran’s claim is adjudicated, VA’s rating
decision occasionally contains the VASRD code number which VA applies to the
disability, but no more.  The veteran is
not provided with a copy of the VA examination used to rate the claim.  The veteran is not alerted to the possibility
that other VASRD codes may be equally applicable, or to the fact the rating was
arrived at through the process of an analogous rating, or the range of severity
of the condition within the VASRD code used.

Lack of information about how the VASRD codes are used
significantly impacts the veteran’s disability rating, often with a low rating
as well as isolating the veteran from meaningful participation in adjudication
of the claim.  If the veteran later
obtains legal representation, the representative starts out with a messy
denial, or a minimal grant of benefits, flowing from an adjudication in which
the veteran submitted little or no evidence because he could not understand
VA’s complex and adversarial VASRD-based system. 

ARE CURRENT EFFORTS ENOUGH?

NOVA remains concerned VA’s Regulation Rewrite Project is
unfinished.  NOVA remains pessimistic
about the final product that may eventually emerge from VA’s Regulation Rewrite
Project.  Our concern is well founded,
based on prior VASRD revisions. 

For instance, a final rule amending 38 CFR 4.75 through
4.84a was published in the Federal Register on November 10, 2008, at 73 FR
66543. This rule revised portions of the rating schedule addressing eye
disabilities.  Blind veterans are some of
our most disabled, but VA’s cumbersome revisions rendered obtaining accurate
and timely decisions very difficult. 
This is doubly true because VA frequently elects to use non-medical
doctor examiners to evaluate medically complex conditions.  For example, VA often uses non-medical doctor
optometrists to opine on complex medical questions such as the etiology of
retinitis pigmentosa, or Leibers Optic Atrophy.  

Another instance in which VA amendments of the VASRD worked
to veterans’ disadvantage is in the evaluation of spinal disabilities.  In August 2003, the VA amended the VASRD by
revising the portion dealing with spine disabilities.  No one disputes the spine is a central
element of the body, carrying an elaborate nerve network which operates the
arms, neck, and legs.  Back conditions
are one of the most common kinds of all veterans’ claims, and these conditions
are often the most painfully disabling.

Despite the centrality of the spine in the body system, and the
frequency with which back claims occur, the highest rating available in the
VA’s 2003 amendments for either the cervical or lumbar spine was 40%, absent ankylosis, a rare
condition.[3]  A higher rating was available, but only if
the veteran is prescribed a certain amount of “bed rest” for his back
condition.[4]   A 40% rating means a veteran with a
profoundly painful back condition cannot even qualify as being unemployable
under 38 CFR §4.16[5]
unless the veteran finds a doctor willing to prescribe bed rest.  The lack of a “bed rest” prescription often
means compensation rated at 40%, or $541 per month, compared with a more
accurate rating of 100%, or $2,673 per month. 
This represents a potential loss of more than $25,000 in disability
benefits per year for the remainder of the veteran’s life. 

The hitch here is doctors often do not and will not
prescribe “bed rest” for a bad back.  It
is contraindicated and possibly medical malpractice to do so.
[6] 

Another area of concern relates to dental disorders.  The VASRD (VA Diagnostic Code 9913) provides
for compensation for tooth loss only when there is bone loss due to in‑service
trauma or disease.  While service
connection for treatment purposes only may be granted for loss of teeth in
service where there is no bone loss, such tooth loss without bone loss can also
be very painful and disabling.  We must
ask why there is no provision for compensation in such circumstances.

There are many other examples.  The VASRD is unresponsive to new diseases,
developments, or advances in medical knowledge. Currently, when a VA rating specialist
adjudicates a claim for GERD or IBS, the VA employee will find no Disability
Code for those common conditions. 
Similarly, other more exotic conditions are absent. 

What is the rating specialist to do in such
circumstances?  VA must go to 38 C.F.R. §
4.20, which states, “When an unlisted condition is encountered it will be
permissible to rate under a closely related disease or injury in which not only
the functions affected, but the anatomical localization and symptomatology are
closely analogous.”  VA rating
specialists rarely ask medical experts what is most “analogous” to the
veteran’s condition.  Instead, VA staff
engage in a hit-or-miss estimate, often to the veteran’s detriment. 

VA’s Diagnostic Codes (DC) should be regularly updated to provide
new DCs and evaluative criteria for new conditions, and VA rating specialists
should be directed to seek medical expertise before selecting analogous
DCs. 

WHAT SHOULD BE DONE?

To determine what should be done to provide the greatest
benefits for our veterans, we can look to the past for guidance to avoid
repeating preventable and harmful mistakes.

In May 2005, the Veterans' Disability Benefits Commission
(DRBC), established by Congress to review benefits going to disabled veterans
and the survivors of deceased veterans, held meetings in Washington, D.C.  Congress instructed it to examine three
specific issues:

·       
the "appropriateness" of compensation
and other benefits for disabled veterans and for the survivors of veterans who
died from causes related to military service;

·       
"the appropriateness of the level of such
benefits"; and

·       
"the appropriate standard . . . for
determining whether a disability or death of a veteran should be
compensated."

The 13‑member DRBC, chaired by retired Army Lt. Gen.
James Terry Scott, then asked a distinguished panel of experts[7]
(the “Committee”) about (1) the advantages and disadvantages of adopting other
universal medical diagnostic codes rather than the unique VA system, and (2)
the advantages and disadvantages of using established guides for evaluation of
permanent impairment (Guides) instead of the VASRD. 

The resulting report of the Committee was far more
comprehensive than any study or collection of anecdotal complaints compiled on
the subject before or since.  The
Committee considered alternative diagnostic classification codes such as the
International Classification of Diseases (ICD) maintained by the World Health
Organization, the Social Security Administration system for its disability
benefits program based loosely on the ICD‑9‑CM, and the American
Medical Association Guides to the Evaluation of Permanent Impairment.

The Committee compared the relative strengths and weaknesses
of each system.  They noted how VASRD
contains numerous instances of outdated terms and names, especially in the
orthopedic section of the musculoskeletal and neurological systems, which have
not changed since 1945.   For instance it
noted that VA raters must know that Parkinson’s disease should be rated as paralysis
agitans
.

The Committee commented that traumatic brain injury (TBI) is
the signature injury of the war in Iraq, but the VASRD’s diagnostic code for
brain disease due to trauma (DC 8045) had not been revised since 1961.  They found that VA raters are directed to
evaluate TBI according to its numerous neurological consequences, “such as
hemiplegia, epileptiform seizures, facial nerve paralysis, etc.,” and there is
no other guidance in the VASRD for the rater to consider.  This is a heavy burden to place on VA raters,
and an impossible task for veterans who are trying to advocate on their
own. 

The Committee recognized switching to an entirely new system
of disability codes would have significant consequences, but it pointed out
that if VA must update its own VASRD, the same difficulties will arise.  They found the cost of switching to a
different set of codes would also be offset by the benefits veterans would gain
by  having a system aligned with modern
medical practice and record keeping.

Based on its analysis, the Committee made two
recommendations which sought to incorporate favorable features of both the ICD
and the AMA Guides.  They were:

Recommendation 8‑1. VA should adopt a new
classification system using the International Classification of Diseases (ICD)
and the Diagnostic and Statistical Manual of Mental Disorders (DSM) codes. This
system should apply to all applications claims?, (apply to all applications?)
including those that are denied. During the transition to ICD and DSM codes, VA
can continue to use its own diagnostic codes, and subsequently track and
analyze them comparatively for trends affecting veterans and for program
planning purposes. Knowledge of an applicant’s ICD or DSM codes should help
raters, especially with the task of properly categorizing conditions.

Recommendation 8‑2. Considering some of the
unique conditions relevant for disability following military activities
, it
would be preferable for VA to update and improve the Rating Schedule on a regular
basis rather than adopt an impairment schedule developed for other purposes.

NOVA’s RECOMMENDATIONS

1.      Establish
a VASRD based on impairment to earning capacity.

There are several steps which can be taken and should be
required by Congress for VA to modernize its current rating schedule. NOVA
believes vocational experts are better suited than doctors for meeting the
intent of Congress in 38 U.S.C. § 1155 (the Congressional requirement that VA
compensate veterans for reductions in earning capacity from service
connected injuries)

Congress must decide whether the measurement or assessment
of the degree of impairment of a veteran’s earning capacity is a medical
question or a vocational one. VA’s VASRD treats the question exclusively as a
medical issue.  For instance,
endocrinologists, cardiologists, or oncologists are routinely asked to
determine if a veteran’s medical condition renders him or her
unemployable.  This is totally outside
the training and expertise of such specialists. 
In order to bring the VASRD into accord with the intent of the system,
Congress should require VA to modify this medical model in favor of a
medical/vocational model to assess a veteran’s disability.

After doctors have identified and assessed a veteran’s
service connected medical condition(s), VA should use that information to
evaluate the impact on the veteran’s earning capacity arising from the
disability.   This would be based on
expert testimony of vocational experts who are in a better position to provide
consistent impairment assessment of earning capacity.  The use of medical personnel to assess
earning capacity impairment defeats the goals expressed in USC § 1155 and CFR §
4.2.

Congress should provide VA guidance concerning how
vocational experts are to measure impairment of earning capacity to prepare VA
for the type of vocational assessment described above.  Using this baseline, VA should ask vocational
experts to compare the degree of a veteran’s service connected disability, using
the 10% increments, as in 38 USC §1114(a) through (j) to assess percentage
reduction of the veteran’s earning capacity. 

The provisions of § 1114 (a) through (j) provide a
progressive set of standards which can be used to carry out VA’s goal of
compensating veterans for lost earnings.[8] 

2.      Establish
a uniform system of evaluating medical disabilities using the informed
recommendations of the Veterans' Disability Benefits Commission

Despite NOVA’s reservations about VA regulation making in
general, we know the VASRD needs serious attention and revision.  Additionally, VA’s use of the VASRD must
become more transparent to veterans.

Adoption of disability standards that are recognized outside
VA, such as the ICD and AMA guides, ensures changes will not be made solely to
save VA money at the expense of our wounded, injured, ill, and disabled
veterans. 

NOVA urges Congress to revisit the work of the Committee and
the Veterans' Disability Benefits Commission which Congress commissioned. 

VA rule making is inherently slow and, in almost every
aspect of veterans’ claims adjudication, VA makes delay its hallmark.  NOVA fervently requests VA be pushed to
publish its proposed VASRD revisions at the earliest possible date so an open
dialogue on the issue can commence. 

In conclusion, NOVA thanks the Subcommittee for its interest
in VA’s rating schedule, an issue we follow with significant interest.  NOVA’s leaders and staff are prepared to
provide additional examples and assistance to Congress and VA in our continuing
cooperative effort to improve the delivery of accurate and timely VA disability
compensation claim benefits to our veterans.


[1]
http://www.va.gov/ORPM/Summary_of_Regulation_Rewrite_Project.asp

[2]VA Regulation Rewrite Project: Update January 2011,
McKevitt, Pine, Russo.

[3]Ankylosis means fusion, which is 0 degrees of Range of
Motion.

[4]38 CFR § 4.71a, DC 5243, Note 1 [For purposes of
evaluations under diagnostic code 5243, an incapacitating episode is a period
of acute signs and symptoms due to intervertebral disc syndrome that requires
bed rest prescribed by a physician and treatment by a physician.]

[5] Sixty percent is the schedular requirement for
unemployability consideration.

[6] “Bed Rest for Acute Low-Back Pain and Sciatica
(Review)” Hagen, Hilde, Jamtvedt, Winnem; The Cochrane Library, 2009, Issue 4;
“Treatment of Acute Low Back Pain - Literature Review Knight, Deyo, Staiger,
Wipf; Uptodate.com, March 10, 2011. 
UpToDate is a clinical decision support system that helps clinicians
provide patient care using current evidence to answer clinical questions
quickly at point of care.

[7]The Committee on Medical Evaluation of Veterans for
Disability Compensation.  See Chap 8
[Other Diagnostic Classification Systems and Rating Schedules], A 21st
Century System for Evaluating Veterans for Disability Benefits
.  National Academies Press, 2007.

[8](a) while a disability is rated 10 percent monthly
compensation shall be $127;

(b) while a disability is
rated 20 percent monthly compensation shall be $251;

(c) while a disability is
rated 30 percent monthly compensation shall be $389;

(d) while a disability is
rated 40 percent monthly compensation shall be $560;

(e) while a disability is
rated 50 percent monthly compensation shall be $797;

(f) while a disability is
rated 60 percent monthly compensation shall be $1009

(g) while a disability is
rated 70 percent monthly compensation shall be $1,272;

(h) while a disability is
rated 80 percent monthly compensation shall be $1,478

(I) while a disability is
rated 90 percent monthly compensation shall be $1,661;

(j)
while a disability is rated as total monthly compensation shall be $2,769.

Prepared Statement of Thomas J. Murphy, Director,
Compensation Service, Veterans Benefits Administration (VBA)

Mr. Chairman and
members of the Subcommittee:

Thank
you for the opportunity to testify on the state of the VA disability ratings
schedule.  The Department of Veterans
Affairs (VA) Schedule for Rating Disabilities (rating schedule) is the engine
through which VA is able to provide Veterans with compensation
for diseases and injuries they incur while serving our nation.  It is this rating schedule that guides the
disability rating personnel of the Veterans Benefits Administration (VBA) and
Department of Defense (DoD) in making the correct determination of the
compensation benefit level applicable for a Veteran’s service-connected
condition(s).  The manner of rating
Veterans for their service-connected conditions has evolved since the 1917 War
Risk Insurance Act created the first rating schedule that was used to calculate
replacement of lost earnings for our Veterans. 
This evolution continues as we update the rating schedule to include the
signature injuries of our current wars. 

Today,
I will describe the history of the rating schedule and the statutory basis for
our current schedule, 38 United States Code (U.S.C.) § 1155, and I will explain
how VBA is actively and comprehensively ensuring that this legislative mandate
is implemented effectively.  To focus on
the Subcommittee’s concerns regarding the contemporary state of disability
ratings, I will also describe VBA’s current plan to ensure the rating schedule
is as accurate and modernized as possible, to meet the needs of Veterans in the
21st Century. 

I.  Rating Schedule’s Authority and Brief
History

Section
1155 of Title 38, U.S.C., and the statute’s implementing regulation, at 38 Code
of Federal Regulations (C.F.R.) § 4.1, require VA to assign Veterans who are
service-connected with percentage ratings that represent as far as practicable
the average impairment in earning capacity resulting from diseases and injuries
that were incurred or aggravated during active military service.  This statutory and regulatory mandate is the
current manifestation of a history of the rating schedule that has included
various measures of disability.  Section
1155 also provides that “[t]he schedule shall be constructed so as to provide
ten grades of disability, and no more, upon which payments of compensation
shall be based,” with increments of 10 to the total 100 percent.  Congress sets the associated dollar amount
rates of compensation under 38 U.S.C. § 1114.

With
the outset of the first rating schedule in 1917, the law focused on average
loss of earning capacity as the measure for replacement of lost income for
Veterans.  In 1925, lawmakers switched to
an individual occupation-based evaluation of compensation before returning to
the original concept of average impairments of earning capacity without regard
to occupation under a new schedule in 1933. 
The schedule would undergo future revisions, notably in 1945, the year
in which a system was developed that forms the baseline from which VA has
developed the current rating schedule. 
Particularly, the 1945 rating schedule introduced three basic concepts
that are still evident in today’s scheme for rating Veterans: 1) compensation
that is based, to the extent possible, on average lost earnings capacity; 2)
use of disability evaluations, and associated compensation ranges, from 10
percent through 100 percent disability, including a potential
non-compensable zero percent evaluation for each disability; and 3)
disabilities organized into 14 discrete body systems – for instance,
musculoskeletal, digestive, organs of special sense, or mental disorders – with
unique descriptive diagnostic codes for diseases and injuries within each
system.  The current rating schedule
differs from the 1945 rating schedule due to periodic updates to individual
body systems throughout the years and now contains diagnostic codes for 15 body
systems.  Revisions in 1961 updated the mental disorder diagnostic codes,
which had been largely unchanged since 1933.

Starting
in 1989, VA has incrementally revised the rating schedule many times with
consideration given to the views of Veterans Health Administration (VHA)
clinicians, VBA disability rating personnel, groups of non-VA medical
specialists, and comments received from Veterans Service Organizations (VSOs),
Veterans, and other public and private interested stakeholders in response to
various Notices of Proposed Rule Making.

II.  Increasing Focus on Rating Veterans’
Disabilities: Recent Studies and a New VA Rating Schedule Initiative

With
increased interest turning to Veterans’ benefits and care, deservedly so due to
the return of Servicemembers from recent conflicts, various studies and
Commissions since 2007 have made many recommendations relating to VA’s
disability compensation program.  Some
studies and commission reports have proposed wholly new concepts for rating
disabilities.  Some of these
recommendations for improvement have been outside the bounds of VA’s current
statutory authority based on average impairments of earning capacity; however,
some recommendations have been within the scope of VA’s  mandate from Congress. 

For
example, the National Academy of Sciences’ Institute of Medicine (IOM), in its
2007 report to the Veterans Disability Benefits Commission (VDBC), A 21st
Century System for Evaluating Veterans for Disability Benefits
,
recommended, in part, that VA immediately update the current rating schedule,
beginning with body systems that have been in place for a long time without a
comprehensive update.  The IOM report
also recommended that VA devise a system for keeping the schedule up-to-date,
and that VA regularly conduct research on the ability of the rating schedule to
predict actual loss in earnings.  The
report additionally recommended that VA regularly use the results from research
on the ability of the rating schedule to predict actual losses in earnings to
revise the rating system, either by changing the rating criteria in the
schedule or by adjusting the amount of compensation associated with each
rating. 

The
2007 VDBC report, Honoring the Call to Duty: Veteran’s Disability Benefits
in the 21st Century
, recommended that priority be given to the mental
disorders section of the rating schedule, urging that VA begin by updating
those body systems that addressed the rating of post-traumatic stress disorder,
other mental disorders, and traumatic brain injury.  The report further recommended that VA
address the other body systems until the rating schedule is comprehensively
revised.  Another recommendation, made by
the President’s Commission on Care for America’s Returning Wounded Warriors in
its 2007 report, Serve, Support, Simplify, is that the rating schedule
focus on a Veteran’s ability to function directly instead of inferring it from
physical impairments.

One
major aspect of the previously mentioned VDBC report was the results of a
survey study by the Center for Naval Analyses (CNA) on disability compensation
as a replacement for the average impairment in earning capacity.  It was determined that VA compensation, on
average, is generally appropriate relative to earned income losses.  However, the study found, particularly, that
Veterans with physical disabilities are properly compensated, while those with
mental disabilities may be under-compensated. 
The study also found that Veterans entering the system at younger ages
are generally under-compensated, while those entering at older ages are
generally over-compensated.  While the
study provided VA with an empirical basis for developing ways to correct any
rating inconsistencies, it also confirmed that the current rating schedule
generally provides fair compensation for lost earnings. 

VA
is moving forward with a complete revision of the rating schedule while
understanding that the current rating schedule is in many aspects sufficient as
an adequate proxy for earnings loss. The efforts VA is taking toward
modernization will ensure it continues to effectively serve Veterans.

In
October 2009, following these studies and reports, VA began a comprehensive
revision and update of all 15 body systems contained in the rating
schedule.  VBA has implemented a project
management plan detailing the organizational, developmental, and supporting
processes that will result in a complete modernization of the rating schedule
by 2016.  The plan calls for the
application of current medical science and econometric earnings loss data,
consistent with our charge in 38 USC §1155. 
VBA’s project management plan incorporates a comprehensive, systematic
review process for each body system, to include an initial public forum
intended to solicit updated medical information from governmental and
private-sector subject matter experts, as well as input on needed improvements
in the rating schedule from the public and interested stakeholders, such as
Veterans Service Organizations.  These
forums have gathered medical science experts and interested stakeholders in a
single meeting to engage in challenging dialogue and capture current medical
information, all in the most transparent manner possible.  In 2009, VA held mini-forums for the
endocrine and hematologic/lymphatic systems. 
Public forums for the mental disorder and musculoskeletal systems were
held in 2010.  In the interest of
expediting the rating schedule revision process, in 2011, VA held public forums
regarding eight body systems: dental and oral conditions, the genitourinary system,
the digestive system, rheumatologic diseases and immune disorders, infectious
diseases, the cardiovascular system, the respiratory system, and the system
addressing the impairment of auditory acuity.

As
the next step in the plan, VA convened work groups of subject matter experts
for each body system to assist in development of specific changes.  A common theme emerging from the work groups
analyzing the schedule is the need for a shift in focus in the rating criteria
from a symptomatology-based system of rating to one which focuses on functional
impairment.  Subject-matter experts
involved with the revision process have concluded that while symptoms determine
diagnosis, the translation of symptoms into functional impairments and overall
disability is the indicator of
impairment in earning capacity. 

Another
important aspect of the review process for each system is the execution of an
econometric earnings loss study.  Each
study will provide the data necessary to determine whether current compensation
rating levels accurately reflect the average impairment in earning capacity for
specific conditions in the current rating schedule.  They will help identify any discrepancies
between earnings loss and VA disability compensation by analyzing if  conditions are adequately compensated based
on current associated evaluation levels. 
VA is partnering with The George Washington University in connection
with 5 body systems to analyze income and benefits data to carry out these
studies.  VA may solicit proposals from
other entities to carry out the studies for the remaining body
systems.  

To
provide a more concrete example of our process, I would like to describe the
steps VA has undertaken for one body system – the musculoskeletal system.  In August 2010, clinical musculoskeletal
experts, stakeholders, including Veterans Service Organizations and DoD
officials, gathered in Washington D.C. for a public forum addressing
musculoskeletal diseases and injuries. 
Following the public forum, the subject matter experts gathered to kick
off the workgroup phase, using information obtained in the public forum to
discuss areas of the current schedule potentially in need of revision.  Over the next 10 months, the workgroup held
periodic in-person meetings and teleconferences to craft revisions to the
schedule.  Simultaneously, The George
Washington University began an earnings loss study for the musculoskeletal
system.  Drafting of a proposed rule revising
the system has begun, and VA looks forward to publishing it in the Federal
Register
for public comment.  When
comments are received, we will consider each comment to determine whether
changes to the proposed regulations for the body system are needed and will
respond to each comment in a published final rule.  Changes to the rating schedule for the body
system will then become effective.

As
noted earlier, VBA is committed to modernizing the rating schedule by
2016.  Currently, proposed rules to
revise three body systems are undergoing final review within VA, and drafts of
proposed rules for ten more systems are underway, and all will incorporate the
results of earnings loss studies.  This
week, public forums to obtain the input of medical experts and interested
stakeholders will be completed for the four remaining body systems.  

While
VA is nearing the completion of its modernization of the rating schedule, this
effort does not signify the end of the initiative.  VA intends to establish a process that
requires continual review and more frequent updating of body systems.  This will ensure America’s Veterans are
compensated for their disabilities based on both cutting-edge medical science
and the economic impacts of their disabilities resulting from military
service. 

III. Conclusion

VA recognizes the importance of ensuring
that its Schedule for Rating Disabilities meets the needs of Veterans in the
21st Century.  Through a successful
modernization and revision of the rating schedule, VA is anticipating and
proactively preparing for the needs of Veterans and their families.  VA is currently implementing a comprehensive
initiative to modernize the rating schedule, with input from, DoD, VSOs,
private-sector experts, members of the public, and Congress.  VA continues to look for ways to improve the
rating schedule and will consider changes and improvements that appropriately
compensate our Nation’s Veterans while meeting the rating schedule’s statutory
mandate.  VA looks forward to continued input from this subcommittee,
Congress, and other stakeholders in working together to ensure the best
possible rating schedule for our Nation’s Veterans and their families. 

 

Prepared Statement of John R.
Campbell, Deputy Assistant Secretary of Defense

Mr. Chairman and Members of the Subcommittee:

Thank you for the opportunity to be here today to discuss the use of the
Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) by the
Department of Defense (DoD) in the Disability Evaluation System (DES). Codified
in Title 38, the VASRD governs how the Department of Veterans Affairs (VA)
compensates Veterans for injuries and diseases acquired or aggravated during
military service.

As you know, the Integrated Disability Evaluation System (IDES) integrates
the DoD and VA DES processes in which Service members receive a single set of
physical disability examinations conducted according to VA examination
protocols, disability ratings prepared by VA, and simultaneous processing by
both Departments to ensure the timely and quality delivery of disability
benefits. Both Departments use the VA protocols for disability examination and
the VA disability rating to make their respective determinations. DoD determines
fitness for duty and compensates for unfitting conditions incurred in the line
of duty (Title 10), while VA compensates for all disabilities incurred or
aggravated during military service for which a disability rating is awarded and
thus establishes eligibility for other VA benefits and services (Title 38).

To ensure more consistent disability ratings, the National Defense
Authorization Act for Fiscal Year 2008 (P.L. 110-181) mandated the DoD to use
the VASRD for disability ratings by the Physical Evaluation Board (PEB),
including any applicable interpretation by the United States Court of Appeals
for Veterans Claims, without exception. As a result, decisions on Service
member’s medical retirement and disability compensation are tied to the VASRD.
After a Service member is declared unfit, VA uses the VASRD to determine the
degree of disability resulting from the unfitting condition(s) and DoD then
applies the VA rating to ascertain whether retirement or separation applies. A
DoD disability rating of 30% or above qualifies for military retirement, while a
disability rating below 30% qualifies for separation and severance pay.

The VASRD compensates for the average impairment in earning capacity
resulting from such diseases and injuries and their residual conditions in civil
occupations, and VA compensation ratings are based on the degree of impairment.
As a result, there are some instances where VASRD ratings are not always
relevant to DoD’s requirements. Sleep apnea is an example of how VASRD ratings
may not accurately reflect the degree of disability or even unfitting
conditions. Under the VASRD, sleep apnea requiring continuous positive airway
pressure (CPAP) treatment, would receive a rating of 50%. Although this
condition might be unfitting for some military occupational specialties, many
other military personnel would be able to continue on active duty and function
very well with CPAP treatment.

VA is in the midst of a total rewrite of the VASRD and has solicited DoD
expert participation in upcoming public workshops. We appreciate VA’s outreach
to include DoD in the body system rating update review, and DoD plans to
continue to participate in VA’s public meetings. DoD and VA leadership are
discussing how to strengthen DoD’s role in the VASRD rewrite process. DoD very
much looks forward to having an active voice in future development and
modernization of the VASRD.

Mr. Chairman, the Department looks forward to continued collaboration with
the VA in achieving the goal of ensuring both Service members and Veterans are
evaluated using the latest medical evaluation and diagnostic criteria. Once
again, I appreciate the opportunity to discuss DoD’s views on the modernization
of the VASRD, and this concludes my statement.

Prepared Statement of James Terry Scott, LTG USA (Ret.),
Chairman, Advisory Committee on Disability Compensation

Mr. Chairman and Members of
the Subcommittee:  It is my pleasure to
appear before you today representing the Advisory Committee on Disability
Compensation.  The Committee is chartered
by the Secretary of Veterans Affairs under the provisions of 38 U.S.C. in
compliance with P.L. 110-389 to advise the Secretary with respect to the
maintenance and periodic readjustment of the VA Schedule for Rating
Disabilities.  Our charter is to
“(A)ssemble and review relevant information relating to the needs of veterans
with disabilities; provide information relating to the character of
disabilities arising from service in the Armed Forces; provide an on-going
assessment of the effectiveness of the VA’s Schedule for Rating Disabilities;
and provide on-going advice on the most appropriate means of responding to the
needs of veterans relating to disability compensation in the future”.

Your letter asked me to
testify on the Advisory Committee’s work to date and my views on the work being
done by the VA to update the disability rating system.

The Committee has met
thirty five times and has forwarded two reports to the Secretary that addressed
our efforts as of September 30, 2010 and fulfilled the statutory requirement to
submit a report by October 31, 2010.  (Copies
of these reports were furnished to majority and minority staff in both Houses
of Congress.)  The Secretary of Veterans
Affairs responded to both reports.  

Our focus has been in three
areas of disability compensation: 
Requirements and methodology for reviewing and updating the VASRD; adequacy
and sequencing of transition compensation and procedures for service members
transitioning to veteran status with special emphasis on seriously ill or
wounded service members; and disability compensation for non-economic loss
(often referred to as quality of life). 
I am prepared to answer questions about these areas of focus.

After coordination with the
Secretary’s office and senior VA staff, we have added review of individual
unemployment, review of the methodology for determining presumptions, and
review of the appeals process as it pertains to the timely and accurate award
of disability compensation.  These issues
will be addressed in our next report to the Secretary and the Congress.

Regarding the current
project to update the disability rating system, I believe the project
management plan that the VA has laid out will achieve the goals sought by all
stakeholders, including the Congress. 
The revised VASRD will be a guide for veterans, medical examiners and
claims adjudicators that is simpler, fairer, and more consistent. 

The Secretary and the VBA
should be commended for undertaking this long overdue revision which has been
repeatedly called for by the Congress as well as numerous boards, studies, and
reports.  Some of you may recall former
Senator Dole’s observation at the Congressional outbrief of the Dole-Shalala
Commission where he said that the VASRD is 600 pages of band-aids.  While perhaps an overstatement, his views
reflect those of many participants in commissions and studies. 

It is easy to understand
why the can has been kicked down the road for a long time.  The revision requires significant
resources.  The VA is working on many
high priority projects that compete for resources and management effort. 

The revision of the VASRD is not a stand alone
operation.  It is part of a larger effort
that includes electronic claims filing, use of disability questionnaires, and
improved claims visibility at all stages. 
In my judgment, many of the current VBA initiatives depend on a
successful and accepted revision of the rating schedule.

Some stakeholders have
expressed concern that the revision effort may adversely affect current and
future veterans.  My own view is quite
the contrary.  If properly done, the revision
will simplify and expedite claims preparation, medical examinations, and claims
adjudication.  These will, in turn help
the VBA reduce processing time and increase accuracy.  Consistency among raters and regional offices,
another recurring area of concern, should be improved.  

There is an inherent
resistance to change that must be overcome through involving all stakeholders
in the process and insuring that the purpose and results of the revision are
understood. 

A concern, which I share, is
that the process is not scheduled for completion until 2016. However, the scope
and complexity of revising and updating all 15 body systems is daunting.  The first major step, gathering and
assembling the medical data for all body systems is well along.  The forums at which each body system is
discussed by leading medical experts have resulted in broad agreement on how to
update medical terminology and medical advances. 

The work groups of subject
matter experts for each body system are now analyzing the results of the forums
in order to develop specific proposed changes to the schedule.

The econometric data sought
in conjunction with GWU will assist in determining the relationship between
specific conditions and average impairment of earnings loss.

The process, to include the
publishing of draft changes in the Federal Register offers all stakeholders an
opportunity to request clarifications and make comments.  I believe this step will protect current and
future veterans from unintended consequences as revisions move toward
implementation.

The Advisory Committee on Disability
Compensation is involved in all steps in the rating schedule revision process.  As an outside advisory committee, we are able
to offer advice and suggestions directly to the Secretary and senior VA
management.  We listen closely to the
subject matter experts from outside sources who meet with us as well as to the
VA professionals who are leading the effort. 
The members have an opportunity to ask questions, offer suggestions, and
track the progress of the revision.  We
are a sounding board for options and proposals. 
The Committee includes experience and expertise from DoD, VA, Congressional
staff, disability law, family programs, and the VSO community. 

In conclusion, the Advisory Committee on
Disability Compensation is deeply involved in the VA project to revise the VASRD.  We appreciate the openness of the
VA leadership and staff to our questions and recommendations.  We realize that even the best revision will
not solve all the complex issues of disability compensation, but the members
believe the updated schedule will address many of the noted shortcomings of the
current version such as outdated medical terminology, outdated diagnosis and
treatment regimens for illnesses and injuries, changes in the social and work
environment, and apparent earnings loss disparities between mental and physical
disabilities.  It will also offer an
institutional process for future updates.

Thank you for your
attention and the opportunity to testify today. 
I look forward to your questions. 
  

Prepared Statement of Verna Jones, Director, National
Veterans Affairs and Rehabilitation Commission, The American Legion

Mr.
Chairman and Members of the Committee:

As the nation’s largest wartime
veterans’ service organization, The American Legion has been deeply involved in
ensuring proper care and compensation for service disabled veterans since our
founding in 1919.  Every day, over 2,000 American Legion accredited service
officers are hard at work providing advocacy free of charge to veterans in
their often arduous quest for disability compensation for injuries and
conditions incurred as a result of their service.  These service officers are
front line soldiers in the fight for justice for these disabled veterans.  Their
insights, coupled with insights gleaned from interviews with VA staff in over
fifty Regional Office Action Review visits over the last decade, have provided
The American Legion with critical insight into the problems inherent in the VA
Rating Schedule.

Any attempt to reform or revise the
rating schedule must begin by considering the overall mission and purpose of
the Department of Veterans Affairs (VA.)  To paraphrase the words of President
Abraham Lincoln, VA exists to care for those who have borne the battle and for
their families and their orphans.  The American Legion believes therefore any
rating schedule must be built upon the guiding principle of serving the
disabled veteran. 

Understanding this principle, concerns
of VA must be examined and understood in the proper context.  Those with
experience in the VA disability rating system will agree the current
regulations are difficult for veterans and employees of VA to utilize
effectively.  However, care must be taken in revision to ensure regulations are
not simply changed for administrative expediency that comes at the expense of
veterans.  We cannot afford to simplify for bureaucratic convenience if those
simplifications result in an overall negative impact on disabled veterans. 

The adjudication of claims in a timely
and accurate manner is perhaps the greatest challenge facing VA’s service to
disabled veterans.  As of January 3, 2012 over 65 percent of pending
compensation claims were still pending over 125 days.  Accuracy figures are
difficult to determine as VA still does not publish accuracy ratings with the
same prominence as those for timeliness despite repeated requests from The
American Legion and other service organizations.  If VA is to achieve their
stated goal of 98 percent accuracy and zero claims pending over 125 days by
2015 they will clearly need help, and some of that help will most likely come
from a more efficiently designed rating schedule.

Clarity of language and ease of use will
be essential in making the tools adjudicators must use to fairly process
veterans’ claims.  Simply rewriting the regulations will not replace the need
to properly train those who must interpret the regulations on a daily basis to
ensure veterans receive their fair due.  Currently over half of VA’s employees
have less than three years experience on the job.  This is a transformational
time and that must be used to VA’s benefit, shedding institutional biases of
the past for a more agile and efficient workforce.  Of course, service to the
disabled veterans must assume its place at the proper position of prominence. 
These VA employees must be trained on the new regulations, and that training
time cannot be sacrificed in the service of raw output.  An improperly trained
staff would only waste the good efforts invested in the creation of the
regulation rewrite.

Any rewrite must also be directed
towards better consistency, and The American Legion believes this must be
considered not solely with regard to variations across regional offices, but
also across the various branches of active duty service and the medical and
physical evaluation boards.  One only has to consider lawsuits such as Sabo,
et al. v. United States
to realize there are still widespread issues with
proper application of the existing laws at the critical bridge point of
transition between active duty and veteran status.  American Legion personnel
also are deeply involved tracking the status of disabled active duty service
members experiencing the Medical Evaluation Boards (MEBs) and Physical
Evaluation Boards (PEBs) and have noticed inconsistencies across branches of
service. 

Just as veterans with identical knee
injuries should receive the same rating whether they are evaluated in Newark,
NJ or Oakland, CA active duty service members with identical injuries should be
evaluated equally regardless of whether they serve in the Air Force, Coast
Guard, Navy, Army or Marine Corps.  Furthermore, it is only common sense that
ratings on both sides of the green line dividing active duty and veteran status
should be consistent.  Sadly, this is not the current state of affairs.

The American Legion would like to thank
VA for the progress being made towards better inclusion of service
organizations and concerned stakeholders in the revision process.  This very
week I am attending a review of proposed changes to the VA Schedule for Rating
Disabilities (VASRD) and we have had regular meetings and briefings from VA as
a part of this process.  This is important.  Any change to the rating schedule
will require thought and analysis, and a proper period of informed consideration
of changes cannot be underestimated.  We hope this continues throughout the
process, and that there is deep consideration of the input from organizations
such as The American Legion and others.  Our service officers are right there
with VA’s adjudicators in the front line trenches.  The input from these
sources is incalculable and deserves heavy consideration and recognition of its
value.  Furthermore, The American Legion encourages field testing of any
changes before any final decisions are made.  Often unintended consequences are
not immediately apparent when a regulation is rolled out, and the old military
advice that no plan survives first contact is an important guiding principle.

The rating system as a whole is indeed
full of challenges.  The mental health section is desperately in need of
revision, and VA is in the process of addressing this.  In American Legion
Regional Office visits, this section is consistently mentioned by VA employees
as the most difficult to interpret.  Care should be exercised however.  In the
past, the diagnostic schedule for Traumatic Brain Injury was justly recognized
as being inadequate to address the impact of the sometimes terrible injury. 
However, the system ultimately rolled out, while medically addressing all the
proper information, was unwieldy and even incomprehensible to many who are
required to use the new schedule on a daily basis. 

The American Legion is sympathetic to
the line VA must walk in designing the rating schedule.  The ratings must be
complete enough to adequately address complex injuries, but must be clear
enough to be interpreted by non-medical employees during the claims process. 
It is difficult, but we believe possible, to achieve this with the input of veterans’
law experts and medical professionals as well as those adjudicators and service
officers who utilize the system on a daily basis.

This is not a new task.  Daniel Cooper,
Chairman of the VA Claims Processing Task Force noted the need to “rewrite and
organize the C&P Regulations in a logical and coherent manner…” over a
decade ago in October of 2001.  This is an ongoing task and will require
continued input of all interested stakeholders be they from Congress, VA, the
service organizations or even the lawyers and medical professionals who also
use the system.

If there is one underlying point to
remember throughout this process however, it is this: the disability system
exists to serve those veterans who have suffered ongoing and often devastating
effects in the service of this country.  Every act must be considered in light
of how well it will serve those veterans. 

Prepared Statement of Paralyzed
Veterans of America

Chairman
Runyan, Ranking Member McNerney, and members of the Subcommittee, Paralyzed
Veterans of America (PVA) would like to thank you for the opportunity to provide
our views on the current state of the Department of Veterans Affairs (VA)
ratings schedule and the steps that are being taken to transform the ratings schedule
and claims process into a more modern system.  As you know, the VA is currently
in the process of revising the Schedule for Rating Disabilities.  Meanwhile, it
is also in the process of transforming the entire claims process into a more
modern system that should ensure that veterans will receive an accurate ratings
decision the first time.

VA
Schedule for Rating Disabilities

The
amount of disability compensation paid to a service-connected disabled veteran
is determined according to the VA Schedule for Rating Disabilities (VASRD),
which is divided into 15 body systems with more than 700 diagnostic codes.  In
2007, the Congressionally mandated Veterans Disability Benefits Commission
(VDBC), established by Public Law 108-136, the “National Defense Authorization
Act of 2004,” recommended in its final report that the VA regularly update the
Schedule for Rating Disabilities.  Likewise, the Institute of Medicine (IOM)
Committee on Medical Evaluation of Veterans for Disability Compensation,
supported this idea in its report “A 21st Century System for
Evaluating Veterans for Disability Benefits” recommending that the VASRD be
regularly revised to reflect the most up-to-date understanding of disabilities
and how disabilities affect veterans’ earnings capacity.

In
line with these recommendations, the Veterans Benefits Administration (VBA) is
currently engaged in the process of updating all 15 of the body systems. 
Additionally, it has committed to regularly updating the entire VASRD every
five years.  As VBA indicated in its statement before the Subcommittee at the
hearing on January 24, 2012, the review process for all 15 body systems is in
various stages of completion, ranging from interim final rules being written to
already having been posted for public review in the Federal Register. 

Meanwhile,
in order to help implement the recommendations of the VDBC, Congress
established the Advisory Committee on Disability Compensation (ACDC) in Public
Law 110-389 to advise the Secretary on “…the effectiveness of the schedule for
rating disabilities…and…provide ongoing advice on the most appropriate means of
responding to the needs of veterans relating to disability compensation in the
future.” In its 2009 “Interim Report” and its first “Biennial Report” dated
July 27, 2010, the Advisory Committee recommended that the VBA follow a
coordinated and inclusive process while reviewing and updating the Schedule for
Rating Disabilities. Specifically, the ACDC recommended that veterans service
organization (VSO) stakeholders be consulted several times throughout the
review and revision process, both before and after any proposed rule is
published for public comment.

While
VBA has held a number of public forums and made some other good faith efforts
to include greater VSO participation, the process itself does not allow input
during the crucial decision making period.  Because these public forums were
conducted at the very beginning of the rating schedule review process, veterans
service organizations were not able to provide informed comment, as the VBA had
not yet undertaken review or research activities.

VSOs
and other stakeholders were invited to offer comments and suggestions before
the VBA working groups were even created.  As a result, while the discussions
from the public forums may be part of the official record, the insight and
information provided during these forums was likely never considered by the
working groups once they were established.  As the ACDC noted, it would have
been helpful to include the experience and expertise of VSOs during their
deliberations on revising the VASRD.  With
this in mind, the soon-to-be-released FY 2013 Independent Budget will
recommend that the VBA should involve veterans service organizations throughout
the process of reviewing and revising each body system in the rating schedule,
not only at the beginning and end of its deliberative process.  Moreover, the
VBA should conduct regular after-action reviews of the rating schedule update
process, with veterans service organization participation so that it may apply
“lessons learned” to future body system updates.  Additionally, we highly
encourage the Subcommittee and full Committee to carefully review any proposed
rules that would change the VASRD, particularly if such rules would change the
basic nature of veterans’ disability compensation. 

Quality of LifeOne of the most important aspects of a revision to the ratings schedule for PVA and its members is the consideration of quality of life as a component of a new ratings schedule.  PVA’s opinion has always been that the schedule for rating disabilities is meant to reflect more than just the average economic impairment that a veteran faces.  VA disability compensation also takes into consideration the impact of a lifetime of living with a disability and the everyday challenges associated with that disability.  This approach reflects the fact that even if a veteran holds a job, when he or she goes home at the end of the day, that person is still disabled.While seriously disabled veterans have the benefit of many adaptive technologies to assist with employment, these technologies do not help them overcome the many challenges presented by other events and activities that unimpaired individuals can participate in.  Most spinal cord injured veterans no longer have the ability to conceive children.  Most of them cannot perform normal bowel and bladder functions or easily bathe themselves.  Many cannot play ball with their children or carry them on their shoulders.  Many severely disabled veterans suffer from potential negative stereotypes due to disability in all aspects of their lives.

This
matter was researched a great deal by the IOM Committee on Medical Evaluation
of Veterans for Disability Compensation in its report, “A 21st Century System
for Evaluating Veterans for Disability Benefits,” released in 2007.  IOM
recommended that the current VA disability compensation system be expanded to
include compensation for non-work disability (also referred to as “noneconomic
loss”) and loss of quality of life.

Under
the current VA disability compensation system, the purpose of the compensation
is to make up for average loss of earning capacity, whereas the operational
basis of compensation is usually based on medical impairment.  Neither of these
models generally appears to incorporate noneconomic loss or quality of life
into the final disability ratings, though special monthly compensation (SMC)
does in some limited cases. The IOM report stated:

In
practice, Congress and VA have implicitly recognized consequences in addition
to work disability of impairments suffered by veterans in the Rating Schedule
and other ways. Modern concepts of disability include work disability, nonwork
disability, and quality of life (QOL)…”

The
Veterans Disability Benefits Commission (VDBC), which was mandated by Congress,
spent more than two years examining how the rating schedule might be modernized
and updated. Reflecting the recommendations of the comprehensive study of the
disability rating system by the IOM, the VDBC in its final report issued in
2007 recommended:

The
veterans disability compensation program should compensate for three
consequences of service-connected injuries and diseases: work disability, loss
of ability to engage in usual life activities other than work, and loss of
quality of life.

Ultimately,
the IOM Report, the VDBC, and the President’s Commission on Care for America’s
Returning Wounded Warriors (the Dole-Shalala Commission) all agreed that the
current benefits system should be reformed to include noneconomic loss and
quality of life as a factor in compensation.

With
regards to the question of how to quantify quality of life for certain
service-disabled veterans for compensatory purposes, PVA believes an important
benchmark to examine would be how “regular need for aid and attendance
(A&A)” is assessed. The need for regular A&A is measured against
enumerated criteria that have to do with meeting basic human needs (answering
the call of nature, protection from hazards of daily living, etc.) insofar as a
catastrophic disability has impeded the ability to address those needs.  As
with the demonstrated “need” for something, quality of life is an abstraction
that, while subjective, can be predicated on differentiating objective
indicators of a veterans potential for success (notwithstanding his or her
disability) based on education level, rank, employment, and similar factors.  

Mental
Disorders Ratings Schedule

PVA
also has serious concerns about potential changes to the mental disorders
rating table that have been discussed and may be proposed to create an entirely
new methodology for rating mental health disorders, such as PTSD.  Since this
proposal was developed entirely after the public forum conducted by the
Veterans Health Administration and VBA in January 2010, it has essentially been
done without any VSO input.  The VSO community has only been afforded two
additional opportunities to be updated on the activities of VBA with regards to
revising the mental health disorders component of the VASRD. 

Despite
very little information being provided, we have concluded that VBA has decided
to go beyond updating or revising the schedule, and instead are intending to
completely discard the current system entirely and develop a dramatically
different process for rating and compensating veterans for service-connected
mental health disorders.  Based on briefings we received in 2011, it seems that
the VBA intends to implement a mental health disorders rating schedule that
looks only at how often a veteran was unable to work effectively.  If this is
in fact the approach that VBA has chosen, then it has apparently developed a
ratings schedule completely contradictory to the long stated purpose of
veterans’ disability compensation.

PVA
is particularly appalled by the mere suggestion that this is an acceptable
method to rate a veteran’s service connected disability.  It blatantly ignores
the far greater impact that a disability has on that veteran’s quality of life
and ability to accomplish activities of daily living.  If VBA does in fact
present a revised ratings schedule that presumes to rate veterans according to
inability to perform work, this Subcommittee, and in fact all of Congress,
should vigorously oppose this plan.  While VBA has the regulatory authority to
update and revise the VASRD, considering the limited transparency to the
process, it will be important for Congress to look closely at any changes being
proposed.  Most importantly, Congress must ensure that such revisions adhere
strictly to the law which requires that the levels of disability compensation
are based on the principle of the “average loss of earnings capacity” as
required by statute.

To ensure that the
revisions accurately reflect the intent of the law and substantially address
the disparities found by the studies cited in this article, the IB veterans
service organizations strongly recommend that VA conduct extensive testing of
the revised criteria against cases rated under the existing criteria prior to
publication of a proposed revision.  The test should include both the new
rating criteria and revised disability examination protocols.  It is only
through such testing, the results of which can be used to support the proposed
revisions that veterans can be assured that the new criteria corrects past
inequities.

Variability
in the IDES/MEB Process

Currently,
the process for evaluating servicemembers through the integrated disability
evaluation system (IDES) and the Medical Evaluation Board (MEB) contains too
much variability across military departments and between the VA and the
Department of Defense (DOD).  While VA rates a disability based on diminished
earning capacity, DOD evaluates based simply on the fitness to serve, two
altogether differing lenses of assessment in the philosophical and practical
sense.  It is important to remember, however, that the VA’s disability
evaluation examines the veteran as a whole with the combination of all possible
disabilities being rated.  Meanwhile, the DOD only evaluates to the limit of
determining fitness to serve, and no more.  This can produce a result where a Marine
who has incurred a spinal cord injury that has left him as a quadriplegic might
receive a 60 percent evaluation for spinal cord injury from DOD then a 100
percent rating from VA for the same injury.  PVA believes this disparity in
valuation can be resolved by adopting one standard across all military departments
and VA, perhaps by adding a “readiness” evaluation for servicemembers to the Disability
Benefits Questionnaires (DBQ) used to rate veterans.

The
"Treating Physician Rule"  

In
the past, VA referred to VHA Directive 2000-029, Provision of Medical
Opinions by VA Health Care Practitioners
, to provided veterans with an
efficient means of obtaining a medical opinion from their VA treating
clinicians when being considered for a rating from VBA.  However, VA revised
this directive, presumably once the higher courts began rejecting the
treating-physician rule, to impede a veteran’s ability to obtain a medical
opinion from his VA treating physicians to support a VA disability claim.  The
VA typically cites the case of Guerrieri v. Brown considered by the United
States Court of Appeals for Veterans Claims (CAVC) to support its rejection of
the “treating physician rule.  In that case, the Court rejected the rule
because it “might raise a conflict with the VA's evaluative process outlined in
38 C.F.R. § 3.303.”  Guerrieri, 4 Vet. App. at 472.  Thus, the Cout’s rejection
of the “treating physician” rule was based on its interpretation of 38 C.F.R. §
3.303.

The reasons VA proffered for adopting the directive made the case for why it
was necessary.  In fact, the Directive specifically states that “restrictions
on the ability of VA health care providers to provide statements and opinions
for VA patients are inconsistent with the goal of VHA to provide comprehensive
care and place a serious burden on veterans who depend on VHA for their care.” 
The VHA did reiterate the point that this policy must be implemented in a way
that avoids inappropriate VHA participation in the claims adjudication process
that determines eligibility for VA disability benefits.  The definition of
"inappropriate" in this case may require further discussion. However,
to altogether close off this means of accurately assessing the nature and
severity of a veteran’s condition only adds to the inefficiency that typifies
the VA claims adjudicative process.

Once
this avenue to substantiating a claim had been cut off, veterans were forced to
heavily rely on the findings of C&P examiners who neither had first-hand
knowledge of a claimant’s medical condition and prognosis nor provided the
hands-on medical care necessary to fully appreciate the medical history beyond
what could be gleaned from a VA claims file.  PVA believes that the original
provisions of VHA Directive 2000-029 should be reinstated in order to allow a
veteran to substantiate his or her claim for disability based on medical
treatment he or she received within the VA.  While opinions have called into
question the objectivity of a medical care provider’s opinion when substantiating
his or her patient’s condition, we see no reason why the “treating physician’s”
opinion should be marginalized, as is currently the case in the claims process.

PVA
appreciates the opportunity to express our views on the ongoing revision of the
VASRD.  We cannot emphasize enough that the final outcome of any revisions
should place the interests of the veteran first and foremost.  We look forward
to working with the Subcommittee to ensure that veterans receive the best
possible determination for benefits in the most efficient manner possible. 
Thank you.

Prepared Statement of Jim Vale,
Director, Veterans Benefits Program, Vietnam Veterans of America

Chairman Runyan,
Ranking Member McNerney and Members of the Committee, Vietnam Veterans of America
(VVA) thanks you for the opportunity to present our statement for the records on
"Rating the Rating Schedule- The State of VA Disability Ratings in the
21st Century." We would also like to thank you for your overall concern
about the VA Rating System that is impacting our troops and veterans,
especially the current generation of war fighters returning home today who are
suffering from Post-Traumatic Stress Disorder (PTSD).

We are deeply concerned
with the state of our VA Disability Rating System, and share many of the same
concerns as our fellow Veteran Service Organizations regarding the need to
compensate disabled veterans for their loss of “Quality of Life” and other
economic losses in addition to compensating for “average impairments of earning
capacity.”  Rather than repeating what has already been said, we would like to
focus our comments on the problems with the VA Disability Rating System when
the VA rates claims for Post-Traumatic Stress Disorder (PTSD).

The Current VASRD Is Grossly
Inadequate For Rating PTSD Because It Ignores Fundamental Differences Among Various
Psychiatric Disorders. 
VA regulations have historically
adopted the nomenclature and diagnostic criteria of the American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM).[1] The DSM
recognizes the differences among the various psychiatric disorders (e.g.,
psychoses, like schizophrenia, and neurosis, like PTSD).  Some psychiatric
disorders are organic in nature, some are acquired and some are congenital. 
Some are chronic, some are 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.[2]   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 VA 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 take 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.  VVA often advocates for a “Veterans’ Health Care System”, rather
than a health care system that happens to be for veterans, based on the unique
nature of veterans’ disabilities.  Such disabilities are incurred in
unique ways and have unique consequences.  It is the very nature of a
veteran’s disability that demands a system of evaluating disabilities that
keeps pace with technology, current medical standards and practices,
socioeconomic factors and individual self-esteem.

VA Does Not Follow
Their Own Procedures. 
As mentioned by previous VVA
Veterans Benefits Program Directors in prior VVA testimony, local Veterans
Health Administration (VHA) officials routinely do not provide adequate
training, materials, or time to examining clinicians to let them do their job
correctly in performing C&P exams.  An excellent example is the “Best
Practices Manual for Adjudication of PTSD Claims.”  VA examiners should be
trained in these “Best Practices” and given sufficient time by their clinic
directors to successfully complete their job.  We frequently hear
complaints from veterans that their C & P exam lasted only 20 minutes. This
is inadequate per IOM standards: 

“It is critical that
adequate time be allocated for this assessment. Depending on the mental and
physical health of the veteran, the veteran’s willingness and capacity to work
with the health professional, and the presence of comorbid disorders, the
process of diagnosis and assessment will likely take at least an hour or could
take many hours to complete…..Unfortunately, many health professionals do not
have the time or experience to assess psychiatric disorders adequately or are
reluctant to attribute symptoms to a psychiatric disorder..”
[3]

Examiners are required
by law to review a claimant’s entire claims file and medical record.[4]   
Unfortunately, it is common for veterans to appear for a C & P exam and
discover their examiner has not reviewed or even been provided their claims
folder.    

If VA properly used their
own manual, policy, procedures, rules, trained their employees properly, gave
them proper tests, and let their professionals do their job correctly; almost
all VA staff would get it right the first time.  This would obviate the need to
“churn” claims back and forth in the system.  Add to this effective
supervision and VA would greatly increase their accuracy and output.

VA Should Use The Best
Medical Science To Accurately Diagnose And Assess PTSD. 
The
Institute of Medicine (IOM) report of June 16, 2006 presented the best medical
science as to how to accurately diagnose and assess PTSD. Unfortunately, VA
does not follow these recommendations, even though VA commissioned and paid for
this study.  If VA were to use the PTSD assessment protocols and guidelines as
strongly suggested by the Institutes of Medicine back in 2006
[5], our veteran warriors
would receive the accurate mental health diagnoses needed to assess their PTSD.

International
Classification of Diseases (ICD) 9/10. 
VVA at this time does
not support the adoption of ICD9/10 to replace the VASRD and DSM codes for
mental health disabilities.  There are too many differences that would increase
the confusion and complexity for VA raters trying to rate PTSD claims.  For
example, ICD9/10 lacks DSM-IV criterion A2 for PTSD.[6]

Diagnostic And
Statistical Manual Of Mental Disorders (DSM)-IV.
We
are waiting for the revision of the DSM-IV (scheduled to be revised by 2013). 
Preliminary evidence suggests there will be further separation of some mental
health classifications.  We feel the VASRD should reflect these latest medical
advancements in classification of mental health conditions and follow the
revised DSM standards. 

Disability Benefit
Questionnaires (DBQ). 
VA describes DBQs as “…streamlined
medical examination forms designed to capture essential medical information for
purposes of evaluating VA disability compensation and/or pension claims from
Veterans or Servicemembers.” [7]
DBQs are designed to closely follow the VASRD, and increase consistency and
accuracy of VA rating decisions by replacing traditional C & P medical
opinions with “Turbotax-like” questionnaire for doctors to quickly point and
click when evaluating veterans.  This potentially reduces the amount of reading
a VA rater must do when rating a claim.  VVA supports the use of DBQs, but
cautions DBQs are only as good as the VASRD they are based on.

In closing, on
behalf of VVA National President John Rowan and our National Officers and
Board, I thank you for your leadership in holding this important hearing on
this topic that is literally of vital interest to so many veterans, and should
be of keen interest to all who care about our nation's veterans. I also thank
you for the opportunity to speak to this issue on behalf of America's veterans.

Vietnam
Veterans of America

 Funding Statement

January
30, 2011

 The national organization Vietnam Veterans of
America (VVA) is a non-profit veterans' membership organization registered as a
501(c) (19) with the Internal Revenue Service.  VVA is also appropriately
registered with the Secretary of the Senate and the Clerk of the House of
Representatives in compliance with the Lobbying Disclosure Act of 1995.

VVA is not currently in receipt of any federal grant
or contract, other than the routine allocation of office space and associated
resources in VA Regional Offices for outreach and direct services through its
Veterans Benefits Program (Service Representatives).  This is also true of
the previous two fiscal years.

 For Further Information, Contact:

Executive Director for Policy and Government Affairs

Vietnam Veterans of America.

(301) 585-4000, extension 127



[1] 38
C.F.R. § 4.125(a).

[2] 38
C.F.R. §4.130.

[3]National
Research Council. "2 Diagnosis and Assessment." Posttraumatic
Stress Disorder: Diagnosis and Assessment
. Washington, DC: The National Academies Press, 2006. Available: http://www.nap.edu/openbook.php?record_id=11674&page=17.
(last visited January 30, 2012).

[4] 38
C.F.R. § 4.2.

[5]National
Research Council. "2 Diagnosis and Assessment." Posttraumatic
Stress Disorder: Diagnosis and Assessment
. Washington, DC: The National Academies Press, 2006. Available: http://www.nap.edu/openbook.php?record_id=11674&page=1.
(last visited January 30, 2012).

[6] Id. p. 14.

[7] U.S. Dept. of Veterans Affairs, Fact Sheet:  Disability Benefit Questionnaires. http://benefits.va.gov/TRANSFORMATION/disabilityexams/docs/DBQ_Fact_Sheet.doc

(last visited January 30, 2012).