Mr. Chairman and Members of the Subcommittee:

I am pleased to have this opportunity to appear before you on behalf of the Disabled American Veterans (DAV), to address the Department of Veterans Affairs’ (VA) Schedule for Rating Disabilities (Rating Schedule).

The VA Rating Schedule is a key component in the process of adjudicating claims for disability compensation.  The Rating Schedule consists of slightly more than 700 diagnostic codes organized under 14 body systems, such as the musculoskeletal system, organs of special sense, and mental disorders.  For each code, the schedule provides criteria for assigning a percentage rating.  The criteria are primarily based on loss or loss of function of a body part or system, as verified by medical evidence; although, the criteria for mental disorders are based on the individual’s “social and industrial inadaptability.”  The schedule also includes procedures for rating conditions that are not among the 700 plus diagnostic codes.  Ratings are combined into a single overall rating when a veteran has more than one disability.

It is critical that the Rating Schedule be as accurate as possible so that rating decisions based on it are valid, reliable, and fair.  The Rating Schedule is valid when it reflects accurately a veteran’s degree of disability.  Likewise, it is reliable when veterans with the same disability receive the same rating or when two raters would give the same veteran the same rating.  Additional factors, however, include the quality and relevance of medical information, accuracy and ease of use of information systems, training and experience of raters, effectiveness of the quality review system, and number of raters and other personnel involved in the claims adjudication process. 

The present Rating Schedule was developed in 1945 and was based on revisions of schedules dating from 1917, 1925, and 1933.  According to statute, the Secretary “shall from time to time readjust this schedule of ratings in accordance with experience” (38 U.S.C. § 1155).  The 1945 Rating Schedule became effective on April 1, 1946.  The first revision, or “extension,” was issued on July 14, 1947.  By 1956, when the President’s Commission on Veterans Pensions (Bradley Commission) reported, there had been 14 extensions, most of them revising a specific section.

In 1961, VA addressed a part of the Rating Schedule largely dating from 1933.  The designers of the 1945 schedule had kept the classifications and nomenclature for mental disorders from the 1933 schedule.  The 1961 revision adopted four classifications of mental disorders: psychotic disorders, organic brain disorders, psychoneurotic disorders, and psychophysiologic disorders.  The 1961 revision also updated the nomenclature; added up-to-date diagnoses from the Diagnostic and Statistical Manual of Mental Disorders (DSM), such as dissociative, conversion, phobic, obsessive-compulsive, and depressive reactions; and dropped outmoded diagnoses. 

In 1988, the General Accounting Office (GAO)—now the Government Accountability Office—issued the report Need to Update Medical Criteria Used in VA’s Disability Rating Schedule  based on medical reports that a major overhaul was needed:  citing outdated terminology; diagnostic classifications that were outdated, ambiguous, or missing; evaluation criteria made obsolete by medical advances, and out-of-date specifications of laboratory tests.  In response to the 1988 GAO report, VA published its intent to update the entire Rating Schedule in a series of Advance Notices of Proposed Rulemaking (ANPRM) in the Federal Register beginning in August 1989.  The ANPRM indicated that other body systems would be subsequently scheduled for review until the medical criteria in the entire rating schedule had been analyzed and updated.  The ANPRM also stated that this was “the first step in a comprehensive rating schedule review plan which will ultimately be converted into a systematic, cyclical review process.”  (ANPRM, 54 Fed. Reg. 34,531 [August 21, 1989]).

In preparing proposed and final versions of the sections of the Rating Schedule, VA considered the views of Veterans Health Administration clinicians, Veterans Benefits Administration raters, groups of non-VA medical specialists assembled by a contractor, and comments received in response to the ANPRM and Notice of Proposed Rule Making (NPRM).  Revisions of nine body systems and the muscle injury part of the musculoskeletal system were made final and published in the Federal Register between 1994 and 1997.  The audiology part of the special senses was finalized in 1999, and a 10th body system, the “skin,” was finalized in 2002.  In addition to the foregoing, individual sections of the Rating Schedule that have been updated since the beginning of 1990 include, but are not limited to, the following:

The foregoing list is not all-inclusive.  Nonetheless, some of the dates of changes listed incorporated only minor substantive changes or substantially revised portions of a rating section rather than an entire section.  Still, others incorporated significant substantive changes to rating sections. 

The above information is provided in response to most of the popular rhetoric of the past year in that VA must completely revise its Rating Schedule and/or its entire disability compensation system.  The vast majority of support for such rhetoric stems from specious propositions that VA’s Rating Schedule, and essentially its entire rating system, is well over 60-years old—it is not.  VA’s disability system in 1945 was but a shell of today’s system—one that has evolved, as it should, with an ever-growing knowledge base of war’s effect on human life. 

Each major war of the 20th century brought with it new challenges to VA’s disability compensation system.  The end of World War II brought about the advent of atomic veterans; the Korean War resulted in thousands of severely frostbitten veterans; the Vietnam War left tens of thousands struggling with sickness and disease 30 years after the War’s end due to the effects of dioxin; the Persian Gulf War brought Gulf-War Syndrome; and now the current War is shedding new light on traumatic brain injuries (TBI).  In no previous war was there a need to recreate VA’s disability compensation system from scratch, nor does such a need currently exist.  The fluid nature of the law is such that it is made to evolve when needs arise; VA’s benefits delivery system is no different.  However, the DAV agrees that portions of VA’s Rating Schedule must be updated, such as, but not limited to, TBI residuals and the mental health rating criteria under the General Rating Formula for Mental Disorders.

Removing out-of-date Criteria, Traumatic Brain Injury, and Posttraumatic Stress Disorder

The Institute of Medicine (IOM) recently conducted a study of the Rating Schedule for the Veterans Disability Benefits Commission (VDBC).  The IOM report identified examples of conditions in need of updating, including craniocerebral trauma (because, for example, a number of chronic effects are not included), neurodegenerative disorders (because some currently known disorders are not included while some disorders now known to be autoimmune are included), spinal cord injury (because it relies on an outmoded classification system), posttraumatic arthritis (because it requires x ray rather than more up-to-date imaging techniques that provide much more information, such as computerized tomography [CT] and magnetic resonance imaging [MRI]), and mental disorders (because the rating criteria are based on sets of symptoms that do not apply to all mental disorders). 

Another IOM report reached a similar conclusion regarding posttraumatic stress disorder (PTSD), namely, that the rating criteria were not appropriate for PTSD because they included some symptoms consistent with other mental disorders but not PTSD.  The problem with evaluating disability caused by PTSD stems from the decision in the 1996 revision of the mental disorders section of the Rating Schedule to use a single rating formula to rate all mental conditions except eating disorders.  The 1961 revision of the mental disorders section had increased the classifications of disorders from two to four; the 1996 revision reclassified the conditions into eight categories to “conform more closely to the categories in DSM–IV, thus making it easier for rating specialists to correlate the diagnoses given on VA and non-VA exams with the conditions in the rating schedule” (Proposed Rule: Schedule for Rating Disabilities; Mental Disorders, 60 Fed. Reg. 54,825 [(October 26, 1995]).  But in place of three rating formulas in the 1961 revision—for psychotic disorders, organic mental disorders, and psychoneurotic disorders—VA implemented a single rating formula with the intent of “providing objective criteria based on signs and symptoms that characteristically produce a particular level of disability.”

The fundamental problem with the general rating formula for mental disorders is the weak nexus between severity of symptoms and degree of social and occupational disability, which make the inclusion of symptoms in the criteria problematic in terms of determining disability.  The mixing of symptoms and functional measures is also a weakness of the Global Assessment of Functioning Scale, which was criticized in the IOM report, PTSD Compensation and Military Research, which recommends looking at symptoms, function, and other dimensions of PTSD separately.  Another problem with the general formula is the propensity for VA decision makers to deny claims for increased ratings based on a veteran’s failure to demonstrate certain symptoms required for a higher rating, PTSD for example, when the lack of symptoms on which VA bases a denial are not associated with PTSD at all.  Therefore, any update to the Rating Schedule with respect to mental disorders should be based on condition-specific symptoms rather than a one-size-fits-all rating criteria.

The IOM found the current criteria under diagnostic code 8045 for rating craniocerebral trauma, or TBI, are not adequate for rating all conditions in this classification, and therefore recommended the criteria be updated.  VA added diagnostic code 8045 to the Rating Schedule in 1961 and has not changed it substantively since that time. 

TBI, per se, is not rated directly; rather, it is rated according to residual impairments.  The guidance under diagnostic code 8045 gives hemiplegia, epileptiform seizures, and facial nerve paralysis, which are physical effects, as examples of conditions that could be rated separately.  The guidance limits a rating based on symptoms such as headache, dizziness, and insomnia, to 10 percent.  This made sense in 1961 because VA did not thoroughly understand the harmful effects of even mild brain trauma on a person’s cognitive and emotional condition or the negative impacts of these effects on social and occupational functioning. 

Post-concussion effects are now recognized and under intense study. The proposed clinical management edition of the International Classification of Diseases, tenth revision (ICD-10) includes criteria for postconcussional syndrome.  The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) identifies postconcussional disorder as a potential diagnosis depending on further research.  The clinical criteria for postconcussional syndrome in ICD-10 call for a history of TBI and the presence of three or more of the following eight symptoms: (1) headache, (2) dizziness, (3) fatigue, (4) irritability, (5) insomnia, (6) concentration difficulty, (7) memory difficulty, and (8) intolerance of stress, emotion, or alcohol.  The DSM-IV criteria are: (1) a history of TBI causing significant cerebral concussion; (2) cognitive deficit in attention, memory, or both; (3) presence of at least three of eight symptoms—fatigue, sleep disturbance, headache, dizziness, irritability, affective disturbance, personality change, or apathy—that appear after injury and persist for 3 months; (4) symptoms that begin or worsen after injury; (5) interference with social role functioning; and (6) exclusion of dementia due to head trauma or other disorders that better account for the symptoms.

Currently, the rating criteria for TBI do not refer to evaluation of cognitive and emotional impacts through structured clinical interviews or neuropsychological testing.  Such impacts may be the only manifestations of closed-head TBI.  The guide for VA clinicians performing compensation and pension (C&P) examinations and the worksheet for brain and spinal cord examinations do not provide guidance for assessments of the cognitive effects of TBI, but do call for description of psychiatric manifestations.  The IOM also recommended that the Rating Schedule should be updated medically to ensure that:

• The diagnostic categories reflect the classification of injuries and diseases currently used in health care, so that the appropriate condition in the Rating Schedule can be more easily identified and confirmed using the medical evidence;

• the criteria for successively higher rating levels reflect increasing degrees of anatomic and functional loss of body structures and systems (i.e., impairment), so that the greater the extent of loss, the greater the amount of compensation; and

• current standards of practice in assessment of impairment are followed and appropriate severity scales or staging protocols are used in evaluating the veteran and applying the rating criteria.

VA has proposed to amend the Rating Schedule by “revising that portion of the Schedule that addresses neurological conditions and convulsive disorders, in order to provide detailed and updated criteria for evaluating residuals of TBI.”  73 Fed. Reg. 432 (proposed Jan. 3, 2008) (to be codified at 38 C.F.R. § 4.124a (diagnostic code 8045)).  The DAV commends VA for its efforts to improve the evaluation of disability residuals for veterans with TBI.  We nonetheless have serious concerns or otherwise outright disagreements as to how VA is proposing to structure the rating criteria for TBI.  A copy of VA’s proposed rule change concerning the rating criteria for TBI as well as DAV’s comments can and will be provided immediately upon request.

The IOM’s A 21st Century System for Evaluating Veterans for Disability Benefits report recommended numerous improvements that were endorsed by the VDBC and that are further supported by the DAV.  One of many primary recommendations supported by the DAV states:

The purpose of the current veterans' disability compensation program as stated in statute currently is to compensate for average impairment in earning capacity, that is work disability.  This is an unduly restrictive rationale for the program and is inconsistent with current models of disability.  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 in quality of life.

See A 21st Century System for Evaluating Veterans for Disability Benefits, Chapter 4, for more specific recommendations on approaches to evaluating each consequence of service-connected injuries and diseases.

Essentially, the DAV supports the VDBC via the IOM’s recommendation that VA undertake a comprehensive update of the Rating Schedule, devise a system for keeping it up to date, and establish a disability advisory committee to assist in the updating process.  VA should consider updating the evaluation and rating of mental disorders, especially PTSD, and TBI as its highest priority and first order of business because of their prevalence among veterans currently returning from the Global War on Terror. 

To be clear, however, DAV’s support does not extend to any plan that would result in temporary or permanent dual compensation systems.  Such schemes are inherently dangerous for a multitude of reasons.  Likewise, the DAV will adamantly oppose any proposed change in law, whether regulatory or statutory, aimed at, or consequently resulting in, degradation of current benefits and/or rights provided to disabled veterans. 

Total Ratings for Compensation Based on Individual Unemployability

The purpose of total ratings for compensation based on individual unemployability (“TDIU” or “IU”) is to provide VA with a mechanism for compensating veterans with ratings that do not meet the Rating Schedule’s threshold for receiving the 100-percent rate and who are unable to work because of their service-connected disabilities.  To provide a service-connected veteran with IU, VA evaluates the veteran’s capacity to engage in substantial gainful occupation as the result of his or her service-connected disabilities.  The definition for “substantial gainful occupation” is the inability to earn more than the federal poverty level.

In order to quality for IU, a disabled veteran with only one disability must be rated 60 percent or more.  However, if there are two or more disabilities, then at least one disability must be rated at 40 percent or more resulting in a combined 70-percent rating.  TDIU is not provided to veterans who receive a 100-percent rating because it is not necessary.

The adjudication of IU claims by VA raters takes into account the veteran’s current physical and mental condition and his or her employment status, including the nature of employment, and the reason employment was terminated.  Some factors are beyond the scope of inquiry for consideration of TDIU, such as age, nonservice-connected disabilities, injuries sustained post-service, or voluntary withdrawal from the employment market.  VA instructs it raters that IU should not be granted if the veteran retired from work for reasons other than for their service-connected disability.

The VDBC asked the CNA Corporation (CNAC) to conduct an analysis of service-connected disabled veterans who are receiving IU.  The central focus of CNAC’s work revolved around determining whether the increases in IU were due to veterans’ manipulation of the system to get additional compensation.  To conduct their analysis, CNAC analyzed the mortality rates of those with and without IU and who concurrently receive Social Security Disability Insurance (SSDI) payments.

The CNAC discovered that certain body systems are more likely to receive IU ratings.  For example, 28 percent of those with IU have musculoskeletal disorders and 29 percent have PTSD.  The CNAC surmised that this may be an area of implicit failure of the Rating Schedule.  Second, CNAC discovered that the growth in the IU population is mostly a function of demographic changes.  These changes have come about because veterans with service-connected disabilities are facing complications with those disabilities as they age.  As a result, CNAC concluded that the increase in IU is not due to veteran manipulation. 

The VDBC stated that VA should consistently base TDIU decisions on the impact of an individual’s service-connected disabilities, in combination with education, employment history, and medical effects of an individual’s age or potential employability.  The VDBC recommended that VA implement a periodic and comprehensive evaluation of IU-eligible veterans, and authorize a gradual reduction in compensation for IU recipients who are able to return to substantially gainful employment rather than abruptly terminating disability payments at an arbitrary level of earning.

The DAV is mindful of a desire to help unemployed disabled veterans return to work when feasible.  Most veterans desire to lead productive lives in society rather than attempt to survive on nothing but VA compensation, even when such compensation is paid at the 100-percent rate.  Nonetheless, the slightest misinterpretation by VA employees of changes to the law regarding entitlement to and retention of benefits under this program will result in an immeasurable number of unemployable veterans receiving an unlawful denial of benefits, or worse, a revocation of benefits.  The DAV opposes the idea of allowing “age” to become a factor in VA decisions regarding claims for entitlement to TDIU.  Denials of benefits based merely on age will result, and in those cases, relevant evidence will be ignored.

The VDBC also recognized that TDIU accommodates individuals with multiple lesser ratings but who remain unable to work.  Therefore, the VDBC recommended that as VA revises the Rating Schedule, every effort be made to accommodate such individuals fairly within the basic rating system without the need for TDIU.  To that extent, the DAV supports updating the Rating Schedule to reflect the true nature of the disability.  For example, a veteran receiving IU because of service-connected PTSD rated at 70 percent, or a spine disability rated 60 percent, may be more accurately rated at 100 percent.  In that, we certainly could not oppose revising the Rating Schedule to reflect a veteran as 100-percent disabled when he or she is unable to work because of disability.  We nonetheless must emphasize that at the very heart of the necessity for benefits based on IU is that no single disability or group of disabilities will ever affect two veterans in the same manner—what may render one unemployable may not the other. 

Evidence-based Criteria for Presumptions

While not in the list of priority recommendations by the VDBC, the issue of VA’s establishment of presumptive conditions was addressed by the Commission.  The IOM conducted an analysis and recommended a new approach for establishing which disabilities should be presumed related to military service.  Presumptions are currently established when there is evidence that a sufficient number of veterans experience a condition and it is reasonable to presume that all veterans in that group who experience the condition acquired the condition due to military service.

The IOM’s suggested approach includes using a causal effect standard for decision making rather than a less-precise statistical association.  The Commission endorsed the recommendations of the IOM but expressed concern about the causal effect standard.  Likewise, the DAV has equal, if not deeper, concerns over this proposal.  For example, numerous veterans of the first Gulf War in 1991 receive compensation for disabilities related to service in the theater of operations.  Many of those “Gulf War” related diseases are ill defined, undiagnosed, and usually produce a cluster of symptoms that cannot be attributed to a specific etiology.  To this day, research has not provided a specific cause and effect analysis for any single symptom, much less the myriad of symptoms experienced by veterans of the 1991 Gulf War.

Veterans of that war would have never received benefits for such disabilities had VA utilized a cause-and-effect standard to determine presumptive disabilities.  Science is not exact enough to provide a precise cause for every disability resulting from combat.  A statistical association is the fairest method of determining presumptive disabilities resulting from military service.

Quality of Life

The VDBC recommended, as a priority, that Congress increase the compensation rates up to 25 percent as an interim and baseline future benefit for loss of quality of life, pending development and implementation of quality of life measure in the Rating Schedule.  In particular, the Commission recommended the measure take into account the quality of life and other non-work related effects of severe disabilities on veterans and family members.  The DAV fully supports this recommendation.

Through lengthy, exacting, and comprehensive research, the CNAC determined that disability compensation, at most, helped disabled veterans achieve parity with their non-disabled counterparts to the extent that compensation substitutes a disabled veterans’ “average loss” of earnings due to disability.  This was not, however, the case for veterans with mental health disabilities, younger veterans with disabilities, and those with total ratings based on individual unemployability—these three groups were found to be below parity when compared to non-disabled veterans. 

These findings are evident that VA compensation replaces only the average in lost earnings for many veterans, but even much less for others.  In no event are disabled veterans being overcompensated.  The VDBC and other well-known studies have collectively agreed that service-connected disabled veterans are not compensated for the inability to engage in useful life activities that many able-bodied people take for granted, nor does it compensate for reduction in quality of life.  All recommendations from such studies and commissions have been for Congress to enact legislation ensuring that veterans are compensated for such losses. 

Essentially, the Rating Schedule compensates for work disability, not for a loss in quality of life.  It is therefore possible that ratings under the current Rating Schedule and accurate quality-of-life measures are not close.  If this is so, then the question arises of how not if VA should develop a way to compensate for each.  (I.e., adapting the current Rating Schedule to compensate for both, or creating a separate Rating Schedule for each consequence.)  These questions are yet to be decided.  Nonetheless, as stated earlier, the DAV opposes recommendations for a dual compensation system.    

Conclusion

The VDBC agreed that America has a solemn obligation, expressed eloquently by President Lincoln, “to care for him who shall have borne the battle, and for his widow, and his orphan….”  With this in mind, the VDBC stated:  “It is the duty of Congress and VA to ensure that the benefits and services for disabled veterans and survivors are adequate and meet their intended outcomes.”  Based on these obligations, the VDBC identified the following guiding principles.

1. Benefits should recognize the often enormous sacrifices of military service as a continuing cost of war, and commend military service as the highest obligation of citizenship.

2. The goal of disability benefits should be rehabilitation and reintegration into civilian life to the maximum extent possible and preservation of the veterans’ dignity.

3. Benefits should be uniformly based on severity of service-connected disability without regard to the circumstances of the disability (wartime v. peacetime, combat v. training, or geographical location.)

4. Benefits and services should be provided that collectively compensate for the consequence of service-connected disability on the average impairment of earnings capacity, the ability to engage in usual life activities, and quality of life.

5. 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.

6. Benefits should include access to a full range of health care provided at no cost to service-disabled veterans.  Priority for care must be based on service-connection and degree of disability.

7. Funding and resources to adequately meet the needs of service-disabled veterans and their families must be fully provided while being aware of the burden on current and future generations.

8. Benefits to our nation’s service-disabled veterans must be delivered in a consistent, fair, equitable, and timely manner.

These principles served as the moral fiber that directed the VDBC’s priorities throughout its work.  They are also synonymous with the mission of the DAV—“Building better lives for America’s disabled veterans and their families.”  Therefore, the DAV strongly suggests that as Congress moves forward in implementing many of the Commission’s recommendations, it bears these principles in mind and employs them as its lighthouse to navigate congressional action on the course set by the VDBC.

Society and its laws are evolutionary, and as such, they are slow-moving creatures.  The Framers of the Constitution took great care in ensuring that change does not come easy, but nonetheless provided for its evolvement.  Some in Congress today ignore this by acting hastily—attempting expeditiously to push legislative agendas aimed more at conserving the bottom line than conserving the benefits for which disabled veterans spent the last 100 years fighting.  Some of these agendas would wipe VA’s slate clean and force it to start over with the shell of a compensation system it once had in 1933, all while claiming we have come no farther since 1933.  Some of these agendas would pit veterans of today’s wars against veterans of yesterday’s wars—or worse, pit veterans against their government. 

We simply urge caution.  VA’s benefits delivery system must be considered in the larger context of today’s views on the rights of individuals with disabilities to live as full a life as possible.  It is therefore essential to envision a more comprehensive evaluation of veterans’ needs, including medical, educational, vocational, and compensation.  We respectfully remind Congress that many of those that came before you did their best to ensure that VA was a pro-claimant, veteran-friendly, non-adversarial system where the disabled veteran received the benefit of the doubt whenever doubt existed. 

The DAV supports a vast majority of the VDBC’s recommendations because they are well-researched, carefully planned suggestions with a potential of improving what is already a good system that cares for disabled veteran.  Once again, however, the DAV urges Congress to resist hastily laid plans designed to do more undoing than doing, or else the next battle we will fight in Congress will be the one against unintended consequences.

We hope the subcommittee will review the DAV’s recommendations and give them consideration for inclusion in your legislative plans.  Mr. Chairman, thank you for inviting the DAV to testify before you today.