Joint Hearing of the Committee on Homeland Security and Governmental Affairs of the U.S. Senate and the Committee on Veterans’ Affairs of the U.S. House of Representatives at 1:00 p.m. CDT.
Witness Testimony of Mr. Theodore Jarvi, Past President of N.O.V.A. National Organization of Veterans’ Advocates, Inc.
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 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.
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. A higher rating was available, but only if the veteran is prescribed a certain amount of “bed rest” for his back condition. A 40% rating means a veteran with a profoundly painful back condition cannot even qualify as being unemployable under 38 CFR §4.16 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. 
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 (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.
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.
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.
Theodore C. Jarvi
Attorney at Law
Past President, NOVA
1050 E. Southern Ave., Suite G-3
Tempe, AZ 85282
Ted Jarvi has practiced law in Arizona for 38 years. He graduated with a degree in engineering from Arizona State University (ASU) in 1966, and a Juris Doctorate from ASU in 1973. Prior to attending law school he spent nine years on active duty with the U.S. Air Force, starting as basic airman, and ending as a SAC 0-3 aircraft maintenance officer in Thailand in 1970. During his law practice he was in the Air Force Reserves and later the Arizona Air National Guard, retiring as a JAG Colonel in 1997.
His civilian practice included general civil law and criminal defense including substantial trial work. Prior to, and during, his veterans law practice Jarvi held a designation as Criminal Law Specialist for 15 years. He has been recognized as a Criminal Law Specialist Emeritus. He is admitted to practice, and has practiced in, all levels of Arizona State Courts, the Arizona Federal District Court, the Ninth Circuit Court of Appeals, the U.S. Court of Appeals for Veterans Claims, and the U.S. Court of Appeals for the Federal Circuit.
Jarvi was a partner in two successive general practice law firms in Arizona over a 13 year period. In 1988 he became a sole practitioner in Tempe and has remained so to the present. In 1991 he represented his first veteran before VA. In 2002 he limited his practice solely to representation of veterans having problems with their VA disability claims. He has appeared as counsel in over 300 cases at the U.S. Court of Appeal for Veterans Claims. He was an original member of the National Organization of Veterans Advocates (NOVA) in 1993 and was president from 2004 to 2006. In 2008 he received NOVA’s Achievement Award for Excellence. He has been on the Board of Directors of the Veterans Court's Bar Association. He is a life member of American Legion, Veterans of Foreign Wars, and Vietnam Veterans of America. He works closely with the Blinded Veterans of American and has represented a number of blinded veterans.
Ted has given presentations on VA law and VA claims to such varied groups as the Judge Advocate Association, the Reserve Officers Association, the Vietnam Helicopter Crewman Association, NOVA, the National Organization of Social Security Claims Representatives and the American Association for Justice (formerly the American Trial Lawyers Association). He still is representing veterans from all services, and all locations, including veterans of World War II through the current Afghanistan War and Iraq War, at all levels of VA’s claims process.
VA Regulation Rewrite Project: Update January 2011, McKevitt, Pine, Russo.
Ankylosis means fusion, which is 0 degrees of Range of Motion.
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.]
 Sixty percent is the schedular requirement for unemployability consideration.
 “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.
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.
(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.