Mr. Chairman and Members of the Subcommittee:

I am pleased to have the opportunity to submit this testimony on behalf of the National Veterans Legal Services Program (NVLSP).  NVLSP is a nonprofit veterans service organization founded in 1980 that has been assisting veterans and their advocates for twenty-eight years. We publish numerous advocacy materials that thousands of advocates for veterans regularly use as practice tools to assist them in their representation of VA claimants.  NVLSP also recruits and trains volunteer attorneys, trains service officers from such veterans service organizations as The American Legion and Military Order of the Purple Heart in veterans benefits law, and conducts quality reviews of the decision-making of the VA regional offices on claims for VA benefits on behalf of The American Legion.

In addition, NVLSP represents veterans and their families on claims for veterans benefits before VA, the U.S. Court of Appeals for Veterans Claims (CAVC), and other federal courts. Since its founding, NVLSP has represented over 1,000 claimants before the Board of Veterans’ Appeals and the Court of Appeals for Veterans Claims (CAVC).  NVLSP is one of the four veterans service organizations that comprise the Veterans Consortium Pro Bono Program, which recruits and trains volunteer lawyers to represent veterans who have appealed a Board of Veterans’ Appeals decision to the CAVC without a representative. 

In General

Obviously, updating, modernizing, and otherwise improving the rating schedule would be beneficial to veterans. NVLSP would like to caution, however, that improving the rating schedule should not be considered as cure-all. For example, there is no amount of money that would adequately compensate anyone for the loss of (or loss of use) of a body part, permanent cognitive impairment, or loss of a creative organ. Ideally, in dealing with severe service-connected disability, we should not ask how much is the disability worth, we should ask how much we can this nation afford to pay. 

NVLSP suggests that the rating schedule be amended so that it would more accurately reflect both the impact on the average impairment in earning capacity and the negative impact of the disability on the veteran’s lifestyle. The current special monthly compensation rules which are intended in some respects to reflect adverse changes in lifestyle, (see 38 U.S.C. 1114 and 38 C.F.R. § 3.350) are complicated, confusing, and do not accurately reflect the negative impact of mental disorders on a veteran’s industrial capacity and lifestyle.

The fact that some veterans are not adequately compensated for their service-connected mental disabilities does not mean that the VA should reduce the evaluation of some physical disabilities. This is not a zero-sum game. Also, we caution that no change to the rating schedule should adversely impact any current service member.

Evaluation of Mental Conditions

For a long time, the VA has tended to under-evaluate mental disabilities. This has occurred at the same time that our society has evolved from one dominated by manual labor to a work environment that emphasizes intellectual endeavors. Therefore, the adverse impact of a mental disability on the average worker has increased over time.  That impact should not be constrained to whether the average person suffering from a mental disability could work on the type of farm that existed in 1947.    

The VA should adopt  new criteria for rating the degree of disability for all mental conditions that reflect  the adverse impact that severe mental disabilities have on an individual in the civilian world today. In addition, the rating schedule for mental disorders should be amended to remove the unfavorable disability rating criteria that apply to veterans suffering from mental disorders when compared to veterans suffering from physical disorders.  The rating schedule permits veterans with 100 percent scheduler evaluations for all conditions other than mental conditions to be evaluated as 100 percent disabled even if they are gainfully employed.

Veterans who suffer from severe mental disabilities and cannot perform any work can be evaluated as 100 percent disabled. But veterans suffering from a mental disorder cannot be rated 100 percent disabled if they are engaged in any employment, despite the severity of their mental condition. In the experience of NVLSP, some severely mentally disabled veterans can be lucky enough to find a job where they can be somewhat productive. They should not be penalized for trying to do some work while other veterans with physical disabilities are receiving compensation at the 100 percent disability level and earn a full-time salary as a productive worker. This does not mean that there should not be some connection between earned income and the evaluation of mental conditions. We just suggest that the connection be not so absolute.

Total Disability Based on Individual Unemployability (IU)

NVLSP agrees with the current VA rating policy regarding IU. Veterans who are so unlucky to suffer from both severe service-connected disabilities and severe non-service-connected disabilities should not be punished because they have multiple disabilities. If a veteran’s service-connected conditions would cause him or her to be unable to perform substantial gainful employment, that veteran should be awarded total disability based on individual unemployability.

NVLSP rejects any recommendation that would require the VA to implement a periodic and comprehensive evaluation (or review) of veterans in receipt of IU benefits. As a VA employee in the 1980s, I had to perform some of these reviews. They tend to become witch hunts. While NVLSP has no problem with the VA reviewing grants of disability benefits on a case-by-case basis, we oppose any systematic review of IU benefits. Also, age should never be any factor in the award or evaluation of compensation benefits. With Supreme Court justices regularly working well past age 80, and candidates for President over age 70, age should not be considered as a positive or negative factor.

38 C.F.R. § 3.340 states:

(a) Total disability ratings--(1) General. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent.

The longstanding policy should not be changed. It is fair and compassionate. See also, 38 C.F.R. § 4.16(b).

Improving rating criteria for Traumatic Brain Injury

NVLSP commends the efforts of the Department of Veterans Affairs’ (VA) to revise the current evaluation criteria for TBI.  The current diagnostic code (DC 8045) is very restrictive and promotes inadequate evaluations. The current DC is unfair because subjective symptoms of TBI are limited to a ten percent evaluation without any consideration to the frequency and severity of these symptoms.  (The current DC provides that “[P]urely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated as 10 percent disabling and no more . . . . [without a diagnosis of multi-infarct dementia associated with the brain trauma].”

Addressed below are specific comments regarding the following provisions of the proposed rule:

Evaluation of Symptom Clusters

The VA proposes to replace the subjective guidelines under DC 8045 with new evaluation levels of 20, 30 and 40 percent. The subjective symptoms are now lumped into a category described by the VA as symptom clusters.

While the proposed regulation is an improvement, the Legion and NVLSP believe that veterans who suffer from TBI should not be required to satisfy the narrow criteria for an extra-schedular evaluation in order to receive a total disability rating.  Veterans who suffer from frequent and severe “symptom clusters” are unlikely to be able to obtain substantial gainful employment.  Those who are unable to obtain substantial gainful employment due to a service-connected disability should be entitled to a 100% disability rating.  But VA’s proposed rule places a significant roadblock to a 100% disability rating for “symptom clusters.” 

Under VA’s proposal, a veteran is entitled to no more than a 40% schedular disability rating, no matter how frequent or severe the following “symptom clusters” are:

headaches, dizziness, fatigue, malaise, sleep disturbance, cognitive impairment, difficulty concentrating, delayed reaction time, behavioral changes, emotional changes, tinnitus or hypersensitivity to sound or light, blurred vision, double vision, decreased sense of smell and taste, and difficulty hearing in noisy situations in the absence of hearing loss,

The general pathway a veteran must travel to obtain a total disability rating for individual unemployability (“TDIU”) is to obtain at least a 70% schedular rating and satisfy the requirements for TDIU under 38 C.F.R. § 4.16(a).  But under VA’s proposal, veterans suffering from “symptom clusters” would be unable to obtain any schedular rating higher than 40 percent, no matter how frequent or severe the symptom clusters are.  This means that the only pathway to a 100% disability rating is if VA grants an extra-schedular rating under 38 C.F.R. § 4.16(b).  Because very few extra-schedular ratings are issued by VA, (especially an extra-schedular grant of total disability based on individual unemployability) this is highly unfair.

The VA indicates that the current diagnostic code 8045 is 45 years old and reflects a view that the various symptoms associated with TBI  could be due to malingering or hysteria. It appears this comment was inserted to explain the current rating policy.

Under the proposed rule, there must be at least three of the above listed symptoms present for a compensable evaluation to be assigned. The disability percentage would be based on a specific number of symptoms present (40%--9 or more symptoms; 30%--5-8 symptoms; 20%--3 or 4 symptoms).  The proposed regulation wrongly fails to credit the frequency and severity of these symptoms.

NVLSP appreciates that VA now has recognized that these symptoms could be due to subtle brain pathology. Because, however, the VA proposes to replace the current 10 percent maximum evaluation with rating levels of 20, 30, and 40 percent, NVLSP is concerned that this rating formula would continue to promote unfair adjudications because just as in the current DC 8045, the frequency and severity of the symptoms are ignored.

Also, the proposed regulation does not discuss how and when the longitudinal history of the disability should be considered. For some veterans the symptoms of TBI may wax and wane. Therefore, some veterans may be under evaluated if the history of their symptomatology is not considered.

Evaluation of Cognitive Impairment

While the proposed regulation does attempt to define mild impairment for the purposes of evaluating cognitive impairment, the proposed regulation does not define the terms “moderately impaired” and “severely impaired.” We strongly urge VA to define these terms with specificity to promote consistency and fairness in adjudication.

The formula used by the proposed regulation to evaluate the 11 common major effects of cognitive impairment would encourage much unfair adjudication. The proposed regulation is unfair because the formula does not fairly capture the impact of some of the major effects of cognitive impairment.  For example suppose a veteran has a score of three because his or her TBI causes the veteran to require assistance with the activities of daily living some of the time (but less than half of the time). If the veteran had only zero scores in the other major effects of cognitive impairment, the veteran would be evaluated as only ten percent disabled. This is patently unfair, especially given the fact that veterans with  a mental condition that causes just mild memory loss could  arguably receive a 30% evaluation under 38 C.F.R. § 4.130 (see the 9400 diagnostic code series).

Applicability Date

VA proposes that the provisions of this proposed rule would be applicable only to claims for benefits received by VA on or after the effective date of the rule. Therefore, pending claims would have to be adjudicated under the current unfavorable rule.

It does not make sense to apply the old rating criteria to a claim that has not been initially adjudicated, or is pending re-adjudication due to an appeal, simply because the claim was received prior to the effective date of the new rule. NVLSP urge you to amend this portion of the proposed rule to require claims and appeals filed prior to the effective date of the rule, but pending at the time the rule takes effect, to be adjudicated under the new rule.

Emotional and Behavioral Dysfunction and Comorbid Mental Disorders

It is clear, as admitted by VA in its comments, that many veterans who suffer from TBI also suffer from secondary depression (or other mental illnesses such as PTSD). Therefore, the proposed rule should be amended to require the VA to consider whether the record reasonably raises the issue whether service-connection is warranted for mental disorders (especially mental disorders secondary to the TBI) whenever service connection is granted for TBI, and, if so, to adjudicate such a separate claim. This should be done because it is fair and because many veterans with mental disorders at a disadvantage when it comes to prosecuting their claims.

Presumptions

The current “association” standard should not, as proposed by the Veterans’ Disability Benefits Commission (VDBC),  be replaced with a “causal effect” standard. Any move away from the “benefit of the doubt” standard would have a negative impact on all veterans. If we send our troops into dangerous  places, and if we put our service members into dangerous  situations, our nation must make certain to at least maintain the non adversarial nature of the VA claims process and protect the “benefit of the doubt” standard. The cost of compensating veterans who suffer from disabilities that are presumptive in nature is a cost of war.

Thank you for permitting NVLSP to testify on such an important issue.