IG Report: Review of State Variances in VA Disability Compensation Payments

Mr. Chairman and other distinguished members of the Commission, on behalf of Vietnam Veterans of America (VVA) and our National President, Thomas H. Corey, we are pleased to have this opportunity to present our views with respect to the pressing issues currently facing the Veterans’ Disability Benefits Commission, the U.S. Department of Veterans Affairs (VA) and, most importantly, this Nation’s disabled veterans and their families. VVA is most appreciative of your inviting us to provide oral testimony and a statement for the record in this matter, as well as and for your leadership in seeking to improve vital VA programs and services.

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

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

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

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

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

Although the Commission’s task is daunting, cognizance of a few fundamental principles will, we believe, serve as guideposts to maintain an even course through a unique and highly complex legal scheme and moral compact. We are all aware of the myriad issues that impact the VA’s compensation and benefits system (funding and service-connection as a threshold to VA health care, to name but two). However, given this Commission’s refined mandate, we will focus on those matters that have the broadest impact on the system in terms of eligibility for VA compensation and the adequacy of the current benefits scheme.

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

Since our inception, VVA has held that this bond is deeper than just promises. Rather, there is a covenant (and we use this term in its deepest sense) between the men and women who pledge life and limb in defense of the Constitution against all enemies foreign and domestic, and the citizens of the United States of America. Those who don the uniform do so faithfully, often enduring great hardship and danger. All give some, many give a great deal, and some make the ultimate sacrifice.

The converse of this sacrifice is that it is the obligation of the American people to protect that citizen who served in military service, particularly those who served during time of war. This means that where a veteran has been lessened by virtue of military service, whether physically, psychologically, economically, or spiritually, it is the duty of the American people to provide restoration to the fullest extent possible. The fourth item listed above is not the function of government, nor should it be. However, the first three are the duty of the government, acting on behalf of the people.

While there can be no dispute that the current VA compensation and pension system suffers from a wide variety of problems, its basic premise and design – to attempt to restore as fully as possible an individual who has been adversely affected by his or her military service to the physical, emotional and financial levels they would have enjoyed had they not suffered service-related disabilities – is sound. To barrow from the Office of Management and Budget’s Federal Programs Assessment Rating Tool (PART), the veterans benefits program’s purpose is clear and addresses a specific problem or need; it is designed to have a significant impact in addressing that problem or need; and it has measurable long- and short-term goals. As VVA sees it, the predominant problems with the system lies in its execution. Questions of timeliness, accuracy of decision-making, inadequate training and accountability of adjudication staff and management, as well as an outdated compensation methodology (i.e., the 1945 schedule for rating disabilities), are pervasive.

Consequently, our primary recommendation to the Commission is that the current VA compensation and pension system is fundamentally sound; one that needs to be executed, updated, fine-tuned and funded properly. Such being the case, there is no need to dismantle, revise or otherwise modify the essential elements of service-connected compensation, such as the definitions of who is a “veteran” for purposes of eligibility, or “service-connected disability” for purposes of entitlement to benefits.


The Twenty-four / Seven Principle.

Members of the Armed Forces are, for all intents and purposes, on call 24 hours a day, seven days a week. They are obligated to be where and when they are ordered and to perform any task required. Their duties run the gambit from carrying no inherent danger to substantial risk of death or serious bodily harm. Service personnel are also subject to the environment in which they serve, Geographic locations (e.g., jungle, desert, arctic); exposures (e.g., chemical, biological and radioactive agents): endemic infectious diseases (e.g., parasitic and fungal infections, malaria, hepatitis); traumatic injury and severe psychological stressors with the resultant secondary physiological effects, all combine to produce an effect that can lead to chronic physical and psychiatric disabilities. Accordingly, life in the active service cannot, and should not, be subject to nine-to-five / on- and off-duty / going to the office-type of job for purposes of eligibility for disability benefits.

This concept of being on duty twenty-four hours a day, seven days a week is clearly reflected in current as well as long-standing actual practice in all branches of the military, and not only in combat theaters of operation, This continuing reality is also reflected in current law. Pursuant to statute, the term “veteran” is defined as “a person who served in the active military, naval, or air service, and who was discharged or released therefore under conditions other than dishonorable.” 38 U.S.C.A. § 101(2) (West 2002). The term "service-connected" means, generally, "with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated, in the line of duty in the active military, naval, or air service." 38 U.S.C.A. § 101(16) (West 2002). An injury or disease incurred "during" military service "will be deemed to have been incurred in the line of duty" unless the disability was caused by the veteran’s own misconduct or abuse of alcohol or drugs, or was incurred while absent without permission or while confined by military or civilian authorities for serious crimes." 38 U.S.C.A. § 105 (West 2002).

It is abundantly clear that Congress, in enacting these statutes, understood that eligibility for VA disability benefits should not be limited by all-encompassing restrictions on when a disease had its onset or an injury occurred while the veteran was serving on active duty. Since the foregoing definitions contain no such restrictions, it is equally clear that Congress intended that eligibility for VA disability compensation not be hampered by requiring a claimant to prove that he or she was on duty when exposed to a pathogen or toxic agent; that he or she was “on the clock” when a stove in the mess hall exploded; that he or she fell down a stairwell aboard ship while carrying out a lawful order; etc. “Congress has designed and fully intends to maintain a beneficial non-adversarial system of veterans’ benefits. This is particularly true of service-connected disability compensation where the element of cause and effect has been totally by-passed
in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty.” H.R. Rep. No. 100-963, at 13 (1988).

One alternative to the general, equitable eligibility scheme currently in place is to limit VA disability compensation to only those disorders (resulting from either disease or injury) that were incurred in the “line of duty “ or “in the performance of duty”. VVA strongly believes that to so narrowly restricts eligibility for VA compensation and would fly in the face of the will of Congress and the American people who rely on the selfless men and women of our Armed Forces to keep our Nation safe and free. We cannot emphasize strongly enough the disastrous effect that such a definition of “service connection” would have on those who, through no fault of their own, are physically and emotionally diminished by their military service.

The most obvious adverse impact of redefining “service connection” to depend on a “line of duty” standard is the matter of proof that a disease was incurred or aggravated, or that an injury was sustained, in the performance of military duty. Such disabilities may not always be amenable to strict evidence that they resulted from such performance. The circumstances surrounding the precise moment of onset of contracting a virus, infection or other disease, an injury or an exposure to toxic substance frequently defy efforts to corroborate them precisely. That is why the system has been designed to complement the (at least) theoretical paternalistic approach to the VA benefits process. Veterans are to be afforded the benefit of the doubt, particularly when the evidence supporting their claim and the evidence against it are relatively balanced. See 38 U.S.C.A. § 5107(b) (West 2002).

Consequently, altering the current eligibility-related definitions to incorporate a pure “line of duty” standard would inequitably raise the burden of proof in cases where causative factors may be indiscernible or be very difficult to prove. A “line of duty” standard would further eliminate the benefit of the legal presumptions that Congress has afforded such disorders as those resulting from exposure to herbicidal agents, such as Agent Orange in Vietnam veterans; ionizing radiation in World War II and post-World War II veterans; and Gulf War Illness in veterans of the Persian Gulf War. These presumptions legally eliminate the need for medical nexus evidence to connect some incident in service to a currently diagnosed disorder. Moreover, where the cause or causes of disease are unknown, it would be virtually impossible for a victim of that disease to demonstrate that it had been incurred precisely while he or she was performing his or her duty.

The following is an example of the absurdity of adopting a “line of duty” standard. Say that a soldier has been ordered to build a brick wall in the middle of a busy military base. While building the wall, it collapses on him or her and results in severe residual disability. Under the “line of duty” standard, that soldier would be eligible for VA disability compensation. Now suppose that another soldier who, as fate would have it, is off-duty and walks down that sidewalk and that same wall collapses on top of him or her. That soldier also sustains severe residual disabilities. However, because he or she was not ordered to walk down that sidewalk or perform some task that would place him or her there, service connection for such disability would not be available.

Another example: A sailor is separated from active service. During service, the sailor worked as an engineer. In his or her off-duty hours, the sailor volunteered as a medical assistant in the sick bay and was continually exposed to blood and blood products. Twenty years after service, the sailor is diagnosed with hepatitis C. Under the “line of duty” standard, the sailor would not be eligible for VA disability compensation, since his or her risk factor, although currently recognized by the VA as a basis for service connection for hepatitis C, was not encountered in the “line of duty.”

Yet another example of an injustice that could occur under this “line of duty” concept involves the issue of military sexual trauma. We now know that sexual trauma is a significant problem in the military, and the command structure is trying to grapple with this issue in an effective way. However, under this concept, a woman sexually assaulted, and thereby suffering significant psychiatric and/or physiological impairments, would not be eligible for service connection for her disabilities. No one has “victim of sexual assault” as part of her, or his, military occupational duties. Further, under current conditions, she would not even qualify for VA medical care unless she becomes indigent. This would be an egregious insult to all of those who have been subject to assault in the military.

Granted, the foregoing may be extreme examples. However, they clearly illustrate the fundamental unfairness inherent under a more restrictive standard.

In addition, even if veterans were required to prove that their disabilities were incurred in the “line of duty”, the VA would concurrently be charged with the duty to assist them with the development of evidence in support of their claim in this respect. See 38 U.S.C.A. § 5103(a) (West 2002). This would greatly increase the VA’s adjudicative burdens in terms of time and effort at a time when huge backlogs already plague VA regional offices. Commensurately, with more issues to dispute, appeals and remands would increase, further escalating backlogs. In other words, a “line of duty” standard as a threshold for eligibility for VA compensation would be equally as onerous on the VA and it would be on veterans.

In sum, the current definitions of “veteran” and “service connection” work. They are equitable and form the basis of a just and effective system for attempting to make a disabled veteran as “whole” as possible after having sacrificed his or her health in service to our country. These definitions should be held as sacrosanct and not revised in any way.

Adherence to the Veterans Claims Assistance Act of 2000

In order to restore its intent that the VA have a statutory obligation to assist claimants for VA benefits with the development of evidence in support of their claims (called the “duty to assist” principle), Congress passed the “Veterans Claims Assistance Act of 2000” (VCAA) See 38 U.S.C. §5103A (West 2002). Congress felt it necessary to abrogate a decade’s worth of judicially created prerequisites that essentially required a claimant to submit sufficient evidence to prevail on a claim before the VA was required to assist the claimant in the development of favorable evidence. Immediately prior to the VCAA’s passage, the courts went so far has to hold that it was a violation of law for the VA to lend such assistance if the claimant had not first submitted a “well-grounded claim.” See Morton v. West, 12 Vet.App. 477 (1999)

The VCAA abolished the well-grounded claim requirement as a trigger for the VA’s duty to assist. Currently, that duty includes the obligation to assist the claimant in securing military records, medical records and other documentation, whether public, private or governmental, as well as the duty to perform Compensation and Pension (C&P) physical and psychiatric examinations where the medical evidence is inadequate to fully adjudicate the claim. The VCAA’s duty to assist has also been extended to include the VA’s duty to provide clear and precise notice of what evidence is required, as well as notice of who is responsible for getting the evidence, the claimant or the VA. Moreover, notice must come before there is a decision on the merits of the claim by the VA regional office. See, generally, Pelegrini v. Principi, 18 Vet.App. 112 (2004).

Although the law is clear with respect to the VA’s duty to assist claimants with the development of evidence in support of their claims, reports from our service representatives in the field, as well as what we see in the appellate cases we prosecute before the Board of Veterans’ Appeals, demonstrate repeated instances in VAROs across the country of breaches of the duty to assist. This is particularly evident in cases involving entitlement to service connection where there is evidence of an illness or injury during service and a diagnosis of a current disorder, but no or inadequate medical evidence of an etiological nexus (causal connection or relationship) between the two. In situations such as these, the VA is required to provide a C&P examination to determine whether there is such a relationship between a current disability and military service. See 38 U.S.C.A. § 5103A(d) (West 2002). This type of evidence is imperative for the VA to be able to make a decision on a claim for service connection, yet there appears to be a pattern of the VAROs and the BVA making adverse claims decisions based on the absence of medical nexus evidence.

In a recent per curiam decision, the U. S Court of Appeals for Veterans Claims overturned a BVA decision that did not provide a C&P examination for a medical nexus opinion. In Duenas v. Principi, 18 Vet.App. 512 (29944), the Court noted that, “Congress highlighted the importance of providing medical examination and opinions as part of [its] assistance by establishing standards for determining when VA is required to provide examinations an opinions.” Id. at 516. Indeed, the VA regulation that effectuates § 5103(d), requires the VA to provide a C&P examination for a nexus opinion where there is lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, evidence of an event, disease or injury during service, and evidence that the claimed disability or symptoms may be associated with service or another service-connected disability. See 38 C.F.R. § 3.159(c)(4)(i) (West 2002) . Thus, even if there is only the veteran’s testimonial as to the relationship between service and a current disability, a C&P examination for a nexus opinion would be warranted.

As Judge Hagel articulately stated in his concurring opinion in Duenas:

[t]he focus of the VCAA is to ensure that all information necessary to
making a determination on a claim is obtained and presented to the ad-
judicator as early on in the decision making process as possible. . . . If
provided with an examination, a veteran . . . is afforded an opportunity
to obtain expert medical evidence that is often necessary to support a
claim for benefits. If denied an examination by VA, however, a veteran
may be ill-suited to acquire that evidence on his or her own. The veteran
is faced with the somewhat daunting task of obtaining and likely pay-
ing for a specialized opinion from an expert who may be unfamiliar with
the content of the service medical and other treatment records and who
is uninformed regarding the importance of certain standards peculiar to
the need s of the V adjudication system.

Id., 18 Vet.App. at 521.

In addition to monthly compensation payments (often a veteran’s sole source of income), service-connection is often the key to a veteran’s entitlement to VA health care (often a veteran’s sole source of health care). Medical nexus evidence is the key to entitlement to service connection. A VA C&P examination is often the key to prevailing on a claim for service connection. In our experience, it is that neither the Veterans Benefits Administration, nor the Veterans Health Administration, consistently use their own manual (published in 2002) to rate claims for post-traumatic stress disorder (PTSD). Of course, such claims will be unevenly adjudicated if the VA does not train personnel properly or ensure that they use VA’s own claims processing manuals. Accordingly, VVA urges the Commission to seek measures that ensure that VA adjudicators comply with their statutory mandate to fully assist claimants for VA benefits with the provision of C&P examinations where warranted and all other legal duties.* See
Dofflemyer v. Derwinski, 2 Vet.App. 277, 281 (1992) (the Secretary must follow his own rules);

The Schedule for Rating Disabilities

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

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

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

In the 1940s, the United States was more of an industrial society. Quite naturally, the emphasis within the VA disability compensation scheme was on the impairment of a veteran’s earning capacity. However, times have changed. Advances in medicine have allowed for qualitatively greater treatment, cures and rehabilitation. Medical knowledge has increased exponentially in the last five decades, diagnostic tools have been refined and today’s medical professionals are practicing medicine in ways that could not have been envisioned by doctors even two generations ago. Yet the rating schedule remains static. While new disorders have been added from time to time and the symptoms listed in the diagnostic codes have been updated here and there, it is long past time for a wholesale revision of the rating schedule to bring it in synchronization with the state of modern medicine and American society.

One example of the inadequacy of the current rating schedule is rather glaring. VA regulations have historically adopted the nomenclature and diagnostic criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). See 38 C.F.R. 4.125(a). The DSM recognizes the differences among the various psychiatric disorders (e.g., psychoses, like schizophrenia, and neuroses, like PTSD). Some psychiatric disorders are organic in natures, 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. See 38 C.F.R. § 4.130. This is both inherently inconsistent and illogical. The DSM diagnostic criteria are expressly adopted, but fundamental differences among various psychiatric disorders are virtually ignored.

Consequently, 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 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 “veteran-ness” 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.

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

Meaningful Accountability and Training of VA Adjudication Personnel

It is axiomatic that a system is only as good as the people who run it. The VA disability compensation system can be flawlessly designed, however, if the personnel who operate it not are not adequately trained, supervised and held accountable for repeated errors, the system will grind toward disaster.

In a recent rather disturbing press conference, VA Secretary R. James Nicholson, Inspector General Richard Griffin and Under Secretary for Benefits Daniel Cooper, announced a May 19, 2005, VA Inspector General’s (IG) Report, entitled “State Variances in VA disability Payments”. The report was generated following newspaper reports of low disability compensation payments for Illinois veterans as compared to veterans in other states. In response, several Illinois Representatives requested the VA investigate the disparity. Following the investigation, the IG conceded that variances in average disability compensation payments by states have existed for decades, and stated that “[p]ayments by state are affected by legislated pay increases, an antiquated rating schedule, veteran demographics and inconsistent rating decisions [including] . . . claims processing practices, disability examinations, timeliness pressures, staffing levels, rate experience and training, and fraud.” Executive Summary and Management Comments of State Variances in VA Disability Compensation Payment¸ IG Report No. 05-00765 (May 19, 2005) at x. The IG further concluded that “ . . . some disabilities are inherently prone to subjective rating decisions, especially for conditions such as PTSD where much of the information needed to make a rating decision is not physically apparent and is more susceptible to interpretation and judgment . . . [which] leads to inconsistency in rating decisions.” Id.

In VVA’s view, the IG report got it half right. We believe that the IG is dead right when it identified inconsistent rating practices, staffing and training issues, and pressure to produce decisions quickly as factors resulting in wide decisional variances. Where VVA strongly disagrees, however, is the identification of claimant fraud and subjectivity in the face of missing evidence. It would seem that the IG is attempting to shift the blame of rating inconsistencies to the claimants themselves. We are perplexed, but not surprised, by this approach. The fact of the wide variances in ratings speak to inadequate training and supervision of VA adjudicators. The VA rating system is subject to uniform adjudication standards, procedures, training materials and data. See VA Adjudication Procedures Manual M21-1. The Veterans Benefits Administration and the C&P Service routinely issue “fast” letters to all of the VAROs with specific instructions on specific adjudicatory matters. If everyone is reading off the same page of music, the tune should remain consistent from musician to musician. This is clearly not the case at the VA.

Responsibility for ensuring timely and accurate decision-making must begin with leadership. VA department heads, managers and supervisors must be held individually accountable for patterns of erroneous decision-making on their watch. They must be equally responsible for ensuring that their adjudicators are adequately trained, receive and understand new laws, regulations and procedures, and that the work product is sufficiently monitored to promote consistently correct and timely rating decisions. VVA believes that there should be a national certification examination that all VA adjudicators must pass before being placed on the job, along with sufficient advanced training and proficiency testing. Supervisors should also be required to take periodic proficiency examinations to ensure that they remain qualified to supervise. Furthermore, there must be meaningful consequences at all levels of C&P staff for sub-standard performance if the current situation is ever to be improved.

VVA trains its service representatives to fully prepare claims that we submit to the VA on behalf of our clients. We expect them to get it right the first time. The same principle must apply to the VA. If VA adjudicators carefully review the arguments and evidence submitted with a claim for benefits, adequately develop the record in accordance with the VA’s duty to assist and correctly apply all relevant laws, regulations and jurisprudence, the VA will also get it right the first time. Accurate decision-making will reduce the number of appeals to the BVA and the Federal courts, and will, at the same time, reduce the backlogs at the VAROs and the Appeals Management Center, thereby lightening the VA’s crushing adjudication workload.

Conclusion

Although this statement and our testimony today cannot address all the issues that necessarily come within the Commission’s purview, we trust that those we have identified will significantly assist the Commission in its noble task. We wish to emphasize that as the Committee assesses the applicable laws and regulations that determine VA claimants’ eligibility for benefits, the appropriateness of the VA rating schedule and comparable Federal, state and private-sector disability programs, it will bear in mind the unique nature of military service and the sacrifice of our citizen-soldiers. Disabled veterans are a special class of individuals and deserve a disability compensation system as unique as they are and as functional as possible.

VVA sincerely appreciates the opportunity to share our views with the Commission and stands ready to assist in any way. We look forward to reviewing the Commission’s report with great respect and anticipation.