A 21st Century System for Evaluating Veterans for Disability Benefits (2007) / Chapter Skim
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7 Individual Unemployability
7 Individual Unemployability
Pages 232-251
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From page 232... ...
The effects of nonserviceconnected disabilities also are prohibited as a consideration. BACKGROUND IU is a fast-growing part of the disability compensation program.
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From page 233... ...
Currently, according to the Veterans Benefits Administration (VBA) , 35 percent of IU beneficiaries have mental health conditions as their major diagnosis (of which more than two-thirds are posttraumatic stress disorder [PTSD]
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From page 234... ...
There is an advantage for the veteran in being rated 100 percent according to the Rating Schedule rather than extraschedularly for IU: a schedular 100 percent rating allows the veteran to engage in substantially gainful employment, while an extraschedular 100 percent rating based on IU does not. If a rater finds that a veteran is unable to secure and follow a substantially gainful occupation because of his or her service-connected disability, but the veteran does not meet the minimum rating level of 60 percent for one disability or 70 percent for multiple disabilities, one of which is 40
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From page 235... ...
The 1934 revision of the regulations authorized total disability ratings "without regard to the specific provisions of the rating schedule" if a veteran with disabilities is unable to secure or follow a substantially gainful occupation as a result of his disabilities (U.S. Congress, Senate, Committee on Veterans' Affairs, 2005)
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From page 236... ...
Social Security Administration reports are supposed to be obtained and considered if the veteran's evidence is insufficient to award compensation and shows that he or she receives Social Security disability benefits. Vocational rehabilitation records may be obtained and considered whenever 38 CFR 3.321.
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From page 237... ...
The focus of an IU claim record is on the accumulation of medical information, and raters are not required to have vocational records. However, if a veteran's records indicate that he or she is participating in VA's Vocational Rehabilitation and Employment (VR&E)
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From page 238... ...
Proposed changes included the following: • Reorganize and rewrite to specify the factors that would trigger consideration of IU rating and total "extraschedular" ratings • Reduce the percentage threshold for combined ratings from 70 to 60 percent and eliminate the requirement that one of the disabilities must be rated at least 40 percent • Create a uniform standard to determine an individual's inability to engage in "substantially gainful employment," instead of using as a basis for the determination a presumption of helplessness or bedridden status • Define "substantially gainful employment" as any work that is generally done for pay or profit that the veteran is able to perform with sufficient regularity and duration to provide a reliable source of income • Clarify that an assessment of the veteran's ability to perform activities generally considered necessary for "substantially gainful employment" would be the determining factor in assigning a total rating • In response to Moore v. Derwinski, require raters to consider medical evidence describing the veteran's service-connected disabilities and the extent to which they limit his or her ability to perform "activities normally required for substantially gainful employment," meaning both exertional 66 FR 49886, October 1, 2001, "Total Disability Ratings Based on Inability of the Individual to Engage in Substantially Gainful Employment (Proposed Rule)
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From page 239... ...
Common themes were the questioning of VA's approach to making determinations based solely on "medical evidence" (excluding "lay evidence") ; the inclusive and exclusive nature of percentage ratings and related extraschedular issues; the discussion of vocational rehabilitation issues relative to the consideration of benefits granted or denied based on age; the quality and appropriateness of evaluations; training or lack thereof; availability and types of work allowed and disallowed; regularity and duration of periods of work; alternate employment following surgery and during and after convalescence; and the ability or inability to continue working faced with the exigencies of managing disability.
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. This report was in response to congressional interest in the reason for differences in VA's average monthly disability compensation payments from state to state.
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However, he pointed out concurrent significant changes: • From the end of FY 1999 to the end of FY 2005, the number of veterans receiving compensation had increased by 17 percent from 2,252,980 to 2,636,979 at the end of fiscal year 2005 • There was an increase in the average combined disability over the same period • At the end of 2005, 29 percent of veterans receiving compensation had combined ratings of 60 percent or greater, which makes them eligible to apply for IU, compared with 17 percent in 1999 • Recent court decisions had also increased IU ratings15 • Advancing age, diabetes, and various presumptions of service connection for cancers associated with herbicide and radiation, as well as a significant increase in the number of veterans awarded service connection for PTSD, accounted for a substantial portion of the increase Richard Surratt, deputy national legislative director of the Disabled American Veterans, testified that the increase of veterans rated for IU over the past several years was somewhat consistent with the higher numbers of veterans in the population who are more seriously disabled. From FY 2000 to FY 2004, the number of veterans with 60 percent ratings increased by 31 percent; veterans rated 70 percent increased by 60 percent; veterans rated 80 percent increased by 75 percent; and veterans rated 90 percent increased by 91 percent.
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From page 242... ...
GAO found VA to be among the highrisk federal disability programs in need of modernization, including the compensation program, because it had not kept up with trends in science, technology, and medicine, and in the labor market. CONSISTENCY IN INDIVIDUAL UNEMPLOYABILITY DECISION MAKING The 2005 report of VA's Office of Inspector General focused on the variation in average disability compensation payments from state to state in FY 2004 (they ranged from a low of $6,961 to a high of $12,004)
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From page 243... ...
. Nevada Florida North Carolina Nebraska Washington Kentucky South Dakota Minnesota New Hampshire California Hawaii Pennsylvania Massachusetts Mississippi Wisconsin 7-02 Alabama Iowa North Dakota Landscape view New Carolina Tennessee New York Georgia Michigan Utah Indiana Kansas Alaska Virginia Ohio New Jersey Wyoming Connecticut Illinois Colorado FIGURE 7-2 Number of IU beneficiaries as percentage of veterans receiving disability compensation, by state, FY 2004.
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From page 244... ...
On February 21, 2007, the director of the C&P Service issued a training letter to all regional offices and centers handling IU claims. According to the cover memo, the purpose of the letter was to "promote consistency and accuracy in the identification, development, and evaluation of claims for individual unemployability by regional offices." The letter states in its introductory paragraph: Benefits granted under the VA Rating Schedule are intended to compensate veterans for the average impairment in earning capacity that results from service-connected disease or injury.
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Number of IU Beneficiaries per 1,000 Resident Veterans 10 15 20 25 30 0 5 New Mexico Maine Rhode Island Oklahoma Arkansas West Virginia North Dakota Nebraska Texas Montana Vermont Washington Hawaii South Dakota SOURCE: VA (2005:Appendix D, Table 21)
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From page 246... ...
FINDINGS AND RECOMMENDATIONS Vocational Assessment in IU Evaluation Raters use disability evaluation reports from medical professionals and other medical records to analyze IU claims, but they do not have compa rable functional capacity or vocational evaluations from vocational experts 25,000 2004 2006 20,000 Number of IU Claims Processed 15,000 10,000 5,000 0 <50 50–59 60–69 70 and older 9,745 19,861 13,374 14,554 2004 14,127 24,880 14,690 8,897 2006 FIGURE 7-4 Number of IU claims processed by age group, CY 2004–CY 2006. SOURCE: IOM staff analysis of data provided by VA Office of Performance Analysis and Integrity.
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From page 247... ...
In addition to medical evaluations by medical professionals, VA should require vocational assessment in the deter mination of eligibility for individual unemployability benefits. Raters should receive training on how to interpret findings from vocational assessments for the evaluation of individual unemployability claims.
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From page 248... ...
Age of IU Recipients The purpose of IU benefits is to provide full benefits to veterans who do not meet a schedule 100 percent disability rating and who cannot work because of service-connected disability. IU is not meant to provide benefits to every veteran with disabilities without earnings, such as veterans who voluntarily withdraw from the labor market because of retirement or for
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From page 249... ...
Disability compensation amounts do not increase in direct proportion to disability rating percentages. The largest dollar increase in payment is between the 90 percent ($1,483 per month in 2007)
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From page 250... ...
Presentation to the IOM Com mittee on Medical Evaluation of Veterans for Disability Compensation, Washington, DC, July 7. GAO (Government Accountability Office)
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From page 251... ...
2005. Department of Veterans Affairs Office of Inspec tor General review of state variances in VA disability compensation payments.
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