The Real Problems with the VA Rating System

Stuart A. Steinberg is a National Service Officer with Vietnam Veterans of America

vietnow.com

(BEND) - I read, with interest, Derek Storm’s article about the VA improperly denying veterans benefits, particularly when it comes to ratings for service-connected disability compensation, and non-service connected pension. Compensation is awarded for injuries, or disease, sustained by a soldier on active duty, or which arises after discharge and is presumed to have been caused by active duty events, such as combat; herbicide exposure in Vietnam, Korea, or Thailand; traumatic brain injury from IED blasts; or acoustic trauma resulting in hearing loss and tinnitus. Pension is awarded for injuries and disease not related to military service, so long as the veteran served during a time of war.

The problem, as I see it, is largely due to a lack of training for ratings personnel, an overload in the number of cases each rating employee is handling, and a complete failure to properly analyze evidence in many cases, resulting in either a complete denial of compensation or pension, or in a rating that is not commensurate with what the medical evidence and particular facts show. The VA has admitted that approximately 14% of all original claims are wrongly decided; another source reports that 29% of claims that are appealed are reversed. In December 2013, the American Legion testified before the Senate Veterans Committee that the VA was greatly understating the accuracy rate. According to the Legion, of the 260 cases they reviewed in several regions, 55% had legal errors, or were improperly developed. In Baltimore, alone, 48 of 75 claims were found to have errors or were improperly developed. In Oakland, 26 of 36 claims decisions examined were faulty, meaning that the accuracy rate was about 27.8%.

I have been a service officer for Vietnam Veterans of America (VVA) since 1978, when I was a second- year law student. Since 2004, when I retired after 24 years as a public defender and capital defense investigator, I have pretty much been doing VA claims work as a volunteer, on a full-time basis. In 2004, I helped found Central Oregon Veterans Outreach (COVO) with eight other Vietnam combat veterans. COVO is now one of the country’s premier non-profits providing a full range of services to homeless, disabled, and disadvantaged veterans. Until late 2010, I handled COVO’s VA claims work as a volunteer, with assistance from another great service officer accredited by Associates of VVA, and three VA-funded work-study students. I am also the Veterans Benefits Coordinator for the National Explosive Ordnance Disposal Association/Vietnam EOD Veterans Association. I would guess that, in the past ten years, I have handled close to 1000 claims for compensation, pension, widow’s and dependents’ benefits, aid and attendance, and claims for the provision of prosthetic devices such as vehicle modifications, specialized braces for orthopedic problems, and devices and software for veterans who are visually impaired. Although I would estimate that I win about 80% of the claims I file at the first level, at least in part, many of these claims are rated too low, given the particular facts and medical evidence of the case.

Of the claims that I totally lose, or lose, in part, I file a Notice of Disagreement and choose to proceed with a Decisional Review Officer (DRO) proceeding at the Regional Office level, instead of proceeding directly to the Board of Veterans Appeals (BVA). I win almost all of my Notice of Disagreement cases, and, in the past ten years have only gone to the BVA about ten times, and had one case taken to the Court of Appeals for Veterans Claims by a pro bono law firm. All of the BVA appeals were either won, outright, or sent back to the Regional Office to be readjudicated. The Court of Appeals case was settled in 2013 in the first conference when the VA lawyers agreed that my original claim, filed in 2007, was wrongly decided. This case resulted in my client receiving some $91,000 in retroactive payment, all the way back to 1980. In getting to the Court of Appeals, the Regional Office and the BVA, on multiple occasions, simply ignored the facts, and refused to apply the law and VA regulations correctly. In the end, the utter failure by VA ratings people to properly evaluate evidence and proven facts is the reason for virtually every case I “lose” at the first level.

Several cases I am currently handling are good examples of what’s wrong with the VA rating system and the abject failure of ratings personnel to correctly analyze the medical evidence and facts of the particular case. One of the major problems concerns the VA’s apparent unwillingness to consider medical opinions of non-VA doctors or mental health professionals, and to rely exclusively on VA medical opinions, regardless of how ridiculous they are, how often they ignore proven facts, and how they often point to irrelevant facts to support a medical conclusion that is patently wrong and, in some cases, unethical and unprofessional. In these cases, although the VA medical person conducting the Compensation and Pension (C&P) exam claims to have read the veteran’s claims file, their ultimate report shows that they did not read the file, or that they ignored non-VA evidence. Mental health cases, particularly PTSD claims, are a constant pain my ass because the VA, including their C&P examiners, simply ignore evaluation and treatment records from non-VA mental health professionals. They also regularly ignore, or give little weight to, lay evidence, typically submitted as a sworn statement, signed under the “pain and penalty of perjury.” This occurs even though the BVA and federal courts have ruled, over and over, that lay evidence, by itself, is sufficient to support claim.

In my PTSD cases, I always have my clients evaluated privately before I file a claim. The reason for this is that mental health claims, unlike every other type of claim, must be diagnosed before a C&P exam is even scheduled. Only in mental health cases is this required, because the C&P exam, by itself, cannot be the basis for a rating. Why this is, is beyond me, it makes no sense, it is wrong, and it deprives veterans of both due process and equal protection of the law under the Fifth Amendment. In cases where my client has private insurance, the cost of the evaluation is covered. When my clients do not have insurance, they have to pay for the evaluation. One of the people I use is a clinical psychologist with vast experience working with combat veterans. She also happens to be a VA contractor. You would think, therefore, that the VA would pay attention to her professional opinions. They don’t. In all of the cases I have filed in which she has evaluated my client, not one single one of them has had the rating based on her opinion. In every single case, the ratings people rely only upon the VA C&P exam opinion and my doctor’s opinion is never mentioned, let alone discussed.

This becomes a major issue when it comes to the Global Assessment of Functioning (GAF) score, which is noted on Axis V of the Diagnostic and Statistical Manual of the American Psychiatric Association protocol for diagnosing a mental health condition. The GAF score relates symptoms to their impact on social and occupational functioning. The lower the score, the worse the symptoms and, therefore, the more serious the symptoms are because of the impact they have on a veteran’s daily life. I have never had a single case where the VA examiner agreed with the GAF score of my outside evaluator. In every single one of these cases, despite hearing the same facts about symptoms from the veteran, the VA examiner always—and I mean every single time—comes up with a higher GAF score, which means the veteran ends up with a lower rating. Even though rating people are supposed to discuss both opinions, and explain why they found the VA opinion more accurate, this never happens…ever! The paranoid side of me causes me to think that there is a VA policy that mental health examiners should make the GAF score as high as possible, which mean a lower rating and less VA budget money spent. Someone I know well, who is pretty high up in the VA mental health hierarchy, told me that many of the contractors they use to do mental health C&P exams, simply do not adequately comprehend how to use and score the Global Assessment of Functioning. This explains a lot.

In fact, if you assume that both my doctor’s evaluation and the VA medical opinions are essentially in equipoise—both present a possible and similar outcome—the reasonable doubt rule mandates that the veteran get the benefit of the doubt, and be granted the highest possible rating. I have never had this happen in any case involving a rating for a mental health condition. In one case I currently have on appeal, my evaluator gave the veteran a GAF score of 45—serious symptoms—the VA examiner gave him a 55—moderate symptoms. He was rated based solely on the VA opinion and rated at 50%. With a 45, it should have been a 70% rating. The two opinions were not discussed in the rating decision, and no explanation was given as to why the rating people chose to rely exclusively on the VA opinion. Thus, once again, my client was denied due process. I have this case on appeal through the DRO process and expect to get his rating raised to 70%, particularly since his private psychologist, whom the VA is paying for, has been giving him GAF scores of 35-41. It would not, however, surprise me if they deny the appeal and force me to go to the BVA.

In another case I have reopened on the basis of new and material evidence, my client, who served aboard an asbestos-riven destroyer for almost three years, was denied service connection for mesothelioma and asbestosis. Shortly after getting out of the Navy, he worked for the railroad for seven months in a job that did not—I repeat, did not—expose him to asbestos, such as was used in train brake linings and insulation. In the medical opinion, the C&P examiner, who was not a medical doctor specializing in pulmonary disease, but a Nurse Practitioner, contended that the seven months working for the railroad was “more likely than not” the cause of his mesothelioma and asbestosis. There was not a shred of evidence that even implied exposure during his short employment with the railroad. I could not make this shit up, if I tried to. She did not explain how she arrived at this conclusion, and did not discuss the opinions of two private doctors—one, a pulmonary specialist—who concluded that exposure in the Navy was the cause. The same thing happened in the rating decision; no discussion of the private opinions, and no explanation as to why the rater found the C&P exam more persuasive. My client was just reevaluated by a C&P examiner who is a pulmonary specialist and I am awaiting an opinion. Some of the facts that were ignored in prior rating decisions include proven evidence that virtually every part of his ship was asbestos-laden—from floor tiles, pipe insulation, boiler insulation, ceiling tiles, and all wire insulation. In addition, my client worked in the ship’s supply area. Thus, every part that came in was opened and handled by him and his shipmates in very close quarters. In addition, due to asbestos insulation in overhead ceiling tiles and on every pipe, his sleeping compartment was constantly covered in a fine dust caused by the asbestos insulation in these areas. All of this evidence was ignored and never mentioned in the rating decisions that have denied him service connection.

On February 26, I got a Notice of Disagreement decision that denied my client a rating for tinnitus. This man was a helicopter gunship pilot in Vietnam for 18 months and was exposed, on a daily basis, to mini-gun, grenade launcher, and rocket fire. He had 46 Air Medals, representing 1,150 hours of combat flight time. He crashed twice. Two months after his discharge, he reported in a VA audiology exam that he had recurrent tinnitus. Even in 1971, it was presumed that a chronic condition, like tinnitus, which arose within 12 months of discharge, had its etiology while the veteran was on active duty. At that time, however, you could only be rated for tinnitus if you had a head injury, despite the fact that, even in 1971, it had been universally established that tinnitus could be caused by acoustic trauma. This is another whole issue of the deprivation of due process and equal protection, but that’s a discussion for another day. Anyway, we reopened the claim in 2013 and it was denied. The decision claims that my client said during the exam that his tinnitus, which has become constant, began at that level in 2008. He did not, as the decision claims, tell the examiner that he had no tinnitus until 2008. He said that’s when it became constant. But, here’s the problem with this decision.

Even if the tinnitus had not begun until 2008, it is well established that delayed onset tinnitus is a medical fact. Furthermore, the VA’s own National Center for Rehabilitative Audiology Research (NCRAR), located in the same region—Portland, Oregon—where this claim is filed, states in its introduction that delayed onset tinnitus is a medical reality. Thus, as is often the case, the VA ignores its own research and denies a claim based on faulty and, in my opinion, false assumptions. Now, I’m appealing to the BVA and this means another three years, or more, before a decision is rendered. In fact, I just found two decisions by the Board of Veterans Appeals that reversed DRO decisions denying tinnitus claims for helicopter gunship pilots, long after they left the service. Both decisions state, unequivocally, that it is well established that gunship pilots were exposed to severe acoustic trauma and that the veterans’ and other witnesses’ lay statements were sufficient to grant the rating. In my case, the DRO claimed that my client’s statements were not relevant because they were “medical” opinions, which completely misstates what he said.

I could go on about similar cases that I have handled, or am currently handling, around the country. These problems are endemic throughout the VA rating system and the only way this will ever change, in my opinion, is by an act of Congress ordering the VA to abide by their own regulations and federal statutes that govern the VA ratings process. It is telling that the current pending legislation of Sen. Bernie Sanders, giving the VA a huge infusion of cash to streamline the VA, speed up the claims process, and increase medical benefits, did not include a single penny to hire the thousands of new people needed in the rating system in order to reduce the claims backlog. In fact, the VA is forcing ratings people in many regions to work a mandatory 20 hours of overtime per month in a ridiculous attempt to reduce the backlog. According to my friends who work for the VA, and who are forced to work overtime, they are completely stressed out to the point where their work suffers due to phony numbers they are required to meet. In order to reach the required quotas, their work is done too quickly to do the kind of comprehensive review that many cases require in order to reach a fair and just conclusion. Here is a question—why doesn’t the VA take all of the millions it is spending on overtime, and use that money to hire more ratings people, preferably, unemployed veterans? This is such an obvious solution that it is stupid that the VA hasn’t figured this out. If you didn’t know, the Sanders’ bill died in the Senate, today, because two right wing, extremist Tea Party members—Richard Burr (NC) and John Thune (SD) —blocked it because they wanted to amend it with legislation on Iranian sanctions. These are two guys who rant about the Constitution and wave the flag, yet, were too chickenshit to raise their right hand and swear to defend that document with their lives.

In regard to Senator Sanders’ current legislative proposal to increase VA funding, I thought about sending him, and Rep. Jeff Miller, chairman of the House Veterans Affairs Committee, a letter with some real truths about the problems with the VA rating system. I was going to do this because, I surmised, that, because of my many years of experience assisting my fellow veterans, they might actually pay attention to what I think. Oh, wait, I already did that a year ago and never got even a fucking thank you from some staff member who, no doubt, read my six-page letter, laying out the real backlog numbers in many regions and proposing that the VA is greatly understating the problem. I list four detailed solutions to many of the problems leading to the backlog and how they could be easily solved. No response. As I said, not even a simple, “Thank you.” In the end, I believe that neither the VA, nor Congress, is willing to listen to people, like me, and thousands of other service officers, who understand what the real problems are, and who have good ideas about how to resolve them. Simply throwing billions of more dollars at this negligent, irresponsible system, will not fix the problems and will not result in just, true and meaningful due process when it comes to making compensation and pension decisions.