[Additional proposed changes to VA rules for mental]

The initial concern is the time period of reassessing functional impairment over 30 day increments. My other concern is elimination of consideration of what the claimants disability would be if he were not medicated or under treatment.  IMO this is relative information to assess the severity of the mental disability. You would have to consider both not just one or the other in order to make or rather assess the impact of the disease/condition.  This is what I meant to post instead of the current ECFR's.

VI. Notes to the Proposed General Rating Formula

VA proposes to add three notes at the end of the General Rating Formula for Mental Disorders to promote greater consistency and accuracy in applying the criteria.

The first note would provide that only one evaluation will be assigned for co-existing service-connected mental disorders. According to 38 U.S.C. 1155, the VA rating schedule shall compensate veterans for “impairments of earning capacity,” not specific diagnoses. And according to 38 CFR 4.14, evaluations of the same disability or manifestation under different diagnoses is to be avoided. Most mental disorders are “composed of multiple emotional, cognitive, and behavioral dimensions, many of which are shared across disorders.” Lee Ann Clark et al., “Three Approaches to Understanding and Classifying Mental Disorder: ICD-11, DSM-5, and the National Institute of Mental Health's Research Domain Criteria (RDoC),” 18 Psychol. Sci. in the Pub. Int. 72, 112 (2017). In addition, co-existing mental disorders, that is, comorbidity, “is the rule rather than the exception.” Id. Therefore, consistent with 38 U.S.C. 1155 and the rule against pyramiding, 38 CFR 4.14, Note (1) will instruct adjudicators not to assign individual disability ratings to more than one mental disorder given the likelihood of comorbid mental disorders and the prevalence of overlapping symptoms among such disorders.

The second note would explain that evaluations under the General Rating Formula for Mental Disorders would consider any ameliorating effects of medications prescribed for a mental disorder. In other words, if a veteran were receiving medication for a mental disability, VA would rate only the disabling symptomatology that exists after the ameliorative effects of medication are taken into account. We are adding this note because in Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the United States Court of Appeals for Veterans Claims held that, “[a]bsent a clear statement [in the rating criteria] setting out whether or how the Board [of Veterans' Appeals (Board)] should address the effects of medication,” the Board should not take those effects into account when evaluating a claimant's disability. However, consideration of ameliorating effects of medications is consistent with 38 CFR 4.2, which states that VA adjudicators should consider a disability “from the point of view of the veteran working or seeking work” and provide a current rating that “accurately reflect[s] the elements of disability present.” VA adjudicators should not be basing ratings on speculation of how severe a veteran's disability might be if he or she were not taking medication; the rating should be based on the actual elements of disability present. See generally McCarroll v. McDonald, 28 Vet. App. 267, 276-78 (2016) (Kasold, J., concurring in part).

The third note would explain that, in evaluating frequency, VA adjudicators should consider the percentage of time, in a given month, that impairment occurs. As discussed above, this is consistent with the WHO's ICF Checklist rate. VA seeks comment on the three proposed notes.

[Additional proposed changes to VA rules for mental]

Oh here is some of it:

 

§ 4.126 Evaluation of disability from mental disorders.

(a) When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 

(b) When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 

(c) Neurocognitive disorders shall be evaluated under the general rating formula for mental disorders; neurologic deficits or other impairments stemming from the same etiology (e.g., a head injury) shall be evaluated separately and combined with the evaluation for neurocognitive disorders (see § 4.25). 

(d) When a single disability has been diagnosed both as a physical condition and as a mental disorder, the rating agency shall evaluate it using a diagnostic code which represents the dominant (more disabling) aspect of the condition (see § 4.14). 

(Authority: 38 U.S.C. 1155) 

[61 FR 52700, Oct. 8, 1996, as amended at 79 FR 45099, Aug. 4, 2014]

[Additional proposed changes to VA rules for mental]

From what I read and understand this regulation change seems beneficial in some respects but adds more complexity to the rating criteria in the higher levels.   

This still should fall under some protections from the regulations.  Say Hypothyroidsm or high blood pressure, you have the disease, it is service connected and you take medication for it.  You still suffer from the disease and while it may be controlled by medication, this doesn't mean you don't have the condition any more, it just means that it is controlled by medication that you have to take for the rest of your life.

Am I remembering wrong or does this not fall under pre-stabilization regulations under the CFR.

§ 4.1 Essentials of evaluative rating.

This rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.

§ 4.10 Functional impairment.

The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Whether the upper or lower extremities, the back or abdominal wall, the eyes or ears, or the cardiovascular, digestive, or other system, or psyche are affected, evaluations are based upon lack of usefulness, of these parts or systems, especially in self-support. This imposes upon the medical examiner the responsibility of furnishing, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person's ordinary activity. In this connection, it will be remembered that a person may be too disabled to engage in employment although he or she is up and about and fairly comfortable at home or upon limited activity. 

I am having a little bit of trouble finding the references these two cover some of what I am talking about.  I thought it was pre stabilization ratings criteria but that doesn't fit.  Just because you take medication for a condition doesn't eliminate the condition it treats it.  To evaluate the disability you have to consider the functional effect on the Veteran if they were not taking the medication to treat the condition.  

Ill have to come back to this when I find the other references I was wanting to post, specifically the mental health references.

[BVA METRICS]

Say it isn't so, the VA throwing a smokescreen on numbers, the VA would never do that, right, I mean more plainly stated the VA numbers will always be played with, much like the regulations and evidence in Veterans' claims. Same old tactic just  acclimated to todays access of information. That's just my take on what is happening.  Modernization of the claims process. Delay, deny, and hide, didn't want to write die.  Although not far from the mark in most instances. Transparency, is only as good as accurate, contemporary factual data.  

[Found new disability listed in Ebenefits I did not claim]

I almost forgot and important point on this.  Never just go off what eBenefits states, doing so can lead to disappointment.  But when you get the decision and it is in black and white, for the most part, this is a solid sign that the VA got something right.

[Found new disability listed in Ebenefits I did not claim]

I have to say that this is a good sign of some things that go on the VA that are good, slap me a good one, yes the VA can at times do right by the Veteran.  Hopefully this will get service connected, there have been some changes in the presumptive conditions for Iraq and places that had burn pits used.  Although, my opinion on this, the VA has a long way to go with the health effects of burn pits and the disabilities they can and will cause, it is a good step in the right direction.

If the evidence is there, and the records support it, the service connection process should be started.  Eventually their MD or your own IMO will make the connection.  The VA knows the regulations surrounding a claim and what it takes to grant, getting them to follow and do what the claimant is entitled to is another matter all together.  

I still say this is a step in the right direction though.  

[Well I am up to smc l and half now smh]

I read you Lima Charlie on that one. Keep after it man.  Don't let them sly away from what you were due when you were due the compensation and benefits.  

With your last comment,  I think they, the VA, has been trying to napalm those books and not being discreet about that either, at least from what it seems.

[Weight-Related Claims Denied ???]

3 hours ago, harry59 said:

My Sleep Specialist did not have a copy of the VA doctor's examination of my OSA because my C&P was after my doctor appointment. I wonder if I should go back to my Sleep Specialist and have her do a DBQ. ???

I think this would be great for you to do, since the doctor is familiar with you and your conditions.  They may not do this but you will not know until you ask but the likelihood is increased if you have a good relationship.  On experience it has been a few of several dozen for me to write a nexus letter.  It can be done.  Just be honest and respectful as always. Courtesy always goes a long way.  JMO

[Bad day at the court. Smh]

Wow nuts!!! That's all I can say. 

[Retroactive Pay - Following new legislation for Presumptive Conditions]

Sweet. Encouraging news and outcome. Congrats GulfWarVet1990.  

[Bad day at the court. Smh]

Say what, what do they mean does not apply, legacy or new AMA process, the law doesn't suddenly change because of a different appeals process.  Whiskey Tango Foxtrot!

[Bad day at the court. Smh]

Hopefully it stays under 38 CFR because you loose a lot of rights and benefit of doubt doctrine under CUE, that is a whole other playing that I would try to avoid playing on, you loose a lot of leverage. You are correct though I did overlook that part and it is important.

This "but will not be earlier than the date of receipt of the supplemental claim." is what is an issue.  If you make the timelines through the appeal process then the effective date should be the earlier, when the original claim was submitted, maybe Im just not processing this correctly.  I think I have more reading and dissecting to do.  

[Bad day at the court. Smh]

36 minutes ago, pacmanx1 said:

I hear what you are saying but, 

I see you post something like this before and say something like we are paving the way for future veterans. IMHO (IN MY HUMBLE OPINION), they will have to fight their own battles and have their own challenges just like we from the GULF WAR ERA VETERANS are fighting our own battles and it seems nothing was ever learned from the VIETNAM WAR ERA VETERANS, EXCEPT BY THE VA FOR DENYING/DELAYING VETERAN’S CLAIMS. No disrespect to the VIETNAM WAR ERA VETERANS because they are still fighting their battles but so are the GULF WAR ERA VETERANS. It is a shame that we have to go through this. Service to our country and fighting wars then having to fight our country for benefits just to barely survive.

The VA is changing the battle grounds and adding new challenges, and the next generation is going to have to learn just like GULF WAR ERA VETERANS. The VA is changing their regulations and the forms to submit claims on. New forms are being created and stating that if a veteran disagrees, he/she must file a particular form. Have you noticed that some regulations state that the effective date will be the date of the newly signed supplemental document? It seems that the VA is trying to make new regulations and forms to get out of paying veterans their correct pay even if the mistake is caused by the VA. A veteran file a claim and the claim is denied and later reopens or file a new claim and evidence is found in reference to the original/old claim, the VA will not retroactively pay the veteran’s correct benefits because the regulation state that it can only go back to the signed supplemental form. It seems that the VARO is not even considering CUE claims or claims based on 38 CFR 3.156, this evidence is ignored. The veteran would have to appeal and request his/her correct effective date.

(2) Supplemental claims received more than one year after notice of decision. Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issues notice of a decision or the Board of Veterans' Appeals issued notice of a decision, the effective date will be fixed in accordance with the date entitlement arose, but will not be earlier than the date of receipt of the supplemental claim.

38 CFR § 3.2500 - Review of decisions. 

38 CFR § 3.2500 - Review of decisions. | CFR | US Law | LII / Legal Information Institute (cornell.edu)

Except as otherwise provided in this section. This statement should read except as otherwise provided by law but the VAROs are ignoring this and causing the veteran to file an appeal to get his/her correct effective date. The veteran can only hope the VARO get his/her rating percentage correct or that would be included in his/her appeal or a completely separate appeal.   

No, I understand your point and you are right.  I made another post on this issue about this new regulation they have put out.  It will literally screw the Veterans pooch with the effective dates.  I personally believe that is why the VA is pushing so hard to get people out of the legacy claims system.  When I read the regulation it sent up flags right from the get go.  

On my opinion on the paving the way. I will expand on that a little.  The proactive Veteran still needs to keep pursuing their claims.  Even with all the laws and regulations, a claimant is going to need to research those that specifically apply to their situation , further, they are going to have get familiar with their medical records and be sure that their IMO's reference those. It is a lot and I mean a lot to try to learn and apply but isn't that the case with everything in life. The proactive part is a must in my opinion. 

I am concerned about effective dates and how these new regulations will apply to new and any legacy claims.  The modernization as the VA calls it, I think is just a different spin on the delay, deny, and hope the Veteran gives up and dies.  Not trying to be crude or anything.  This is just where my brain is when it come to the VA's latest tactics.  

I don't like leaving my livelihood on hopes when it comes to the Veterans Administration, it is never in the Veterans' best interest, at least that is how it appears to be and feels.

"the effective date will be fixed in accordance with the date entitlement arose, but will not be earlier than the date of receipt of the supplemental claim." Since when is the VA known to 

I agree from what I understand all these changes seem to just another smokescreen. Your points are definitely valid. The supplemental claim is a real shiner to the face.

[Bad day at the court. Smh]

I hear ya both on your points.  It is still a long way from where it should be, however, I know in the long run WE, persistent Veterans, will get it done and pave the way for fairer, is that a word, outcomes and end some of the pointless appeals and as Berta would state, if they could only read, "the BVA can read" but it's only sometimes it seems.  Things will get better, slowly but eventually it will be better.  JMO

[Bad day at the court. Smh]

You are correct, there is that BIG difference, at the CAVC it is all about the law, the BVA is to make sure the VA interprets the law and the VA well lets flip a coin, shall we on what they do.  I'm recalling I think I had it explained similarly by AskNOD, I'll have to look back at some conversations or maybe it was in his book, I really can't recall.   Either way your statements are right on point.  

Geesh I hope I don't have to go that route because I am about spent but reading about folks that do pro se at the CAVC man, for me it lites the fire again when I think mine is about to go out.  

 

[Bad day at the court. Smh]

Heh sir, Hang in there you got a lot of positives going on even though the lawyer was useless.  I hate when that happens, IMO a good lawyer is sometimes hard to find, all that I have had in my dealings with VA, Federals Workers Comp were, lets just say less than desirable and I'll leave it that.  

You know your case, you know your claims, you have a pretty good head on the shoulders, and you have at least it appears you very much have your wits about you still.  Hang in there.  You can do this.  The law and regulations will back you and you have the medical evidence to reaffirm your eligibility for benefits. You know your records inside and out.  I know that it is difficult but stay your course and good hunting.  Breathe.

[Evidence gathering stage of TDIU claim]

If its any consolation, Rivet62, for me it can be both, add in a little paranoia and distrust, it can make things interesting that is for certain. I think you are covering all your bases from what you posted.

[Minutes ago we had 400 Guests here at the same time!]

I found this gem accidentally through an ad which I hardly ever click on and I am thankful that I did.  For me I had already gotten a low ball rating from the Veterans Administration of 30%.  I often wonder how much different my outcome would have been had I clicked on that link sooner. I am where I am today in the VA jungle because of our members. IU with SMC S.  I've met so many good people on this forum, so welcoming, so helpful, so honest, blunt at times, but always with the  best intentions in mind, sounds cliché but to me it feels like the brother and sisterhood that I once had when I was in service, much better as a matter of hard facts. Thanks to all that made and make this site possible. Sincerely.  

[HLR Found Duty to Assist Error but still denied my claims]

I gotta comment, well because I just can't help it,   Whether misplacing, records not found, misreading, not acknowledging, altering, cut and pasting, placing a blank sheet over concrete evidence, and altering the copies, shredder-gate, it is all the same game, Delay, Deny, and hope you die",  ooh never mind that sounded better in head than when I wrote it down and read it.  But I hope you get the jest.  My apologies, morbid sense of self, in any case.  That is the game,  "They " have been at it for centuries, or century, I don't know if we have proof going back that far, interesting notion, though, in any case, sadly and truthfully, gotta hate the game.  But that's where, unity, well and when it comes down to it, being battle buddies, born of the same fire, living, sadly, and dying by the swords we helped bare, that is how we will win.   

Im trying to be encouraging and spark that fire in all us, so, please bare with me.  Never mind my attempt at sounding encouraging and somewhat intelligent, bad cliché s and all,  I hope,  in all seriousness, because I am serious, as I can get, that WE continue to change the unjust process. It's slow, but you sure as heck can't say it is not steady in positive change, the race will be won.  I believe this, with all that is left of my mind, heart, and yup even soul, dare I post, as I lost faith somewhere along the way.  Together we will complete the mission.  

[FERS Disability Retirement]

I wanted to add to this a bit.  There are serious tax ramifications if you manage to get a scheduled award while retiring on disability.(OPM)   With FERS, your VA disability benefits won't seriously affect it unless compensation is for the same body part. Then there is a plethora of rules and laws governing that, in short can't get compensated twice for the same body part. 

I think I will post a different thread on what I mentioned in this post,  as I am still looking at the tax laws and regulation governing this issue.  The government will always get their cut, in one fashion or the other it seems.

[Retroactive Pay - Following new legislation for Presumptive Conditions]

Remember while this is great news, please, please, please,  if your claim has the evidence, the treatment and medical records and the doctors opinion relating the injury or disease , don't let the claim die, exhaust all your appellant options, it is one of a few ways to get things changed and get justice not for just generations of past and present but future Brave American Men and Women of this Country who will have served the Armed Forces. 

I think I need to keep repeating that in my head and heed to my own statements, but together is how we will win the fight.   It is a good fight. Let me rephrase, it is a most excellent and noble fight.

Just my honest 2 cents worth.  

[Retroactive Pay - Following new legislation for Presumptive Conditions]

Bronco that is an excellent analysis of the topic on hand.  It does invoke a person to think outside the box, I feel.  The regulations and laws that apply to a Veterans claims are, well can I say countless, as new laws and language can change how disability laws will be interpreted and applied.  Wow, all of this is deep, IMO it makes a person look at things in a different light.  

I am really curious to see how this will affect retroactive benefits, more so effective dates and service connections.  Complications, I think Batman would be speechless on a pun, or would that be Robin,  ha ha I am loosing it.  I make myself chuckle way too much.   Too many voices and personalities, I guess.  To think I got plenty of rest last night and I only have had 1 cup of espresso coffee.  I think I will eat something maybe that will clear the mess up a bit.

[Can I lose benefits if testosterone cures my depression?]

for a second when I read the fighting part Lavish, I got in defensive mode for a few seconds.  But I re read it and got what you meant.  Besides me being silly, if it were me the best advice would be to talk to a hormone specialist that is familiar with your specific hormone footprint.  Is that a thing?  Basically, we all as human beings, male and female, will have customs levels of the T stuff. , add in health issues and age, well that complicates the formula even more, so in my opinion I think a multi provider approach would be necessary to get that within normal ranges for specifically you, and the cookie cutter formula would have to be dismissed.

This again is just from my understanding of human biology and physiology, now, I'm really curious about this, that I need to talk to my hormone specialist to inquire or may be look up some more medical journals, probably both, but that is me.  Ah the research gotta love it.  Everything is research, but alas, at least it keeps the mind active, before going mad that is.  I argue with myself a lot if you haven't noticed.  I do win most of the time, but thinking about it, I don't know if it multiple personalities or a battle between egos,  ID, SID and super ego counts, if I may I feel that it would in my case.

[Retroactive Pay - Following new legislation for Presumptive Conditions]

If you still pursued the claim you should be, you know the drill, NOD, appellant process and so forth.  But that is one point on the new laws with the retroactive date that folks to include my self have pointed to as well.   It seems that they will have to process those in the legacy lane while also granting new claims under the new revised regulations and law.  Then sorting that out later.  My own opinion on the matter is that it will produce a big mess on top of all other issues while these things are hashed out on the hill. Effective date are going to be a big booger.  Still, great ,granting more health issues but I think it's a bandaid of a much larger issue.

[VA Medical Records]

If I may, We are all on the same side, differences in opinions are great, these differences allow us, whether as a whole or in part, to analyze the information and put it to good use.  Each situation while similar in some circumstances to others are not going to yield the same results, human error, will always play a part, the systems will do theirs as well, it is up to us together as a community from all sides to decipher that Sh#!.  I'm not trying to take sides, just trying to diffuse a misunderstanding.  Heated emotions can sometimes cloud the overall goal.  We are stronger united.  That's all that I wanted to convey.