diabetes Iu

[Railroader]

Current Hearings

Hearing: The Rising Number of Disabled Veterans Deemed

Unemployable: Is the System Failing? A closer look at

VA’s individual unemployability benefit

STATEMENT OF

THE HONORABLE DANIEL L. COOPER

UNDER SECRETARY FOR BENEFITS

DEPARTMENT OF VETERANS AFFAIRS

BEFORE THE

SENATE COMMITTEE ON VETERANS’ AFFAIRS

OCTOBER 27, 2005

Mr. Chairman and members of the Committee: Thank you

for the opportunity to review with you the issue of

Individual Unemployability (IU). I will discuss what

IU is, its history, the criteria used to determine

eligibility, the number of veterans receiving IU

benefits, the May 2005 study by the Inspector General

(IG) of state variances in average annual

compensation, and other issues. I am pleased to be

accompanied by Ms. Renée Szybala, Director of VA’s

Compensation and Pension Service, and Ms. Judith

Caden, Director of VA’s Vocational Rehabilitation and

Employment Service.

What Is IU

Individual Unemployability or IU is the basis on which

the Department of Veterans Affairs pays

service-connected disability compensation at the rate

payable for a 100-percent evaluation to qualified

veterans with combined evaluations that are less than

100 percent. Regional office decision-makers assign

IU ratings when veterans meet minimum combined

evaluation criteria and, in the judgment of the rating

official(s), are unemployable due solely to their

service-connected conditions. In exceptional

circumstances, regional offices may refer cases that

fail to meet the minimum combined evaluation criteria

to the Director of the Compensation and Pension

Service for consideration of an IU rating.

Authority

Section 1155 of title 38, United States Code, charges

the Secretary with responsibility for developing and

applying a disability rating schedule that is based,

“as far as practicable,” upon the average impairments

of earning capacity resulting from service-connected

disabilities. Recognizing that the intent of the

rating schedule is to fairly compensate veterans for

their disabilities to the extent to which they impair

earning capacity of the average veteran, the schedule

none-the-less cannot always adequately compensate an

individual veteran in his or her particular

circumstance. To address the inevitable situations

where the schedule does not adequately address a

particular fact pattern, the schedule adopted by the

Secretary provides both IU and extra-schedular

provisions.

Brief History of IU

In 1925, the Schedule for Rating Disabilities provided

the first definition of total disability. Total

disability was defined as an impairment of mind or

body that is sufficient to render it impossible for

the average person to follow a substantially gainful

occupation.

In 1934, total disability was expanded to provide that

total disability ratings may be assigned without

regard to the specific provisions of the rating

schedule when the veteran is, in the judgment of the

rating agency, unable to follow a substantially

gainful occupation as a result of the veteran’s

disabilities. To be eligible for consideration for IU

benefits, the schedule required that a veteran have a

single 70 percent evaluation or, if the veteran had

multiple service-connected conditions, that the

minimum combined evaluation be 80 percent with at

least one disability considered 60 percent disabling.

In 1941, the minimum requirements for consideration

for IU entitlement were revised to today’s standard of

60 percent for a single disability or a combined 70

percent evaluation with at least one 40 percent

disability.

Throughout the rating schedule, a 60 percent

evaluation or higher reflects significant disability.

A 40 percent evaluation assigned to a condition

generally reflects a serious handicap. Therefore,

when multiple service-connected conditions are

involved, the higher 70 percent minimum combined

evaluation is reasonable to allow for the interplay of

multiple disabilities.

The 1945 rating schedule established that age was not

to be considered a factor in evaluating

service-connected disability, and that entitlement to

IU could not be based on advancing age or additional

non-service-connected disability.

Under VA regulations, if a veteran’s earned income

does not exceed the amount established by the U.S.

Department of Commerce, Bureau of the Census, as the

poverty threshold for one person, currently $9,570,

the veteran is only marginally employed, and marginal

employment does not qualify as substantially gainful

employment. Also, the U.S. Court of Appeals for

Veterans Claims held in Faust v. West that employment

that provides annual income exceeding the poverty

threshold for one person, irrespective of the number

of hours or days actually worked and without regard to

the veteran’s annual earned income prior to the award

of the IU rating, constitutes "actual employability."

Number of IU Beneficiaries

The number of veterans rated totally disabled based on

IU has more than doubled in the past six years from

97,275 veterans in 1999 to over 221,000 veterans

today.

There is no single clear explanation for the increase

in IU ratings over the last six years. However, the

rise has occurred concurrent with other significant

changes. Since September 30, 1999, the number of

veterans receiving compensation has increased from

2,252,980 to 2,636,979 at the end of fiscal year 2005.

This increase of 383,999 veterans represents a 17

percent rise in the number of veterans receiving

compensation. There has also been an increase in the

average combined disability evaluation over the same

period. At the end of 1999, 57 percent of all

veterans receiving compensation had combined

evaluations of 30 percent or less. Today it is 46

percent. The percent of veterans with combined

evaluations of 60 percent disability or more has

increased from 17 percent at the end of 1999 to the

current 29 percent. An interplay of 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, account for a substantial portion of the

increase.

Recent court decisions have also had an impact on IU

ratings. For example, in 1999, the U.S. Court of

Appeals for Veterans Claims in Norris v. West held

that VA must infer a claim for IU if the veteran files

a claim for increased disability, meets the schedular

minimum combined evaluation criteria, and there is

evidence of inability to engage in substantially

gainful employment due to service-connected

disability.

Interplay with Vocational Rehabilitation and

Employment (VR&E)

In its September 1987 report, “Improving the Integrity

of VA’s Unemployability Compensation Program,” the

then General Accounting Office (GAO) recommended that

VA revise its regulations to require that all veterans

applying for a total disability rating based on IU be

referred for a vocational rehabilitation evaluation.

VA does not currently require an employment assessment

by VR&E program staff as part of the IU entitlement

determination. If the Secretary decided to require an

employment assessment in connection with determining a

veteran’s entitlement to IU, VA would first promulgate

regulations defining the scope, purpose, and criteria

for conducting such an assessment, and the manner in

which VA would implement such assessments.

A veteran’s participation in a program of

rehabilitation, education, or training does not

preclude a total disability rating based on IU.

Veterans with compensable service-connected

disabilities, including those with IU ratings, may be

entitled to receive vocational rehabilitation benefits

under the VR&E program (chapter 31, title 38, United

States Code). VA also may not deny a veteran’s IU

claim on the basis that he or she is participating in

a Veterans Health Administration (VHA) program of

therapeutic and rehabilitative services, or consider

therapeutic and rehabilitative activities as evidence

of a veteran’s ability to secure or follow a

substantially gainful occupation. Our regulations

allow a veteran receiving IU benefits to work 12

consecutive months in substantially gainful employment

before any change is made in the IU determination.

Additional Benefits

A total disability rating based on IU can result in

eligibility for additional benefits for a veteran’s

dependents and survivors. Educational benefits for

the veteran’s spouse and eligible children are

available under the Survivors’ and Dependents’

Educational Assistance Program (title 38, United

States Code, Chapter 35). The Civilian Health and

Medical Program of the Department of Veterans Affairs

(CHAMPVA) provides reimbursement to eligible

dependents for most medical expenses, provided that

they are not also eligible for health care benefits

provided by the Department of Defense. To be eligible

for both of these benefits, the veteran’s IU

determination must be considered permanent.

Permanency for eligibility to Chapter 35 and CHAMPVA

requires that there not be a future examination

scheduled.

Application Process

In most cases, to be considered for IU benefits, a

veteran must apply. However, in the Norris case

mentioned earlier, the court held that a veteran need

not apply for IU for a claim for IU to be inferred.

Thus, VA is required to consider the issue in certain

circumstances, even if the veteran did not explicitly

apply for an IU rating. Recent guidance to the field

directed that, once an IU claim is inferred, an

application must be sent to the veteran for completion

in order to obtain the essential information requested

on the application form. The form asks the veteran to

furnish an employment history for the five-year period

preceding the date on which the veteran became

unemployable, as well as from that date to the date of

application.

As part of the development of IU claims, field

stations are also required to solicit information from

each employer during the 12-month period preceding the

date the veteran last worked. The employer is asked

to provide information concerning the veteran’s

employment history including the date of employment,

the type of work performed, and if the veteran is not

currently working, the reasons for termination of

employment.

Role of the Medical Examiner

If the rating official determines that a medical

examination is necessary to determine whether a

veteran is entitled to a total disability rating based

on IU, an appropriate examination or opinion request

is submitted to a VHA medical facility or our contract

examination provider.

Medical examiners follow the appropriate worksheets to

perform a complete and adequate examination for rating

purposes, answering all questions and providing

opinions as requested. A diagnosis is to be provided

for every condition listed on the examination request.

The medical examiner should describe the disability’s

effect on the veteran’s daily activities and ability

to work. For IU claims, the examiner should also

obtain the veteran’s occupational history (i.e., type

of occupation, employment dates, wages for last 12

months, and detail any time that was lost from work in

past 12-month period).

Continued IU Eligibility

Once a veteran is awarded IU benefits and until he or

she attains age 70, the veteran is required to submit

an annual employment certification. This procedure

was resumed in September after having been suspended

for approximately six years. The veteran must list

all employment for the preceding 12-month period. VA

uses the certification to verify continued entitlement

to IU benefits. Failure to return the form will cause

VA to send the veteran a contemporaneous notice of

reduction of the monthly benefit payment to the rate

justified by the underlying rating.

VA may schedule a reexamination for any veteran when

VA determines there is a need to verify the continued

existence or current severity of a disability.

Generally, VA requires reexamination if it is likely

that a disability has improved or if evidence

indicates that a disability has materially changed or

that the current rating may be incorrect. Periodic

future examinations are not requested if the

disability is unlikely to improve, if symptoms have

persisted without material improvement for a period of

five or more years, where the disability is permanent

in character, or in cases where the veteran is age 55

or older. After a veteran has received compensation

at any level of disability for 20 years, to include

total disability benefits based on IU, that

compensation rate is protected.

Veterans receiving IU benefits are subject to VA’s

annual income verification match (IVM). The IVM uses

Internal Revenue Service (IRS) and Social Security

Administration (SSA) income records to verify that IU

beneficiaries remain below the earnings threshold for

entitlement to IU benefits.

Reviews of VA Claims Processing Related to IU

Former Secretary Anthony J. Principi, in response to

media articles about state-to-state variance in

average compensation payments to veterans, requested

that the VA Inspector General (IG) study the payment

variance issue. The IG found that payment variance

was affected by several factors including demographic

factors and representation by veterans service

organizations, as well as the incidence of PTSD and

the subsequent award of IU benefits for that

condition.

The Government Accountability Office (GAO) also issued

a report in 2004 pointing to a need for increased

analysis of the consistency of decision-making across

regional offices. GAO is currently conducting a study

of IU benefit decision-making.

Based on the preliminary findings from these reviews,

as well as a significant increase in the number of IU

case referrals received in the latest IVM with IRS and

SSA, we have been analyzing our existing IU procedures

and regulations to determine if changes are needed.

As discussed earlier, we have reinstated the annual

employment certification for veterans receiving IU

benefits. We have also reinforced existing procedural

and evidentiary guidelines for IU determinations

through conference calls with our field stations and

at our recent Veterans Service Center Managers

Conference. We will continue to work to provide

additional training for our employees, and to identify

ways to strengthen and clarify our long-standing

procedural requirements and ensure the integrity of

this important benefit.

The IU benefit has a long history. It fills a

critical gap when the rating schedule fails to fully

address the impact of disability in a specific

veteran’s circumstance. We believe that during this

period of conflict and danger for our country, IU

continues to be an essential tool in serving America’s

veterans and fulfilling the country’s commitment to

them. We at VBA are fully cognizant of this as we

work to ensure those who have served this nation are

fully compensated for their injuries and assisted in

returning to participation in society to the maximum

extent possible permitted by their injuries.

Thank you for this opportunity to discuss this

important benefit. I would be pleased to address any

questions you may have.

[jimlane1949]

Current Hearings

Hearing: The Rising Number of Disabled Veterans Deemed

Unemployable: Is the System Failing? A closer look at

VA’s individual unemployability benefit

STATEMENT OF

THE HONORABLE DANIEL L. COOPER

UNDER SECRETARY FOR BENEFITS

DEPARTMENT OF VETERANS AFFAIRS

BEFORE THE

SENATE COMMITTEE ON VETERANS’ AFFAIRS

OCTOBER 27, 2005

Mr. Chairman and members of the Committee: Thank you

for the opportunity to review with you the issue of

Individual Unemployability (IU). I will discuss what

IU is, its history, the criteria used to determine

eligibility, the number of veterans receiving IU

benefits, the May 2005 study by the Inspector General

(IG) of state variances in average annual

compensation, and other issues. I am pleased to be

accompanied by Ms. Renée Szybala, Director of VA’s

Compensation and Pension Service, and Ms. Judith

Caden, Director of VA’s Vocational Rehabilitation and

Employment Service.

What Is IU

Individual Unemployability or IU is the basis on which

the Department of Veterans Affairs pays

service-connected disability compensation at the rate

payable for a 100-percent evaluation to qualified

veterans with combined evaluations that are less than

100 percent. Regional office decision-makers assign

IU ratings when veterans meet minimum combined

evaluation criteria and, in the judgment of the rating

official(s), are unemployable due solely to their

service-connected conditions. In exceptional

circumstances, regional offices may refer cases that

fail to meet the minimum combined evaluation criteria

to the Director of the Compensation and Pension

Service for consideration of an IU rating.

Authority

Section 1155 of title 38, United States Code, charges

the Secretary with responsibility for developing and

applying a disability rating schedule that is based,

“as far as practicable,” upon the average impairments

of earning capacity resulting from service-connected

disabilities. Recognizing that the intent of the

rating schedule is to fairly compensate veterans for

their disabilities to the extent to which they impair

earning capacity of the average veteran, the schedule

none-the-less cannot always adequately compensate an

individual veteran in his or her particular

circumstance. To address the inevitable situations

where the schedule does not adequately address a

particular fact pattern, the schedule adopted by the

Secretary provides both IU and extra-schedular

provisions.

Brief History of IU

In 1925, the Schedule for Rating Disabilities provided

the first definition of total disability. Total

disability was defined as an impairment of mind or

body that is sufficient to render it impossible for

the average person to follow a substantially gainful

occupation.

In 1934, total disability was expanded to provide that

total disability ratings may be assigned without

regard to the specific provisions of the rating

schedule when the veteran is, in the judgment of the

rating agency, unable to follow a substantially

gainful occupation as a result of the veteran’s

disabilities. To be eligible for consideration for IU

benefits, the schedule required that a veteran have a

single 70 percent evaluation or, if the veteran had

multiple service-connected conditions, that the

minimum combined evaluation be 80 percent with at

least one disability considered 60 percent disabling.

In 1941, the minimum requirements for consideration

for IU entitlement were revised to today’s standard of

60 percent for a single disability or a combined 70

percent evaluation with at least one 40 percent

disability.

Throughout the rating schedule, a 60 percent

evaluation or higher reflects significant disability.

A 40 percent evaluation assigned to a condition

generally reflects a serious handicap. Therefore,

when multiple service-connected conditions are

involved, the higher 70 percent minimum combined

evaluation is reasonable to allow for the interplay of

multiple disabilities.

The 1945 rating schedule established that age was not

to be considered a factor in evaluating

service-connected disability, and that entitlement to

IU could not be based on advancing age or additional

non-service-connected disability.

Under VA regulations, if a veteran’s earned income

does not exceed the amount established by the U.S.

Department of Commerce, Bureau of the Census, as the

poverty threshold for one person, currently $9,570,

the veteran is only marginally employed, and marginal

employment does not qualify as substantially gainful

employment. Also, the U.S. Court of Appeals for

Veterans Claims held in Faust v. West that employment

that provides annual income exceeding the poverty

threshold for one person, irrespective of the number

of hours or days actually worked and without regard to

the veteran’s annual earned income prior to the award

of the IU rating, constitutes "actual employability."

Number of IU Beneficiaries

The number of veterans rated totally disabled based on

IU has more than doubled in the past six years from

97,275 veterans in 1999 to over 221,000 veterans

today.

There is no single clear explanation for the increase

in IU ratings over the last six years. However, the

rise has occurred concurrent with other significant

changes. Since September 30, 1999, the number of

veterans receiving compensation has increased from

2,252,980 to 2,636,979 at the end of fiscal year 2005.

This increase of 383,999 veterans represents a 17

percent rise in the number of veterans receiving

compensation. There has also been an increase in the

average combined disability evaluation over the same

period. At the end of 1999, 57 percent of all

veterans receiving compensation had combined

evaluations of 30 percent or less. Today it is 46

percent. The percent of veterans with combined

evaluations of 60 percent disability or more has

increased from 17 percent at the end of 1999 to the

current 29 percent. An interplay of 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, account for a substantial portion of the

increase.

Recent court decisions have also had an impact on IU

ratings. For example, in 1999, the U.S. Court of

Appeals for Veterans Claims in Norris v. West held

that VA must infer a claim for IU if the veteran files

a claim for increased disability, meets the schedular

minimum combined evaluation criteria, and there is

evidence of inability to engage in substantially

gainful employment due to service-connected

disability.

Interplay with Vocational Rehabilitation and

Employment (VR&E)

In its September 1987 report, “Improving the Integrity

of VA’s Unemployability Compensation Program,” the

then General Accounting Office (GAO) recommended that

VA revise its regulations to require that all veterans

applying for a total disability rating based on IU be

referred for a vocational rehabilitation evaluation.

VA does not currently require an employment assessment

by VR&E program staff as part of the IU entitlement

determination. If the Secretary decided to require an

employment assessment in connection with determining a

veteran’s entitlement to IU, VA would first promulgate

regulations defining the scope, purpose, and criteria

for conducting such an assessment, and the manner in

which VA would implement such assessments.

A veteran’s participation in a program of

rehabilitation, education, or training does not

preclude a total disability rating based on IU.

Veterans with compensable service-connected

disabilities, including those with IU ratings, may be

entitled to receive vocational rehabilitation benefits

under the VR&E program (chapter 31, title 38, United

States Code). VA also may not deny a veteran’s IU

claim on the basis that he or she is participating in

a Veterans Health Administration (VHA) program of

therapeutic and rehabilitative services, or consider

therapeutic and rehabilitative activities as evidence

of a veteran’s ability to secure or follow a

substantially gainful occupation. Our regulations

allow a veteran receiving IU benefits to work 12

consecutive months in substantially gainful employment

before any change is made in the IU determination.

Additional Benefits

A total disability rating based on IU can result in

eligibility for additional benefits for a veteran’s

dependents and survivors. Educational benefits for

the veteran’s spouse and eligible children are

available under the Survivors’ and Dependents’

Educational Assistance Program (title 38, United

States Code, Chapter 35). The Civilian Health and

Medical Program of the Department of Veterans Affairs

(CHAMPVA) provides reimbursement to eligible

dependents for most medical expenses, provided that

they are not also eligible for health care benefits

provided by the Department of Defense. To be eligible

for both of these benefits, the veteran’s IU

determination must be considered permanent.

Permanency for eligibility to Chapter 35 and CHAMPVA

requires that there not be a future examination

scheduled.

Application Process

In most cases, to be considered for IU benefits, a

veteran must apply. However, in the Norris case

mentioned earlier, the court held that a veteran need

not apply for IU for a claim for IU to be inferred.

Thus, VA is required to consider the issue in certain

circumstances, even if the veteran did not explicitly

apply for an IU rating. Recent guidance to the field

directed that, once an IU claim is inferred, an

application must be sent to the veteran for completion

in order to obtain the essential information requested

on the application form. The form asks the veteran to

furnish an employment history for the five-year period

preceding the date on which the veteran became

unemployable, as well as from that date to the date of

application.

As part of the development of IU claims, field

stations are also required to solicit information from

each employer during the 12-month period preceding the

date the veteran last worked. The employer is asked

to provide information concerning the veteran’s

employment history including the date of employment,

the type of work performed, and if the veteran is not

currently working, the reasons for termination of

employment.

Role of the Medical Examiner

If the rating official determines that a medical

examination is necessary to determine whether a

veteran is entitled to a total disability rating based

on IU, an appropriate examination or opinion request

is submitted to a VHA medical facility or our contract

examination provider.

Medical examiners follow the appropriate worksheets to

perform a complete and adequate examination for rating

purposes, answering all questions and providing

opinions as requested. A diagnosis is to be provided

for every condition listed on the examination request.

The medical examiner should describe the disability’s

effect on the veteran’s daily activities and ability

to work. For IU claims, the examiner should also

obtain the veteran’s occupational history (i.e., type

of occupation, employment dates, wages for last 12

months, and detail any time that was lost from work in

past 12-month period).

Continued IU Eligibility

Once a veteran is awarded IU benefits and until he or

she attains age 70, the veteran is required to submit

an annual employment certification. This procedure

was resumed in September after having been suspended

for approximately six years. The veteran must list

all employment for the preceding 12-month period. VA

uses the certification to verify continued entitlement

to IU benefits. Failure to return the form will cause

VA to send the veteran a contemporaneous notice of

reduction of the monthly benefit payment to the rate

justified by the underlying rating.

VA may schedule a reexamination for any veteran when

VA determines there is a need to verify the continued

existence or current severity of a disability.

Generally, VA requires reexamination if it is likely

that a disability has improved or if evidence

indicates that a disability has materially changed or

that the current rating may be incorrect. Periodic

future examinations are not requested if the

disability is unlikely to improve, if symptoms have

persisted without material improvement for a period of

five or more years, where the disability is permanent

in character, or in cases where the veteran is age 55

or older. After a veteran has received compensation

at any level of disability for 20 years, to include

total disability benefits based on IU, that

compensation rate is protected.

Veterans receiving IU benefits are subject to VA’s

annual income verification match (IVM). The IVM uses

Internal Revenue Service (IRS) and Social Security

Administration (SSA) income records to verify that IU

beneficiaries remain below the earnings threshold for

entitlement to IU benefits.

Reviews of VA Claims Processing Related to IU

Former Secretary Anthony J. Principi, in response to

media articles about state-to-state variance in

average compensation payments to veterans, requested

that the VA Inspector General (IG) study the payment

variance issue. The IG found that payment variance

was affected by several factors including demographic

factors and representation by veterans service

organizations, as well as the incidence of PTSD and

the subsequent award of IU benefits for that

condition.

The Government Accountability Office (GAO) also issued

a report in 2004 pointing to a need for increased

analysis of the consistency of decision-making across

regional offices. GAO is currently conducting a study

of IU benefit decision-making.

Based on the preliminary findings from these reviews,

as well as a significant increase in the number of IU

case referrals received in the latest IVM with IRS and

SSA, we have been analyzing our existing IU procedures

and regulations to determine if changes are needed.

As discussed earlier, we have reinstated the annual

employment certification for veterans receiving IU

benefits. We have also reinforced existing procedural

and evidentiary guidelines for IU determinations

through conference calls with our field stations and

at our recent Veterans Service Center Managers

Conference. We will continue to work to provide

additional training for our employees, and to identify

ways to strengthen and clarify our long-standing

procedural requirements and ensure the integrity of

this important benefit.

The IU benefit has a long history. It fills a

critical gap when the rating schedule fails to fully

address the impact of disability in a specific

veteran’s circumstance. We believe that during this

period of conflict and danger for our country, IU

continues to be an essential tool in serving America’s

veterans and fulfilling the country’s commitment to

them. We at VBA are fully cognizant of this as we

work to ensure those who have served this nation are

fully compensated for their injuries and assisted in

returning to participation in society to the maximum

extent possible permitted by their injuries.

Thank you for this opportunity to discuss this

important benefit. I would be pleased to address any

questions you may have.

What if a person is IU T&P?

[Jay Johnson]

>>>>Additional Benefits

A total disability rating based on IU can result in

eligibility for additional benefits for a veteran’s

dependents and survivors. Educational benefits for

the veteran’s spouse and eligible children are

available under the Survivors’ and Dependents’

Educational Assistance Program (title 38, United

States Code, Chapter 35). The Civilian Health and

Medical Program of the Department of Veterans Affairs

(CHAMPVA) provides reimbursement to eligible

dependents for most medical expenses, provided that

they are not also eligible for health care benefits

provided by the Department of Defense. To be eligible

for both of these benefits, the veteran’s IU

determination must be considered permanent.

Permanency for eligibility to Chapter 35 and CHAMPVA

requires that there not be a future examination

scheduled.<<<<<<

Very interesting...I'll be sending this nice little quote over to the RO for my CUE and appeal on a future exam scheduled despite my wife being P&T.