Additional proposed changes to VA rules for mental

[Dustoff1970]

Here are links to information resources for  additional recent proposed  rule changes by VA to their schedule of ratings for mental disorders.        https://www.stripes.com/veterans/2022-02-16/veterans-affairs-disability-rating-system-mental-health-5045624.html

https://www.regulations.gov/document/VA-2022-VBA-0010-0001

Comment period ends on April 18, 2022

Edited February 27, 2022 by Dustoff 11

[ArNG11]

This code, or rather diagnostic code issue has been going on for a while. Longer than what I have had experience with but the jest of fighting it is the same.  The VA is trying to redefine the disabilities impact by changing some diagnostic codes and rating schedules and by redefining the functional scale on which the disability affects the veteran. On the surface I think it would do some good but I am not convinced that it will be great for the large masses.  All in all bottom line is how it affects the Veterans ability to earn and income, to adapt to a normal environment while being hindered by those disabilities and comparing that to a "normal" of a person that does not have disabilities.  Sorry my thoughts are a little scatter brained currently.  I have to re read the proposed changes a few dozen more times without letting any emotional garbage clouding my understanding of the proposed edits if you will.

[Lavish]

On 2/25/2022 at 4:42 PM, Dustoff 11 said:

If you are rated and payed at the 100% level due to TDIU then you cannot work without risk of reduction.  I have over the years heard from reliable sources that vets who are rated 100% scheduler only for a mental disorder run real risk of reduction due to their employment and remember VA decisions reducing vets who work under these circumstances with 100% mental rating.  The present schedule is pretty clear on this for many decades now. My PTSD was briefly reduced in the 80s from 50 to 30% due to my ability to work and infrequent part time work according to VA decision.  So there it is and beware.   I have been 100% P&T TDIU since 1998 with recent SMC S.

No of course not as most know there is no rule says you cannot work with a 100% mental rating but again they can and have reduced vets for working with this rating because they no longer met the scheduler criteria for 100% mental rating. Under proposed new rule this will no longer be the case. 

Dustoff 11, I am rated 100 P&T scheduler for major depression and anxiety and I work full time.   I think they allow the working because medication helps.  If I were not on the medication, I would DEFINITELY be unable to work!

[Lemuel]

Working P&T is no problem.  Even TDIU can work if the employer makes substantial allowances for their disability.  When I was in DC in 1995-1998 a P&T double amputee legs was working at 90 thousand a year in the central Office.  Another P&T brain injury from a diving accident was a DAV VSO.

I was granted TDIU back to 1985 though I made $17,000+ per year part time (above poverty line at the time) from 1987-1990 for a CPA who made allowances for me having to abruptly lay down from enervations or take a couple of weeks off to recuperate if I fought through one.

Edited February 28, 2022 by Lemuel

[Mr cue]

Yea I was told by the vso and dro 2000 I can work with tdiu.

As long as I did make more than the provety level. I think it was 12000 13000.

I have never been able to work but I think there is law on this.

 

[Lavish]

On 2/26/2022 at 1:59 PM, ArNG11 said:

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.

 

On 2/26/2022 at 1:59 PM, ArNG11 said:

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.

 

ArNG11, 

This is my concern as well.  I'm rated 100% for MH and I work a full-time job; however, if it weren't for the meds, I would be a complete basket case.