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

[Marine Corp 69/70]

Under the VA M21 for Sleep Apnea, states the required use of a CPAP machine from a Doctor. But for rating Purposes you don’t need to use the (CPAP MACHINE) to get a 50% RATING check it out.

[ArNG11]

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.

[ArNG11]

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]

[Lemuel]

This looks like it bodes well for my upcoming April 1, 2022, BVA hearing that involves a "next of friend" 1994 claim for TBI and other organic brain syndromes under Section 4 of the 14th Amendment and the 5th Amendment, guaranteeing U S Debt especially to veterans and back pay being paid in current dollars based upon the Gold Standard was in force when those Amendments were added to the Constitution.  Will let you know how it turns out as I receive an impression and then as I receive the Decision.

[ArNG11]

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.

[Lemuel]

Thanks, ArNG11, for the Post.  This will help me a lot at my hearing or in my prehearing brief.  The Neurocognitive diagnosis of "anosognosia" has almost always if not always, been missed by C&P examiners, especially since using NPs to do the exams.  My neurobehavioral testing indicates the definition of anosognosia in 1985 without the diagnosis or treatment specifically directed towards the condition.  It was not until I read the May 1995 Discover Magazine cover article in 1996, that I realized that my "adjustment disorder" was because of my TBI and that I was not helped at all in understanding the condition or how to address it.  Without a clear diagnosis, and if you are focusing on behavioral psych conditions like PTSD, you will never make any headway on either front.

My remand by the BVA to the Director of Compensation may have simulated some results in 2017 although I have received nothing so far to indicate that other than TDIU extended from the award by the BVA at 2009 back to 09/15/1985.

This is a great post by you.  It is going to help me a lot.