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NDAA Requires DoD to Use VASRD Criteria

maparker

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The NDAA has a provision that clearly requires DoD to rate per ther VASRD. While I am concerned about the "to the extent feasible" clause, I think para(B) shoud ease my fears. Jason, your thoughts?

Mike

SEC. 1642. REQUIREMENTS AND LIMITATIONS ON DEPARTMENT OF DEFENSE DETERMINATIONS OF DISABILITY WITH RESPECT TO MEMBERS OF THE ARMED FORCES.

(a) IN GENERAL.—Chapter 61 of title 10, United States Code, is amended by inserting after section 1216 the following new section:

§ 1216a. Determinations of disability: requirements and limitations on determinations

‘‘(a) UTILIZATION OF VA SCHEDULE FOR RATING DISABILITIES IN DETERMINATIONS OF DISABILITY.—

(1) in making a determination of disability of a member of the armed forces for purposes of this chapter, the Secretary concerned—

‘‘(A) shall, to the extent feasible, utilize the schedule for rating disabilities in use by the Department of Veterans Affairs, including any applicable
interpretations of the schedule by the United States Court of Appeals for Veterans Claims; and

‘‘(B) except as provided in paragraph (2), may not deviate from the schedule or any such interpretation of the schedule.

‘‘(2) In making a determination described in paragraph (1), the Secretary concerned may utilize in lieu of the schedule described in that paragraph such criteria as the Secretary of Defense and the Secretary of Veterans
Affairs may jointly prescribe for purposes of this subsection if the utilization of such criteria will result in a determination of a greater percentage of disability than would be otherwise determined through the utilization of the schedule.
 

Jason Perry

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This is a great step forward. However, there may remain some wiggle room for DOD to still limit application of the entire body of law that is binding on the VA.

My question is, how will the Court of Federal Claims react if the DOD ignores VA Gen. Counsel Precedential Opinions? The VA Gen. Counsel Opinions are binding on all VA officials and in adjudications/hearings. And they contain important rules that aid in higher ratings at the VA. The argument that could be made is that these opinions are not binding on the DOD and therefore should be excluded from being enforced under the NDAA and Sec. 1642. If the DOD makes a reasonable interpretation that these opinions don't apply, (which would be the standard of review at the Court of Federal Claims) then there may still be deviation from the general body of law applicable to the VA. It is impossible to know if DOD will take this position, but it is worth thinking about.

Logistically, I am also curious how this plays out at the board level. Department of the Navy, in SECNAVINST 1850.4E, 4-16, calls for a Counsel for the Board position, but the other services have no such dedicated legal counsel. So, I think there may have to be some adjustment to have available legal advice to the PEB in a much broader scope than exists now. On the part of assigned military counsel for Servicemembers, this will significantly broaden their duties to research relevant Court of Appeals for Vet. Claims case law. Currently, there is very little research conducted as the default rule is that reasonable agency (DOD component) determinations are binding, so most of the research is in the regulations. So, this will neccesitate a broader experience/training for assigned counsel on these issues, plus make the time spent on each case go up. In a discussion I had with one of the PEB Presidents, he told me that his "choke point" for moving cases was the availability of legal counsel for the Servicemember, followed by number of medical members he has. I could see the effect of this being to slow processing of cases, unless they plus up the number of counsel they assign to the PEBs.

Notice an interesting thing. The COurt of Vet. Appeals decisions are binding on the DOD, but that Court has no jurisdiction to hear DOD cases. What we may end up with as well is a problem with Court of Federal Claims interpreting the DOD's interpretation of Court of Vet. Appeals cases. I am not sure this is the best solution, and perhaps given the relatively low number of PEB cases compared to Veteran's Claims, maybe the better course would have been to extend Court of Vet. App. jurisdiction to the PEB cases. Then you would help insure uniformity.

Still, I think this law is a great step forward and gives another arrow in the quiver to get a good result. If this comes to pass, watch for a great number of issues early as they implement this law.
 

maparker

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It will come to pass for sure. Its is a done deal. Unless the president veto's the entire NDAA.

DoD and the VA have lanched their joint disability evaluation system pilot program for those MEBed in the DC area. This has the VA rating the conditions the Services find unfitting so this may all be moot if it comes to pass that the VA does DoD 's ratings across the board.

If the VA General Counsel opinions are rolled into VASRD, won't they become mandatory at that point?

Mike
 

Jason Perry

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No, VA Gen. Counsel opinions are just that, legal opinions that bind the actions of all VA employees, including the Board of Veteran's Appeals. So, anything that deviates from Gen Counsel Precedential Opinions will be raised in Court of Vet. App. cases if the VA deviates from them. But they are only binding on the VA personnel, not the DOD. That is how DOD would (probably reasonably) argue this one, not saying for sure they do take that position. They could also say, "well, Congress has spoken on this, let's leave it be." Remains to be seen.

What is really fascinating is that the VA Gen. Counsel opinions are binding on all VA officials. So, if they are performing the DOD rating decisions under the pilot program, my argument would be that they are bound to use the Precedential opinions in those rating decisions (bc they are VA officials). I also wonder how the VA rating officials under the pilot program will do with getting the eight year rule right, in EPTS cases. Seems to me you could have problems resolving this, you could plausibly still end up with two ratings, depending how they resolve this.

Another unanswered question that the pilot program raises. Now that VA is doing rating decisions under pilot program, this may open up jurisdiction to Court of Vet Appeals. They may have inadvertently created jurisdiction for those cases!! I will do some research on this point, but it is a possibility.
 

maparker

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Jason,

If the BVA, CAVA or the VA General Counsel makes a ruling and that ruling is later incorporated into the rating criteria of an updated VASRD, does not that become binding on those required to follow the criteria of the VASRD? Deluca criteria is now provisions in the VASRD, for example.

It is anticipated that a SM in the pilot will challenge ratings up to including CAVA and that a ruling results in a higher ratings it will be binding on DoD. The questioin is if the service member will have to go to a BCMR to get it fixed or if there will be some automatic process.

One problem that has surfaced is that DoD has stated they will not honor VA's presumption of service connection for hereditary conditions. This will blow up the first case when VA Service connects and rates a condition and DoD denies benefits and separates w/o benefits. Congress has stated they want DoD to use the VA presumption standards.

Mike
 

Jason Perry

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You hit it on the head, "if incorporated into the VASRD." If I were a Litigation Division attorney (for the government), I would probably argue that until incorporated, these opinions only bind VA, not DOD rating. The VA realizes it is bound by these decisions, so their failure to follow them only comes up in VA appeals in the context of a claim the VA failed to follow them. So, there is no real issue that it applies and the Court of Appeals for Vet Claims has not had to deal with this as a question. If they do in fact find that they have jurisdiction over DOD related issues (a question which the Court itself must satisfy itself it has), I forsee this as a question that must be litigated: "To what extent are DOD officials bound by BVA decisions, VA Gen Counsel Precedent, and other provisions of 38 CFR?" I can see arguments for both sides, and I am not sure it will all come down in favor of the Servicemember/Veteran. A lot will depend on how the implementing regulations read.


There are a ton of great arguments to explore here (is the DOD covered under some sort of agency theory (acting under the direction of the VA), are there multiple bites at the apple (appeal only to CAVC, Court of Federal Claims, or both) and if so, is litigation against VA or DOD that results in a ruling in one context, binding on the US Gov. generally, is ABCMR now an administrative appeal available to those improperly rated by the VA? As to multiple courts available, I see nothing that would change the jurisdiction under Tucker Act/Military Pay Act analysis, which will probably have different issues than an appeal to CAVC.

You are dead on, the first case that DOD does not honor the hereditary conditions presumption will be a real test of how this will work.

Another issue I see, using normal rules of statutory construction and absent a statement to the contrary, this should only apply to present and future cases. BUT, once you add in the review for those separated since 2001 with less than 30%, well there may be a huge number of cases out there that will benefit. This also makes it worthwhile for anyone who can point to an error to try for a new board (on remand) to get the benefit of this new law.

It will be very interesting to see how this plays out. If they don't get on some implementing regulations soon, there could be some built in issue for appeal and or delays in processing cases.
 

Jason Perry

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It appears doubtful that unless Servicemembers are permitted to appeal to BVA, that the US Court of Appeals for Veterans Claims will have any jurisdiction to hear appeals:

"38 USCS § 7252
§ 7252. Jurisdiction; finality of decisions

(a) The Court of Appeals for Veterans Claim shall have exclusive jurisdiction to review decisions of the Board of Veterans' Appeals. The Secretary may not seek review of any such decision. The Court shall have power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate.

(b) Review in the Court shall be on the record of proceedings before the Secretary and the Board. The extent of the review shall be limited to the scope provided in section 7261 of this title [38 USCS § 7261]. The Court may not review the schedule of ratings for disabilities adopted under section 1155 of this title [38 USCS § 1155] or any action of the Secretary in adopting or revising that schedule.

(c) Decisions by the Court are subject to review as provided in section 7292 of this title [38 USCS § 7292]

38 USCS § 7252"

This sets up a troublesome question...If CAVC has exclusive jurisdiction on BVA appeals, and Servicemembers are supposed to go that route (an assumption at this point, one I am not sure is a safe one) then it follows that this may deprive the Court of Federal Claims jurisdiction to review any decision. This would be a HUGE change to existing law.

Have to wait and see how this plays out.
 

Jason Perry

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‘‘(2) In making a determination described in paragraph (1), the Secretary concerned may utilize in lieu of the schedule described in that paragraph such criteria as the Secretary of Defense and the Secretary of Veterans
Affairs may jointly prescribe for purposes of this subsection if the utilization of such criteria will result in a determination of a greater percentage of disability than would be otherwise determined through the utilization of the schedule.

In looking at this, it seems that if they do implement some sort of "alternate criteria," if the Servicemember/Veteran has a VA rating in hand, he has a much stronger case for getting relief than he does now. How would you prove that you would do better under the VASRD? Nothing is better than to show a recent to discharge VA rating that is higher. Under current system, DOD can skate around this for all kinds of reason. But I think this language gives a separate point to raise on appeal.
 

maparker

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Jason,

I think what this provision is saying is that if DoD wants to give a rating that is higher than provided for in the VASRD, then they can work something out with the VA Secretary for an exception to the VASRD be used by PEBs but only if it gives a higher rating.

Mike
 

Jason Perry

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Mike,

Right, that may be the intent from Congress, but experience shows that in the implementation, DOD has a tendency to lowball as compared to VA. What I think this does it gives an absolute floor to what can be rated (that is the standard VASRD). And the best evidence of the minimum acceptable rating is from an actual rating showing a higher rating.

What I mean is that you could likely attack the underlying use of such alternate criteria and use that to try to get a re-hearing, if not outright award of the higher rating.

I am not sure, from a statutory drafting point of view, why you would include this language in the first place. If something results in a higher rating, you can't sue on it anyway (there is no damage done). But the use of the conditional language ("if it results in a higher rating") builds in an issue to fight. I am also, given the historical performance of DOD, having a hard time envisioning what they are talking about. Increase in individual ratings for diagnostic codes? A floor for ratings for certain conditions?

What I am suspicious of is them unrolling a "new and improved rating system." And then lowballing Servicemembers.
 

maparker

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But doesn't the Sec VA have to approve any mods to the rating criteria?

Mike
 

Jason Perry

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VA Secy and SECDEF would have to approve. But that wouldn't insulate it from attack.
 
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