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CBJC’s Veterans Assistance Project Responds to the VA’s Proposed Changes to Mental Health Evaluations

by CBJC Staff June 7, 2022

The author of this article is Lexy Merlot Ginsberg. She is the 2022 Pro Bono Scholar for the City Bar Justice Center’s Veterans Assistance Project.

As of March 31, 2022, nearly 5.3 million veterans were receiving payments from the United States Department of Veterans Affairs (the “VA”) for their service-connected disabilities. Each year, millions of veterans rely on VA benefits for access to vital medical care and essential resources.

The VA employs medical exams known as Compensation and Pension examinations (“C&P exams”) to gather evidence on a veteran’s claimed condition before issuing a decision and assigning a disability “rating” based on the veteran’s level of physical and mental impairment. The more advanced the level of impairment, the higher the rating and, thus, the higher the monthly benefit amount. The VA is expected to make reasonable efforts to help veterans obtain evidence to substantiate their claims.

On April 18, 2022, the City Bar Justice Center’s Veterans Assistance Project (VAP) published a comment in response to the VA’s Proposed Rule 2900-AQ82, a proposal to adjust the VA’s rating schedule which, in part, would pose challenges for veterans in substantiating their mental health-related claims.

In response to the proposed rule, VAP made three recommendations to ensure fair VA evaluations for veterans seeking mental health benefits:

Extend the Proposed Time Frame for VA Evaluations

The proposed rule requires examiners to analyze the level of impairment based on the frequency and intensity of veterans’ disability-related symptoms in the last month. This narrow time frame would pose a problem for veterans with conditions like eating disorders or other mental health illnesses, which may take months to accurately assess. Further, the mechanism for evaluating an impairment (which focuses on the frequency and intensity of symptoms), places a heavy burden on veterans to diligently track and report their symptoms. Otherwise, they may not be eligible for benefits. The proposed rule could lead to inaccurate examinations and ratings. VAP’s recommendation is for the VA to provide a longer time frame to conduct evaluations for mental health conditions to ensure an accurate assessment.

Reconsider How Medications Impact Ratings

 The proposed rule would give examiners the power to consider the positive effects of medications when determining a rating. VAP articulated three reasons why providing examiners with such discretion is improper. First, this level of discretion could lead veterans to stop taking their medication for fear they would receive a lower disability rating.  Second, while medications could help alleviate veterans’ symptoms, many may be unable to afford continued treatment without sufficient VA benefits. Third, under federal regulations, examiners must evaluate a veteran’s entire mental health record to make a proper assessment including examining conditions with and without medications.

Limit the Broad Discretion Given to Examiners

 Finally, our comment asked for clarification on changes that seem to broaden discretion for examiners. Questions posed to the VA included:

  • To what extent will medical exams be conducted by medical professionals not affiliated with or trained by the VA be allowed and what will the standard of review be for external exams?
  • What weight should responses to the Disability Benefits Questionnaire carry when making a diagnosis? VAP recommends setting clear guidelines for examiners on evidence and information that should be assessed to render a diagnosis. Requiring examiners to strongly consider questionnaire responses, as opposed to making an independent diagnosis, can help ensure fair evaluations.
  • Can definitions for “domains” and “level of impairments” be clearer and refined? This will help limit the discretion given to examiners when conducting an evaluation as well as enhance uniformity in ratings.

The City Bar Justice Center’s Veterans Assistance Project hopes these recommendations are considered as the VA comes to a decision on the proposed rule and that they implement changes that support the veteran community.

This communication is for the general education and knowledge of our readers. Because all legal problems involve their own specific set of facts, this informational resource is not and should not be used as a substitute for independent legal advice. This informational resource also is not intended to create, and its receipt does not constitute, an attorney-client relationship. Please contact competent, independent legal counsel for an assessment of your particular legal concerns, or contact our Legal Hotline (212.626.7383 or https://www.citybarjusticecenter.org/legal-hotline/) to determine whether you qualify for assistance from the City Bar Justice Center.

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