Tuesday, January 27, 2015

Proposed Cuts to the VA 2015

Anyone wondering how the Federal Government’s ballooning debt figures may affect veterans benefits may have found some answers in the CBO’s most recent publication “Options for Reducing the Deficit: 2015-2023.”  Two recommendations made to Congress that can lighten future monetary obligations to veterans made it into the recommendations. 

The first recommendation is to cut Total Disability due to Individual Unemployability (TDIU) payments to veterans over 65 years old.  TDIU is a benefit that attempts to compensate veterans who are unable to secure substantially gainful employment due to their service-connected disabilities.  These veterans have disabilities that do not add up to a 100% disability rating on their own, but are considered “totally disabled” due to the cumulative effect of these conditions on their ability to earn a livelihood.  There are many conditions that need to be met to receive TDIU and the term “substantially gainful occupation” is such vague regulatory language that it is always in play when this rating is being contemplated.  Suffice it to say for purposes of this discussion, TDIU helps disabled veterans who cannot sustain work above marginal employment due to their connected conditions. 

With the proposal, the CBO contemplates that the VA could save 15 billion dollars over the next 8 years.  The premise of the proposed cut is that veterans who are past Social Security’s retirement age no longer need the TDIU benefit because they would not be working anyway.  Additionally, the CBO points out that these vets will be receiving their normal VA disability payments and can most likely qualify for Social Security payments.  What this recommendation fails to take into account (and the CBO readily concedes) is that for a veteran who receives TDIU, the likelihood he or she has been able to work consistently may be very low.  This may significantly affect the veteran’s ability to qualify for full Social Security payments or to have a retirement nest-egg built up. You can read about the proposal here:  https://www.cbo.gov/budget-options/2013/44757 .

The second proposal of the CBO affecting veterans benefits deals with severing benefits for seven specific conditions that the GAO has identified as “generally neither caused nor aggravated by military service.”  These seven conditions are: chronic obstructive pulmonary disease, arteriosclerotic heart disease, hemorrhoids, uterine fibroids, multiple sclerosis, Crohn’s disease, and osteoarthritis.  The CBO estimates this could save the Federal Government 20 billion dollars over the next eight years. 

In favor of this recommendation, the CBO relies on an often heard argument – the VA system should be more like a civilian system and should not compensate for conditions that are unrelated to military duties.  The CBO also suggests that “A broader option could eliminate compensation for all disabilities unrelated to military duties, not just the seven conditions identified by GAO. For a condition such as arthritis, for instance, which may or may not result from military duties, the determination of whether the condition was related to military activities could be left up to VA.”

I am not opposed in theory to conditions that are not caused directly by military duties being determined non-compensable.  That may be an unpopular statement, but it would be naïve not to recognize that cuts may be made to the VA system and we do need to start looking for places where the least pain for veterans will be felt. However, I am very concerned about how that would be done.  The CBO suggestion means that in addition to the many things the VA is required to determine when considering whether a disability may be granted benefits (veteran status, a current disability, an in-service event, and a nexus between the disability and event), it may now also be required to decide if the veteran’s military duties actually caused  the condition.  That is definitely not as easy as it sounds.  In addition to showing the arthritis condition was caused by events during a veteran’s service, the veteran will also have to find a doctor (presumably) who will determine which activities led to the condition.  Then the VA’s rating officer will have to make the determination if these activities were part of the veteran’s military duties.  This suggestion by the CBO will fundamentally change the determination and delivery of veterans benefits and will undoubtedly shift the burden in this “veteran-friendly” system onto the veteran to prove what a military duty is.  As one former NCO I spoke with put it, “When a Sergeant tells a Private to do something he does it, whether it was a part of the Private’s official duties or not.  When the Private gets hurt, how in the world will you ever be able to prove ten years after the fact that he was verbally ordered to do that action?”  Good point.  It seems like a bad idea to require more of an already over-burdened and slow VA. 

You can read more about the CBO’s suggestion here: https://www.cbo.gov/budget-options/2013/44756

http://lawprofessors.typepad.com/veterans_law/2015/01/proposed-cuts-to-the-va-2015.html

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