Veterans Law Prof Blog

VA Proposes Changes to Mental Disorders Ratings Schedule (Jennifer Morrell, Widener University Delaware Law School)

The Department of Veterans Affairs (VA) has proposed to amend the section of the Schedule for Rating Disabilities that addresses mental disorders—38 C.F.R. § 4.130.

The changes include a completely revamped general rating formula and the inclusion of eating disorders under the rating formula for mental disorders.  According to VA, this is the first substantive revision since 1996. The revised rating criteria are partly based on the DSM-5 and reflect an emphasis on ability to function in the work setting versus just symptoms.  VA states that symptoms determine diagnosis but do not always translate directly to functional impairment.

VA notes in its explanation for the proposed changes that employees with mental disorders are at higher risk for work absences than the general population.  VA also states that mental disorders reduce engagement in life activities more than physical disabilities.  Further, VA relies on studies that found veterans with mental disorders are undercompensated by the current rating schedule. 

VA’s proposed changes include an entirely new rating formula based on five separate domains:  1) cognition, 2) interpersonal interactions and relationships, 3) task completion and life activities, 4) navigating environments, and 5) self-care.  Each domain would be assessed for severity, with the components of severity being intensity and frequency.  Intensity would be measured as none, mild, moderate, severe, and total.  Frequency would refer to the percentage of time in the past month during which impairment occurs.  Generally, frequency is rated as being either less than 25% of the time or greater than 25% of the time, which is in keeping with how the World Health Organization and DSM-5 assess impairment.  VA acknowledges that impairments occurring over 25% of the time are more disabling socially and occupationally than those that occur less frequently.

Once the VA evaluates intensity and frequency of impairment for each domain, VA would then find the value—from 0 to 4—for each domain.  For example, a 4 would be assigned for total impairment that occurs 25% or more of the time.  A 3 would be assigned for severe impairment that occurs 25% or more of the time or total impairment that occurs less than 25% of the time. 

Based on its proof of concept study involving 100 veterans with mental disorders, VA claims the proposed rating changes are potentially more generous than the current formula.  One inarguably positive change VA proposes is doing away with the 0% rating for mental disorders, the idea being that if you warrant a diagnosis for a mental disorder you have some minimum level of impairment.

VA’s changes include a note directing evaluators to consider any ameliorative effects of medications prescribed for a mental disorder.  This would mean that evaluators would rate only the actual symptoms present, without speculation as to how severe the symptoms would be without medication.  

The proposed changes can be found here.  Comments are due by April 18, 2022.

VA Proposes Changes to Digestive System Ratings Schedule (by Danielle Alush and Jennifer Morrell, Widener University Delaware Law School)

The Department of Veterans Affairs (VA) has proposed to amend the section of the Schedule for Rating Disabilities that addresses the digestive system—38 C.F.R. § 4.110-4.114. The changes include the addition of new medical conditions and new diagnostic codes (DCs), revision and clarification of rating criteria, and--according to VA--updating terminology to reflect the most up-to-date medical knowledge and clinical practice of the gastroenterology and hepatology specialties.

According to VA, the update reflects recommendations from the 2007 report of the National Academy of Sciences, Institute of Medicine. VA also relied on the Rome Foundation, a non-profit organization that created a classification system for the various forms of gastrointestinal dysfunction, known as Rome IV.

The following are some of the proposed changes:

· Ulcers—According to VA, advancements in medicine indicate that most peptic ulcers are caused by infection (Helicobacter pylori) or the use of pharmaceuticals such as aspirin or other non-steroidal anti-inflammatory drugs and not caused by location. The VA proposes to eliminate outdated instructions such as Section 4.110 and DCs 7304-06, all of which classify ulcers by location.

· Dumping syndrome—VA proposes to rate dumping syndrome under the new DC 7303, "Chronic complications of upper gastrointestinal surgery," which covers surgeries on the esophagus, stomach, pancreas, and small intestine, including bariatric surgery. In addition, VA proposes to eliminate Section 4.11, as the material in it becomes superfluous once the new DC takes effect.

· Weight Loss—In the current ratings schedule, weight loss requirements vary across numerous different conditions. VA proposes to rename section 4.112 “Weight loss and nutrition” and substantially revise the definitions contained therein to achieve greater uniformity in decision-making. The updated section includes four main definitions: Weight loss, baseline weight, undernutrition, and nutritional support. Finally, the new section would allow the use of either the Hamwi formula for ideal body weight (IBW) or the Body Mass Index (BMI) table in assessing “baseline weight.”

· GERD—VA currently rates GERD analogous to hiatal hernia under diagnostic code 7346. In the proposed changes, VA would assign GERD its own diagnostic code (7206), but VA would continue rating the condition by analogy, this time using the diagnostic code for esophageal stricture, DC 7203.

· Other new diagnostic codes—A number of new codes proposed in this comment are intended to provide more specificity and possibly a more gainful rating to claimants, according to VA. The new codes include gastroesophageal reflux disease (DC 7206—mentioned above), Barrett's esophagus (DC 7207), chronic complications of upper gastrointestinal surgery (DC 7303), liver abscess (DC 7350), pancreas transplant (DC 7352), celiac disease (DC 7355), gastrointestinal dysmotility syndrome (DC 7356), and post pancreatectomy syndrome (DC 7357).

VA’s proposed changes can be found here. Comments are due by March 14, 2022.