Finally, the DAV has no official position on the legislative proposal which would restore DIC benefits to eligible survivors who have attained the age of 60 and who have remarried. Although our organization has no official position, I would point out, however, that last year the delegates to our National Convention rejected a similar resolution. Putting aside for the moment the issue of program integrity, one must question the wisdom and rationale for the bill's "age 60" criterion. Why this particular age? Why seemingly discriminate against younger surviving spouses or surviving spouses with dependent children? One can argue that if the decision is made to lift the present remarriage restriction, then it should be done for all categories of surviving spouses. However, the Committee and the Congress might very likely be inviting endless criticism from groups of surviving spouses who are excluded from the bill's coverage. And what of the philosophical break from present program integrity? The fundamental, if not, sole intent of DIC benefits is to provide a measure of financial security to surviving spouses and orphans due to the service-connected loss of the breadwinner. That is why, under current law, DIC benefits cease upon the remarriage of a surviving spouse and resume should the subsequent marriage terminate in divorce or death. Also, DIC benefits to surviving children cease upon the attainment of majority age--the sole exceptions being (1) continuation for "helpless" children and (2) temporary continuation based upon educational pursuits. Clearly, in addition to service-connected death, eligibility to DIC payments is, and always has been, linked to dependency status and the absence of a provider. The measure proposed in your Committee clearly abrogates this criteria. Accordingly, the DAV questions whether there is sufficient, compelling reason for such a change in law. I hope this information will be helpful to you and wish to thank you for extending to us the opportunity to present our views on these important subjects. Sincerely, Charles & DryJ CHARLES E. JOECKEL, JR. CEJ:ah I appreciate the opportunity to respond to the comments and recommendations expressed in your letter of September 16, 1981, relative to the proposed circular concerning problems in rating claims based upon individual unemployability. The field station rating boards are vested with broad discretionary authority in making decisions as to entitlement to benefits. It is imperative that those decisions be based upon sound judgment following development of all phases of each claim and that the decisions be in accordance with sound medical principles and VA regulations. I wholeheartedly agree that rating boards must operate in an environment which is free from coercion and intimidation. However, this does not mean that the rating activity should be exempt from supervision and training. The proposed circular was prepared to serve as a tool which could be used to train new rating board members and to sharpen the skills of existing rating specialists. Such an instruction was found to be desirable after recent reviews indicated continuing difficulties in the rating of claims for total benefits because of individual unemployability. The examples contained in the circular were included as training aids to illustrate areas of difficulty for various rating boards. The situations listed summarize the facts found from single cases and are to represent common rating errors. The examples are not intended to serve as guidelines for rating specialists. I believe that the instructions in the circular are sufficient to point cut the purpose of the examples. The 1977 project to provide for automatic release and control of VA Form 21-4140, Employment Questionnaire, was requested but never installed. The release and control for return of VA Form 21-4140 continues to rest solely with field station personnel (21-1, paras. 49.14 and 55.08). Interest in automation of these functions was rekindled by the fact that 13.2% of the cases reviewed under the provisions of DVB Circular 21-80-7 had not been adequately controlled. The findings indicate that the control of cases involving grants because of individual unemployability continue to require the attention of management. 213B Mr. Norman Hartnett Lastly, I do not find that the reference to age in paragraph 7(C) of the proposed circular is either misleading or contrary to VA policy. The statement that age may be considered in determining permanence of disability is based upon VAR 1340 (B). Paragraph 19 of the Schedule for Rating Disabilities and VAR 1341 clearly state, however, that age may not be considered as a factor in determining the severity of serviceconnected disability. Age, as such, is a factor for consideration only if the severity of nonservice-connected disability is evaluated for purposes of nonservice-connected pension. I would like to take this opportunity to thank you for your comments regarding the proposed circular. Sincerely yours, DOROTHY L. STARBUCK September 16, 1981 Ms. Dorothy E. Starbuck 810 Vermont Avenue, NW Dear Ms. Starbuck: Thank you for your letter of September 4, 1981 and for giving us an opportunity to respond to the proposed DVB Circular on problems in rating individual unemployability. We not only acknowledge but support the right of the Veterans Administration to establish and maintain a system to monitor and evaluate its programs. This is clearly necessary to maintain program integrity and to ensure that the Veterans Administration is accepting and discharging its statutory obligations. However, we feel that your proposed circular amounts to an overkill and would subvert the intent of individual unemployability evaluations. It appears from your letter and paragraph one (1) of the proposed circular that problems in establishing and maintaining control of individual unemployability cases are still present. However, we do not understand why it is necessary to issue a circular to resolve this matter. In 1977, the Veterans Administration reviewed all cases of veterans who were under 60 years of age and in receipt of a total rating due to individual unemployability. The purpose of this review was to ensure that proper control was established; after the review the control of these cases was to be interfaced into a new computer system. This new process would establish control and send VA Form 21-4140 annually directly to the veteran. If this computer system is now operational, the VA should have the capacity to identify cases which are not properly controlled. Accordingly, the Regional Office Directors and/or Adjudication Officers should be contacted and held accountable for their failure to comply with M21-1, paragraphs 49.14 and 55.08. This approach would narrow your focus and allow you to concentrate your total effort on identifying and providing direction to those offices which need assistance in establishing and maintaining control of cases involving individual unemployability evaluations. Recently, there has been a systematic effort to circumvent the professional judgement of the rating specialist. We believe this to be evident by an analysis of PG 21-1, Change 281, DVB Circular 21-80-7, hotline call requesting a copy of each new rating establishing entitlement to individual unemployability, plans to review cases of veterans who are over age 60, plans to conduct a second review of all cases involving individual unemployability based upon nervous conditions, and now the proposed DVB Circular. We are also concerned about the adverse effect the circular will have on Rating Boards. The very nature of Rating Boards. demands freedom from coercion and intimidation. In our opinion, this includes administrative actions which influence or alter the rating members' independent judgement. It is within the broad discretionary authority of the rating specialist to render decisions which involve judgement. Historically, these decisions, including those based on judgement, were and are presumed to be correct in the absence of clear and unmistakable error. The preliminary results from the most recent review revealed that less than five percent (5%) of nearly 68,000 cases were reduced. We believe this is an indication that at least 95% of the cases involving individual unemployability evaluations were factually and procedurally correct. In our opinion, the reduction rate would have been less if VA Offices like Boston, Togus, Buffalo, Columbia, Des Moines, St. Paul, Sioux Falls, Honolulu, Ft. Harris, Albuquerque and Cheyenne would have followed the intent of DVB Circular 21-80-7. The purpose of the cited circular was to provide for development and reductions only if the grant was clearly and unmistakenly erroneous under VAR 1105 (A). However, it is obvious, based upon the statistics, that the aforementioned offices took the circular as a mandate for a witch-hunt. This resulted in many reductions without a conclusion that the original grant was clearly and unmistakenly erroneous. It is also interesting to note that the proposed circular questions the judgement of the Rating Board. This is clearly shown by the cited examples. Most of these cases involved judgement and would not satisfy the stringent criteria of VAR 1105(A). In fact, we believe the examples as written are so weak that they should not be used as a guideline. For instance, 1(a) failed to cite all of the pertinent facts. What did the examination of December 16, 1977 show? Were the clinical findings sufficient to justify the assigned 60% evaluation? Where was the veteran working in 1972-1973? What was his job description? Did he quit his employment because of his respiratory disorder? Was there a |