APA has weighed in on an ongoing revision of the Department of Veterans
Affairs' (VA) benefits guidelines that is intended to make those benefits more
accessible to veterans who need the services.
In a July 31 letter to VA Secretary James Nicholson, APA Medical Director
James H. Scully Jr., M.D., highlighted potential changes that could ground the
mental health regulations in current psychiatric concepts. The changes stem
from a 2001 VA task force recommendation that compensation and pension
regulations affecting veterans be rewritten and reorganized "in order to
improve VA's claims-adjudication process." The VA has not established a
timeline to finalize or implement the proposed changes.
The regulatory language changes are a chance not only to translate the
regulations into plain English but to allow "increased fairness to
veteran claimants with psychiatric disorders," Scully wrote.
APA's comments centered on the relationship between VA claimants'
psychiatric status and the department's determination of a veteran's
eligibility for benefits. The VA regulations of particular focus are those
that address the impact of beneficiaries' substance abuse and other mental
health issues in suicides and homicides on the benefits they and their
families could receive.
The VA regulations limit benefits if so-called willful misconduct has
occurred. These regulations define the situations in which the VA does not owe
benefits for the injury, disease, or death of former members of the military
because it determined that the person brought the situation upon himself or
In determining willful misconduct, the APA letter states, VA officials must
take into account certain psychiatric elements relevant to the claimant's
state of mind. The letter emphasizes that the VA policy should change to
require a series of "legally sufficient" findings or a series of
due-process protections before a finding of willful misconduct can bar a
APA is encouraging the VA to compensate veterans fairly when weighing
compensation for disability or death against veterans' degree of
responsibility for that injury or death.
APA's letter urged the VA to amend it regulations to explicitly encompass
all disabling psychiatric disorders and conditions, including addictions. Such
addictions, including pathological gambling, "can seriously impair
quality of life to the point of disability," Scully said.
The VA regulations refer only to general "mental unsoundness"
as determined by "available lay and medical evidence" when
considering whether former service members' actions should disqualify them
VA regulations should adopt clear definitions for the terms it uses to
determine disability, Scully told VA officials, including when the use of
alcohol and drugs rises to the level of "abuse" or"
addiction." He urged the use of a psychiatrist's diagnosis before
any administrative determination of substance abuse, "insanity" or"
mental unsoundness," which current regulations do not address.
Such a diagnosis would give the VA a medical basis for its actions.
The VA also should provide a definition for "insane" or"
insanity" to aid in its benefits decisions involving homicide,
"Definitions of criminal-law `insanity' defenses have varied by
jurisdiction over time, so it is essential for VA adjudicators, as well as
those representing veterans in legal proceedings, to have a common definition
for insanity," Scully wrote.
Additionally, the VA guidelines state that the department considers binding
any court determination that a person was insane at the time of a killing but
do not define what type of court "determination" it is referring
to. It is unclear, Scully pointed out, whether the determination applies to an
ultimate court finding of not guilty by reason of insanity or whether a
court's inclusion of insanity as a finding of fact in a case would fulfill the
Although the current VA regulation rewrite is focused on various aspects of
benefit adjudication, further rewrites are expected of other VA rules and
regulations, and APA plans to comment whenever it believes its expertise can
guide VA decision making.