Congressional Record Statement of Senator Daniel K. Akaka

Mr. President, today I introduce the proposed Veterans' Rating Schedule Review Act. This legislation would remove a barrier to legal redress faced by veterans who believe that a provision of the VA Schedule for Rating Disabilities--the Rating Schedule--does not comply with a law passed by Congress. The amount of compensation veterans with service-connected conditions receive is based on a disability rating, which VA assigns to these conditions. VA uses its rating schedule to determine which rating to assign to a veteran's particular condition. Under current law, the Court of Appeals for Veterans Claims has jurisdiction to consider only Constitutional challenges to the rating schedule. When legislation was passed providing for judicial review, review of the rating schedule was specifically prohibited as part of a final compromise.

This legislation would expand the jurisdiction of the court to include cases where a provision of the rating schedule or the absence of a rating for a condition mandated by statute is challenged. Under the proposed change, aspects of the VA rating schedule that appear to violate requirements of law set forth in chapter 11 of title 38, United States Code, would be subject to the court's jurisdiction.

I expect VA to comply with all laws passed by Congress in developing and revising the rating schedule. However, justice to our Nation's veterans requires a forum in which the rating schedule can be challenged when someone believes that a statute passed by Congress to provide compensation for the service-disabled is being violated.
  
Veterans seeking to challenge the denial of benefits based on the rating schedule's lack of consistency with other laws are subject to rejection by the court due to the prohibition in current law. The United States Court of Appeals for the Federal Circuit held, in Wanner v. Principi, 370 F.3d 1124, 2004, that the language in current law "removes from the Veterans Court's jurisdiction all review involving the content of the rating schedules and the Secretary's actions in adopting or revising them."

One example of the kind of case that would be affected by the change to the law is VA's lack of action in response to legislation enacted in 2002 which allows veterans who qualify for compensation due to the loss of hearing in both ears to receive special ``paired organ'' benefits. In the years since that law was passed, many veterans serving in Iraq have suffered hearing loss after being exposed to Improvised Explosive Device blasts. However, VA has yet to issue regulations to amend the rating schedule, as required by the law. Under the current state of the law, no one could bring a legal challenge to that failure to act.

I note that the exception to the ban on review of the rating schedule proposed in this bill is a limited one. The bill would not allow for a wholesale assault on the rating schedule. It would merely provide judicial review of cases where compliance with a law passed by Congress is challenged.

I urge all of my colleagues to support this measure, so that veterans seeking justice may have an appropriate forum to challenge the VA's compliance with governing statutes.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

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March 10, 2008