[Congressional Record Volume 154, Number 40 (Monday, March 10, 2008)]
[Senate]
[Pages S1819-S1820]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. AKAKA:
  S. 2737. A bill to amend title 38, United States Code, to grant 
jurisdiction to the United States Court of Appeals for Veterans Claims 
to review compliance of the schedule of ratings for disabilities under 
section 1151 of that title with statutory requirements applicable to 
entitlement to disability compensation under chapter 11 of that title, 
and for other purposes; to the Committee on Veterans' Affairs.
  Mr. 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

[[Page S1820]]

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.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2737

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Veterans' Rating Schedule 
     Review Act''.

     SEC. 2. REVIEW BY UNITED STATES COURT OF APPEALS FOR VETERANS 
                   CLAIMS OF COMPLIANCE OF SCHEDULE OF RATINGS FOR 
                   DISABILITIES WITH STATUTORY REQUIREMENTS 
                   APPLICABLE TO ENTITLEMENT TO DISABILITY 
                   COMPENSATION.

       Section 7252(b) of title 38, United States Code, is 
     amended--
       (1) by inserting ``(1)'' after ``(b)'';
       (2) by striking the third sentence; and
       (3) by adding at the end the following new paragraph:
       ``(2)(A) Except as provided in subparagraph (B), the Court 
     may not review the schedule of ratings for disabilities 
     adopted under section 1155 of this title or any action of the 
     Secretary in adopting or revising that schedule.
       ``(B) The Court may review whether, and the extent to 
     which, the schedule of ratings for disabilities complies with 
     applicable requirements of chapter 11 of this title.''.

                          ____________________