WILL MY MEDICATION CUT MY BENEFITS

[USMC_VET]

In a recent post about my upcoming DRO Review Asknod and I talked about  whether or not medication and its making you better affects your rating,

i.e. if im better with medication will the va reduce me or if i file a claim will i get a lower percentage?

The answer it seems (and chime in if there is a case, recent ruling or CFR change we are unaware of) is that...It depends.

Jones V. Shinseki (Click to read case) states that...

"Thus, to the extent that the Court did not explicitly hold in Otero-Castro that the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria, it does so today. This ensures that all similarly structured DCs are interpreted and operate in the same manner so that diagnostic criteria are applied consistently. Therefore, as DC 7319 is silent as to the effects of medication, the Board erred in denying entitlement to a higher disability rating based on the relief provided by the appellant’s anti-acid (sic) medication."

In laymens terms, if you DC (Diagnostic Code that your claim is evaluated under, example "headaches" can be under 8100 which is "migraines) does not specifically state anything regarding medication and how it makes you better or more able to function, etc. then it CANNOT BE CONSIDERED when rating you. 

Examples:

1) If you have migraines, but the docs give you a medication that helps make them better, more easier to deal with you CANNOT be rated lower based on how you feel now, but on how the illness affected you prior to going on the medications.

2) For Flatfoot (DC 5276) you can see below in the table they specifically mention if not improved by orthopedic shoes (a treatment) and you have the other symptoms mentioned you are due a 50% rating, however if your condition is better using the orthopedics, depending on your unique issues, you will not be due to the 50% rating.

 

5276   Flatfoot, acquired:
Pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances
Bilateral	50
Unilateral	30
Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities:
Bilateral	30
Unilateral	20
Moderate; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral	10
Mild; symptoms relieved by built-up shoe or arch support

 

 

3) In the Case of Hyperparathyroidism you will see specifically the words medication mentioned.  So lets say you have this condition....

You take medication and you no longer have GI symptoms or weakness, but require and will continue to require medication, you are due 10%

You take medication but you still have GI symptoms and weakness, you are due 60%

You cannot take medication for one reason or another due to allergy, conflicting with other medications, etc. and you have GI symptoms and weakness you are due 60%.

The VA can deny you 60% if you had the symptoms before but the medication eliminates it.  there are of course numerous unique factors that could play your case differently.

 

7904   Hyperparathyroidism
Generalized decalcification of bones, kidney stones, gastrointestinal symptoms (nausea, vomiting, anorexia, constipation, weight loss, or peptic ulcer), and weakness	100
Gastrointestinal symptoms and weakness	60
Continuous medication required for control	10
Note: Following surgery or treatment, evaluate as digestive, skeletal, renal, or cardiovascular residuals or as endocrine dysfunction.

 

If you have been denied claims because the VA states that your medication has "ameliorated" the symptoms of your illness (VA speak for you dun got better) and you look in the 38 CFR and see NO mention of medications or treatments in the DC you were rated under you have a case to have that appealed and reverse (in my opinion, contact a lawyer for a true legal opinion).

 

I wanted to put this out there for folks who are going to be submitting claims, initial or increase and have this concern or have had claims denied in the past because the VA said their medications made them better.  Research your specific issue, first look and see what DC they rated you under and check that in the 38 cfr and make sure they didnt sell you on bad info.

also read ASKNOD\'s article on this case specifically.

 

 

Edited August 21, 2015 by USMC_VET

[broncovet]

Jones says:

Thus, to the extent that the Court did not explicitly hold in Otero-Castro that the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria, it does so today.

end Jones quote.  

I interpret this to mean that, no, the Board may not deny Veterans a higher rating because the medication helped them.  

Example:

    When you are rated for hearing loss, you are rated WITHOUT the use of hearing aids.  

    If you lose a limb to a IED, and the VA fits you with an artifical limb, they dont say, "Gee, what are you complaining about "loss of use" of your foot for?  You seem to be able to walk ok on that piece of wood, so why should we pay you for that?"  

 

      If you look at the rules for reductions, you will see that, in order to reduce you (if you are P and T or "over 5 years", this does not apply to convalescent or "Temporary" ratings), the VA has to show "Actual Improvement under ordinary conditions of life".  

      "Ordinary conditions of life" suggests UNmedicated.  Why?  Because "ordinary" people dont take meds, only those with a malady take meds.   The VBM further suggests that "ordinary conditions of life" means "working" because "ordinary" people work, while disabled people generally do not work.  They go on to say that if rest from not working makes your knees (or whatever) improve, this does not mean VA can reduce you.  Now, if you did go back to work, testing POGO sticks, then your rating may be in danger, as your knees "actually improved"   under ordinary conditions of life.  

Sure, a Vet with bumb knees could probably take 4 vicodin along with a pint of Vodka, and he could test those pogo sticks without pain.  

    Likely, he would pay for it the next day.

    The VA is supposed to compensate Vets for the "average" impairement of earnings.    A "100 percent" Vet mostly loses ALL of his earning capacity.  (There are exceptions, as sometimes 100 percent Vets can overcome their disabilities and still work, like Max Cleland.)  

 

     You cant pop a half dozen vicodin and just keep working, at least not in the long term.  

The irritating part is that VA even disputed this.  This is evidence the VA does not have our interest at heart, that there is no "pro claimant, non adversarial VA" except in politicians speeches.   

    

 

Edited August 21, 2015 by broncovet