If medication successfully treats your condition, or lessens the severity, how do ratings work?

[Wico1337]

Hello all,

Ever since the desert, I have had weird migraines and extreme pressure/pain in ears about once every month-2 months. I have been to the VA doctor many times for this and they tell me my ears just have wax, or that I have an ear infection. After 2-3 days the issue always goes away. Their water blasting my ears and medications never help with the ear pain. I also get Migraines with the classification of "prostrating" where I am in extreme pain and I have to lay down in darkness. Finally comes the issue of coughing and clearing throat. For the past 8 years, I have been in a constant state of feeling like i have to cough up stuff, but nothing ever comes up. I had lung tests done long ago and my doctor told me that since the test results for breahting/lungs didnt reveal anything, theres nothing she can do and its probably my weight that is causing the issue.

Fast forward 8 years of this happening and my VA doc not caring, I get a new doctor. I tell her my frustration of the coughing and ear issues/headaches. She tells me to start taking Zyrtec and Flonase. After one week, I noticed that my throat issues and coughing are gone. I also no longer have ear pain. I still have slight migraines but they are not nearly as severe. My new doctor also scheduled me for an ENT exam where the ENT specialist called me and asked me of my symptoms and such. I told him that the zyrtec/flonase has fixed all of my issues. He immediately diagnosed me with Allergic Rhinitis. Pretty cool, I hear that thats some sort of presumptive condition. So I filed for that one. 

My question is... Now that Migraines have been improved with the medication, do I not get rated for the prostrating condition of my Migraines? The ear pain has subsided with the meds, so I dont think I would qualify for a VA rating for the ears. But how does a rating work if taking medications for your VA service connected issue reduces the severity of a condition? Would the Rater rate you at your condition with the improvement from meds? Or would they rate you at your condition which forces you to take meds at the severity of not taking the meds?

Does this mean that if you have a condition and take meds, which fully fix your condition, do you get rated at the lowest severity of the condition regardless of the extreme severity before?

[brokensoldier244th]

They rate the condition, not the meds. You’d still have prostrating symptoms but for the meds. The condition still exists regardless. 

[Dustoff1970]

The U.S. CAVC veterans court made this favorable to vets decision in 2012. 

"In Jones v. Shinseki, 26 Vet.App. 56, 63 (2012), the Court held that the veteran is entitled to a rating based upon his unmedicated condition – that is, the higher disability evaluation – if the effects of medication are not explicitly mentioned under the applicable diagnostic code of the rating schedule.
Compare See 38 C.F.R. § 4.71a, DC 5025 (2014) (providing, inter alia, a 10% evaluation for fibromyalgia that “requires continuous medication for control,” and a 40% evaluation for fibromyalgia that is “constant, or nearly so, and refractory to therapy”); 38 C.F.R. § 4.97, DC 6602 (2014) (providing varying evaluations for bronchial asthma based on the type and frequency of medication required).
The Jones decision has the potential to help a lot of veterans. Most diagnostic codes do not consider the ameliorative effects of medication. Let’s take the General Rating Formula for Diseases and Injuries of the Spine under 38 C.F.R. § 4.71a, DCs 5235-5243 — not a word is mentioned about medication.
Therefore, a veteran’s forward flexion of his service-connected spine must be measured according to his unmedicated condition. That is, his range-of-motion must consider the limitation caused by pain when not relieved by medication." 

This is the full answer to your question.  Some VSOs and former VSOs give only short half  answers

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

Edited June 23, 2022 by Dustoff 11

[brokensoldier244th]

47 minutes ago, Dustoff 11 said:

The U.S. CAVC veterans court made this favorable to vets decision in 2012. 

"In Jones v. Shinseki, 26 Vet.App. 56, 63 (2012), the Court held that the veteran is entitled to a rating based upon his unmedicated condition – that is, the higher disability evaluation – if the effects of medication are not explicitly mentioned under the applicable diagnostic code of the rating schedule.
Compare See 38 C.F.R. § 4.71a, DC 5025 (2014) (providing, inter alia, a 10% evaluation for fibromyalgia that “requires continuous medication for control,” and a 40% evaluation for fibromyalgia that is “constant, or nearly so, and refractory to therapy”); 38 C.F.R. § 4.97, DC 6602 (2014) (providing varying evaluations for bronchial asthma based on the type and frequency of medication required).
The Jones decision has the potential to help a lot of veterans. Most diagnostic codes do not consider the ameliorative effects of medication. Let’s take the General Rating Formula for Diseases and Injuries of the Spine under 38 C.F.R. § 4.71a, DCs 5235-5243 — not a word is mentioned about medication.
Therefore, a veteran’s forward flexion of his service-connected spine must be measured according to his unmedicated condition. That is, his range-of-motion must consider the limitation caused by pain when not relieved by medication."   

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

Yup, this is why when you are going to an exam, consider how you feel/operate/move on a 'bad' day. Don't exaggerate and show up with a cervical collar, a walker or whatever (unless you DO use one, then by all means, please do) but be honest in your self assessment and communicate that to the examiner. When they flex or extend you STOP when it would normally hurt. I take a LOT of pain killers- my threshold baseline for pain is a lot higher than an average person's for this reason, and I have to consider how I feel prior to an exam (sometimes I take notes) if I wasn't medicated. My daily pain ating of 4 or 5 is a lot higher than most peoples'. Some of my medications I can stop for a few days prior because they build up over time. I CHOOSE TO DO THIS- I'm not saying don't take your meds and for gods' sakes don't endanger yourself. But, consider that the examiner sees what they see- if you are having a great day and don't tell them that explicitly, or physically display a 'not good' day, well, this is sometimes how ratings get low-balled. 

I hate acting broken, too, and I love my good days. But when it comes to trying to ascertain what your current condition is you arnen't doing yourselves any favors trying to suck it up and soldiering on for the examiner. In a lot of you guys' cases that's what got you low ratings in the first place- lack of documentation because you were a little busy shooting at the enemy to go to sick call, or the 'culture of bravado' within a military unit was a strong preventative to seeking medical care. 

 

New guys- At Least Mention Stuff on Your Exit Physical!! I see so many exit physical exams, both old and recent, where all the boxes are checked 'nope, im great.....', and then a year or 5 later you file a claim for something with little documentation, an entry and exit physical that say "Im great!", and no post svc care or treatment. If a condition or contention of yours doesn't meet Caluza elements, this can be problematic.

Caluza, basically is 1. in svc event- you reported it, more than once (this helps because the examiner can't say it was acute i.e. "you sprained your ankle 1 time playing B-Ball by the pool").

2. You have a current diagnosis or continuing treatment, even if sporadic.

3. a plausible connection between the two (this is where your lay statements come in, yours, or buddy statements, spouse statements, whatever). 

Edited June 23, 2022 by brokensoldier244th

[Dustoff1970]

Another answer to your question in my most recent example of being VA diagnosed and serviced connected for GERD at the 60% rating level due to Vietnam long term PTSD.  In both my written and oral statements to the QTC examiner I explained my severe symptoms before taking VA medications and also submitted these written symptom statements with my claim to the VARO rater.

I also explained how these bad GERD symptoms persisted even after but at a lesser degree after taking VA meds for many years.   I received the 60% for GERD rating within 20 days from filing my claim and not having to appeal to BVA.  C&P examiner accepted my statement and medical copies of long-term VA diagnosis and medications for GERD.  Hope this helps you.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

[Vync]

@Dustoff 11is right. For example, some ratings like asthma are based on medication use. If you use an inhaled bronhodilator like albuterol rescue inhaler, you get a higher rating than if you didn't. They also factor in breathing tests too, so there are multiple ways to qualify for ratings. However, they do cheat the veteran breathing tests because if you test bad before using the inhaler, they will take the better measurements from after you took the inhaler. That's an example of where they can use what is in the rating criteria to award a potentially lower rating. Jones v. Shiseki simply reminded the VA adjudicators to RTFM, but I feel that allowing medication usage in the rating criteria to justify a lower rating is a true disservice to vets because it does not compensate them justly for the severity of their SC disabilities.

For anyone who might opt out of taking their meds ahead of a C&P exam, consider doing that carefully. On one hand, you might get rated more accurately. However, on the other hand, for those like me who have critical health issues (prior heart attack), there are certain meds which I cannot go without. Consider talking with your doc and/or pharmacist to inquire about the safety of going without meds because some stay in your body longer than others.

[worriedshrimp]

this thread, at least for me, presents another question in regards to the new veterans bill H.R.3967 - Honoring our PACT Act of 2022. specifically the ruling on hypertension purportedly to began in october of 2022. at what level will pre - medicated hypertension/high blood pressure be measured? maybe someone with more knowledge of how the system works can chime in on this specific. noteworthy also are the many new presumptive issue for gulf war veterans and the like.

 

thanks again for this informative group of folks.