Meds(HBP, Migraines, Cholesterol) and Reduction/Denying SC

[blahsaysme2u]

question from another thread:

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if you are on meds and your migraines decrease- can the va decrease your SC%? even if i ran a log now i would barely hit the 10% mark bc the meds work so well...off them im at 30%(altho i probably could have fought for 50% if i wanted but i was already at 100% and didnt feel like fighting the va anymore over it) i have worried about this for a while bc in my yearly checkups with the doc he always asks me how the meds are doing and i been telling him how great they are and how much a difference its made in my migraines, but now getting worried that might bite me in the ass later...

 

 

so @Vync already gave some input here saying below:

 

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That is a very good question. I can't look up the law/reg right now, but vaguely recall from memory that "it depends". If the rating criteria specifically mentions the impact of medications as to a percentage tier, then a reduction can legitimately happen. However, if it does not mention that, then the VA is not supposed to reduce.

A great example of this is asthma ratings. As an alternative to the FEV/FVC1 breathing ratings, a vet can get 10% or 30% rating depending on the type and frequency of inhaler they use. However, the 60% level also includes systemic steroids (ingested or injected) three or times a year to meet the 60% threshold. If it is a fresh increase to 60%, the VA tends to state it is temporary because the condition is expected to improve. They will follow up in about a year to re-evaluate the situation.  If the vet sought that treatment from a non-VA source, they would need to provide proof of that to the VA otherwise the VA will issue a proposal to reduce.

Additionally, some conditions might yield a higher %, such as prostate cancer. However, once the prostate is removed, the VA could then rate on any residuals from the removal.

Please keep in mind that much of this is from memory, so please double-check any references as necessary...

 

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@blahsaysme2u It might be worth considering filing for those as secondary also. Your medical records show a diagnosis when they initially started giving you the meds. However, you would not currently be taking those meds if your diagnosis was normal. With the appropriate nexus, they might grant secondary SC. Although it is still possible they might grant 0% SC, consider if things get worse. At that point you can definitely consider filing an increase.

It might be worth splitting the secondaries out to a new topic, but I would assume the same might apply to migraines, too. The migraine criteria I posted makes no mention at all of the impact of medication. It's just the type and frequency.

 

 

im wondering not just about Migraines but also HBP and Cholesterol, as all are being controlled by meds...i am only SC for migraines but wanted to SC HBP and Cholesterol but was told i would be denied bc i cant provide a diary with numbers....as Vync pointed out, my medical records do show a diagnosis...

[GBArmy]

A veteran can get a 10% rating for high b/p even if their numbers are controlled now. M21-1 provides if their med records PRIOR to the start of taking meds meets the criteria for a rating, then they can get a 0% or 10% depending on what the records says.  In other words, get your med records that show diastolic of 100 or more BEFORE diagnosis and prescribed meds.

V.iii.5.3.e.  Predominant Blood Pressure in Evaluations of Hypertension

Every level of evaluation specified under 38 CFR 4.104, DC 7101 requires consideration of the predominant (most common or prevailing) blood pressure. Blood pressure may fluctuate depending on a number of variables and disability evaluations must be based on valid evidence demonstrating representative disability.     Generally the regulation requires analysis of predominant current readings— readings from the period during which an effective date can be assigned.   When current predominant blood pressure readings are non-compensable, a 10-percent evaluation may be assigned if continuous medication is required for blood pressure control, and past diastolic pressure (before medication was prescribed) was predominantly 100 or greater.

[broncovet]

Its unclear with the regulations, if Vets are compensated for HBP without Blood pressure medication or with Blood pressure meds. 

CCK law says it this way:

https://cck-law.com/types-of-va-disabilities/hypertension/

Further, since HPB meds, as well as many other medications often cause side effects, CCK law is suggesting seeking secondary comp for the side effects of HBP meds.  

When the regs are "silent" it means that VA gets to do it any way they want, based on Chevron Deference.  Chevron Deference, in a nutshell, is a Supreme Court ruling which gives "agencies" (aka the VA) the right to interpret their own regulations in most cases.  

VA has taken full advantage of Chevron.  For example, the VA interprets "claimant friendly, benefit of the doubt" to mean "make the Veteran wait as long as possible, then deny him and hire 500 lawyers to prevent him from getting any benefits".  

Make no mistake, the 500 lawyers on staff at VA's sole job is to see to it Veterans get the lowest possible benefit.  These lawyers represent VA even against pro se Vets.  

Supreme Court justice, Roberts, was startled when it was discovered that VA "takes a position against the Veteran which is substantiallly unjustified" about 80 to 90 percent of the time.  (This is at the CAVC level, and this is the reason Veterans regurarly get their attorney fees paid by EAJA.  To be eligible for EAJA fees, the court determines that VA has taken a position against the Veteran which is "substantially unjustified".)

     What all this means is that VA is NOT claimant friendly, and one or more of their lawyers is waiting to fight you, should you appeal to the CAVC.