1 in 3 PACT Act Claims Have Received a 0% Disability Rating, Prompting a VA Review

[Dustoff1970]

Recent interesting article from Military.com news site.

"

The Department of Veterans Affairs has approved nearly 80% of the 570,000 claims it has adjudicated under the PACT Act, distributing more than $2.2 billion in disability compensation to veterans or survivors since it began accepting claims last year.

Of the total claims, however, 34% have received a 0% disability rating, meaning that affected veterans have at least one service-connected condition under the law that is not disabling -- for example, hypertension, which has been linked to Agent Orange exposure, that is controlled by medication.

 

 

The VA is now reviewing its ratings schedule to determine whether it can revise it to address medically controlled conditions such as hypertension, VA Under Secretary for Benefits Joshua Jacobs told reporters Thursday."

 

[Vync]

I wonder how this new initiative from the VA would affect my Vietnam vet father's current 0% hypertension rating (effective 1990). He currently has a PACT act claim in for a variety of issues, but the VA is working his claims slowly.

Curious if it would be effective going forward or could result in an EED back. I have a feeling this will be go forward only.

The VA really needs to fix all 0% ratings to make them a 10% minimum. 0% ratings are like the VA saying you are disabled, but are you really?

[Dustoff1970]

Okay in my response answer to your questions here is the U.S. CAVC 2012 decision referring to the moderating effects of medications on a vets disability claims.  The actual discussion by the judges takes place further down in the decision in SECTION III.  Good stuff those judges.

https://www.uscourts.cavc.gov/documents/Jones11-2704.pdf

Jones v. Shinski       October 26, 2012      No. 11-2704

The sorry SOBS on another forum like to poo poo these court decisions as having no bearing on VARO rater decisions but the same SOBs never mention you can win your claim on appeal to the BVA and or CAVC using these precedent court decisions.

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

 

 

[broncovet]

The judges were consistent with the regulations in my view.  (A precendential decision, that is binding on future decisions, because this was at least 3 judges, in agreement):

Quote

As this Court has made clear, "[t]he Board's consideration of factors which arewhollyoutside the rating criteria provided by the regulations is error as a matter of law." Massey v. Brown, 7 Vet.App. 204, 208 (1994); see also Drosky v. Brown, 10 Vet.App. 251, 255 (1997) (finding legal error where the Board, "in essence, impermissibly rewrote" the regulation by considering factors wholly outside the rating criteria); Pernorio v. Derwinski, 2 Vet.App. 625, 628 (1992) ("In using a standard that exceeded that found in the regulation, the Board committed legal error.").

In other words, the VA must use the defined criteria, it cant make stuff up.  This is why I won my benefits.  The VARO denied my hearing loss, "because it was too long since military service".  The problem?  "Length of time since military service" is not one of the criteria, instead it was simply made up BS by the rating specialist to deny".  

This is why you need to check the criteria, and see if the reasons and bases denied you for stuff that is NOT in the critieria.  

As I explained, the VA can not reduce your benefits because you went to a Bon Jovi concert in a tie die tshirt, with blue spiked hair.  This is not in the criteria.  

    In the same way, the VA can not reduce your benefits "because you applied for an increase"  for the same reason:  "The Veteran applying for an increase in benefits" is not one of the criteria for reduction.  Instead, the criteria is here:

https://www.law.cornell.edu/cfr/text/38/3.344

      Read this over and see if you "actually improved under ordinary conditons of life" using this criteria.  The improvement has to be sustained and not episodic.  In other words one or two or a dozen good days, is not necessarily "sustained improvement" but more like you had an episode of being sick, then you had an episode where you had no symptoms.  

Edited September 28, 2023 by broncovet

[Vync]

@broncovet That sounds like how I won one of my CUE claims. The VA made up criteria to justify a 10% reduction due to aggravation instead of following the regs saying the pre-service reduction percentage must be in terms of the schedule.

 

@Dustoff1970

12 hours ago, Dustoff1970 said:

The sorry SOBS on another forum like to poo poo these court decisions as having no bearing on VARO rater decisions but the same SOBs never mention you can win your claim on appeal to the BVA and or CAVC using these precedent court decisions.

I remember asking about my CUEs and a FTCA on the other forum and received the same "you'll never win" responses. I went back and let them know I won one the toughest CUE, the FTCA, and the other CUE is still stuck on appeal. 

[Dot09]

I have never had the fear that the Va will come after me but am selective in what I say. Because my conditions have only gotten worse and as far as filing a new claim I’ll continue to do so. As I’m going to file for gerd and ibs secondary to service connected medications. It’s appalling that the Va uses the tactics of delay and deny but on top of that low balling and rating at zero percent is very frustrating. Personally I think the minimum of a disability should be 10 percent. Point is it’s a disability therefore should be rated.

P.S. Hopefully in my lifetime I hope they add interest to back dates claims that way they will follow regulations more carefully

[Vync]

If the intent of the rating schedule is to accurately assess the level of a disability, my opinion is that the concept of moderating effects of medication should not be factored into ratings at all. If not for the medications, the disability would be more severe. Applying the moderating effect to some disabilities like hypertension, IBS, or asthma in effect artificially reduces the benefit the veteran should have been receiving all along... For decades, it seems like a way for the VA to lowball veterans...