Define VA’s ‘improvement’

[glashutte]

In terms of VA reducing ratings if they can show evidence a condition has ‘improved’

What exactly does it mean ‘improve’? For example if one who’s rated for depression sees a psychiatrist and is medicated and condition improves with medication, could this rating then be reduced?

Basically if we seek treatment for our conditions then conditions stay same or get better, do we then risk rating reduction?

 

[brokensoldier244th]

Medicated improvement isn't improvement. It's just mitigation. 

In 2012, the U.S. Court of Appeals for Veterans Claims made a very important ruling in the case of Jones v. Shinseki.

The Court determined that the VA could only consider the effect of medications if the rating requirements in the VASRD specifically mention medications in the diagnostic code.  If not, then the condition could only be rated based on the symptoms present without medication. 

The Court argued that since the experts who wrote the VASRD included the effects of medication in some of the rating requirements, they must have considered these effects for all of the conditions. Thus, if medications are not mentioned in a condition’s rating requirements, this must have been intentional and the ratings should be applied without considering medications. The Court further stated that if the experts did want medications to be considered, then they could rewrite the rating requirements accordingly.

Since 2012, the majority of the VASRD has been updated and this ruling taken into account. For some conditions, the updated rating requirements do now mention medications and treatments. For others, however, they still do not, thus confirming that the ratings for these conditions were always intended to be applied without considering the effects of medications.

 

Jones v. Shinseki, ___ Vet.App. ___ (Case no. 11-2704) (2012)

 

Edited August 17 by brokensoldier244th

[broncovet]

Great job, broken soldier.  Its also explained by the regulation, too.  The regulation, below, explains that "improvement" needs to be "actual improvement under ordinary conditions of life" and that it has to be "sustained" improvement, not episodic improvement.  Taking a pill that makes you feel better for a few hours or days, does not mean you have had "actual improvement under ordinary conditions of life".  

 

Quote

 

§ 3.344 Stabilization of disability evaluations.

(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ______ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

 

 

Fear sells, and the media, and other's take people's money.  The entire insurance industry "sells" the idea of "covering you" when a bad event happens.  Most of the time, that bad event never happens, the insurance company just keeps your money.  

My daughter in law "bought every insurance policy known to man" to "protect" her, and releive her fears.  

She bought a 3 year "cell phone protection plan", and paid something like 20 dollars per month times 36 months or $720.  She had a claim where the phone broke just barely in that 3 year period.  

 

So, the company says, "you are covered".  Its a $150 dollar deductable, (of course) and we will buy you a 3 year old phone.  (Not a new one).  Your 3 year old phone is now worth $150.  Enclosed is your check for $150 minus the $150 deductable or $0.00.  She paid $720 in insurance to cover a claim of $0.00.  She learned and does not buy the protection plan again, ever.  They sold her "fear" of losing money when your phone breaks.  

Edited August 19 by broncovet

[glashutte]

On 8/17/2024 at 4:53 PM, brokensoldier244th said:

Medicated improvement isn't improvement. It's just mitigation. 

 

In 2012, the U.S. Court of Appeals for Veterans Claims made a very important ruling in the case of Jones v. Shinseki.

The Court determined that the VA could only consider the effect of medications if the rating requirements in the VASRD specifically mention medications in the diagnostic code.  If not, then the condition could only be rated based on the symptoms present without medication. 

The Court argued that since the experts who wrote the VASRD included the effects of medication in some of the rating requirements, they must have considered these effects for all of the conditions. Thus, if medications are not mentioned in a condition’s rating requirements, this must have been intentional and the ratings should be applied without considering medications. The Court further stated that if the experts did want medications to be considered, then they could rewrite the rating requirements accordingly.

Since 2012, the majority of the VASRD has been updated and this ruling taken into account. For some conditions, the updated rating requirements do now mention medications and treatments. For others, however, they still do not, thus confirming that the ratings for these conditions were always intended to be applied without considering the effects of medications.

 

Jones v. Shinseki, ___ Vet.App. ___ (Case no. 11-2704) (2012)

 

Sorry for the delay, I’ve been out. 
thank you for your reply. 
 

Do you have an example of a rating that is accompanied by medication? 
For example would it be in the rating title, or rating description and VA details? 
I’m trying to find an example of what this would look like:

‘For some conditions, the updated rating requirements do now mention medications and treatments‘

Edited August 27 by glashutte

[brokensoldier244th]

General Schedule for Rating Mental Disorders, 38CFR 4.130

General Schedule for Rating for Cardiovascular 38CFR 4.104

 

Both mention "continuous medication " at their 0$ and 10% ratings tier.

 

CAS

[Rattler]

Nice post broncovet on § 3.344 Stabilization of disability evaluations.

After reading Laska v McDonough 22-1018. The CACV made this statement. 

It is well settled that the Court has jurisdiction to review VA's interpretation and application of its own regulations. See, e.g., Lane v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003) (holding that the "Court should review de novo the Board's interpretation of a regulation"); Bradley v. Principi, 22 Vet.App. 280, 290 (2008). This power includes the ability to review the Board's interpretation and application of a DC. See, e.g., Otero-Castro v. Principi, 16 Vet.App. 375, 380-82 (2002) (reviewing the Board's interpretation and application of 38 C.F.R. § 4.104, DCs 7005, 7007 (2001)). 

This confirms the SCOTUS decision on the Chevron case that the VA's own internal regs can be reviewed

I am attaching it here with the interesting parts highlighted.

Jones v. Shinseki, Vet. App.-(Case no. 11-2704) (2012) effect of medications.-Highlited.pdf