A VA disability rater cannot consider the positive effects of current medication when rating a disability if the applicable diagnostic code is silent with respect to medication. However, this can be reversed by the VA amending the Federal Code.
During the rating decision, the VA looks at the current level of disability claimed and applies the rating schedule, found in 38 C.F.R. Book C. Quite often, the rater looks at the current level of disability as the veteran presents at that moment, as described in the veteran’s application, as described by a medical doctor, and as presented in the veteran’s medical charts. The veteran’s current condition is usually rated including the positive effects of any medication. For example, if a veteran suffers from irritable colon syndrome (“ICS”), and is currently taking medication which greatly lessens the effects of ICS, the rater will usually rate the condition under the lessened symptoms. Under Jones v. Shinseki, 26 Vet. App. 56 (2012), the rater must rate ICS as if it was not medicated. This means that if a veteran is currently suffering from ICS at a degree which would be rated as 10% disabling, but would suffer from ICS at a degree which would be rated at 30% disabling if his condition was not medicated, the rater must give him the full 30%. This is true for all illnesses and injuries unless the applicable diagnostic code shows that the Secretary knows how to include the effect of medication as a factor to be considered when rating. An example of this is Fibromyalgia, which specifically mentions medication at the 10% level. Another example where a rater can include the positive effects of medication when rating is in the case of Bronchial Asthma, which mentions corticosteroids and immuno-suppressive medications at multiple ratings. Because the rating schedules specifically mention medication for many conditions, the Court held that any omission of the effects of medication as a factor to be considered must be presumed deliberate.
The VA claimed that it could take medication into account because, according to 38 C.F.R. §§ 4.1 and 4.2, it had to consider the condition’s overall history, which could feasibly include the use of medications to treat and alleviate symptoms. The Court held that this was not the case because these sections of the US Code did not specifically address whether the VA could consider the effects of medication.
The Court alerted the VA that it could amend the Federal Code to include medication as a factor to be considered. Because the applicable Federal Code has not been so amended yet, there is a window for an increase in ratings if the rater wrongfully took the positive effects of medication into account when rating a veteran’s condition. Whether a veteran is seeking assistance in filing his or her claim from an attorney, a veterans service organization, or is filing a claim without any formal assistance, the veteran needs to look out for and appeal an improper rating based on the effects of medication.
Attorney Tod Leaven is a Veteran and Partner at Grimes Teich Anderson LLP.