Veterans Affairs medical examiners are now required to consider the effects of medication on a veteran’s health condition when assigning a disability rating under a new regulation published Tuesday by the department.
Effective immediately, examiners will determine a veteran’s level of disability including the effects of medication or treatment — the “actual level of functional impairment under the ordinary conditions of daily life” — according to an interim final rule in the Federal Register.
Examiners are not allowed to estimate a veteran’s disability level if they were off their medications, and if a medication or treatment lowers the level of disability, the rating will be based on the lower level.
VA officials say the clarification is needed following several court rulings they said could be interpreted as allowing examiners to estimate or guess a veteran’s level of disability without medication.
“While VA believes this is already the correct construction of current regulations, this change will make more explicit in regulation VA’s longstanding policy and practice to include, among other factors, the ameliorative effects of medication when conducting disability evaluations,” officials wrote in the notice.
Basing a disability rating without considering the effect of medication or treatment is “an unquantifiable, hypothetical, unwarranted standard that would compensate veterans for a level of disability they are not actually experiencing,” they wrote.
The rule drew backlash from veterans groups including Disabled American Veterans, Veterans of Foreign Wars, the Unite for Veterans Coalition and others, who issued statements saying the rule could result in lower disability compensation for veterans whose health conditions are connected to military service.
The advocates noted that the rule was published as an “interim final rule” without input from veterans groups and questioned how it would affect those who already receive disability compensation.
“DAV is extremely disappointed and alarmed by VA’s decision to issue [the interim final rule],” National Commander Coleman Nee said in a statement. “It is unclear if and how VA is implementing this dramatic change.”
“As a former Army nurse, it seems this rule change could have unforeseen and harmful downstream effects for veterans, which is why it demands serious public scrutiny and possible legislative clarification from Capitol Hill,” VFW National Commander Carol Whitmore said. “While VA has authority to amend the rating schedule, it must do so without adversely affecting veterans.”
Retired Marine Corps Lt. Col. Joe Plenzler, spokesman for Unite for Veterans, said the rule could result in lower disability ratings. He noted that previously, the VA focused on a veteran’s “worst days,” not on how medications are working on the day of a disability exam.
“This rule is very broad and seriously risks underrating veterans who have disabilities medications can mask but do not fix,” Plenzler said in a statement.
The rule was published as an “interim final rule” to go into effect immediately — a move that also has alarmed veterans groups.
Under the normal rules process, federal agencies publish an interim rule and solicit comments from the public for a set time period, usually 60 days. The agency then uses the comments to craft the final rule, which goes into effect once it is published in the Federal Register.
For the new regulation, VA Secretary Doug Collins said the department will take public comment under consideration but would implement it immediately. Collins argued that by not being clear, the department runs the risk of increasing administrative costs, delaying claims decisions and distributing excess disability compensation based on levels that “veterans are not actually experiencing.”
“Issuing this interim final rule without delay is in the public interest because it will prevent a significant negative impact on veterans awaiting claim decisions from VA,” the rule stated.
DAV and Unite the Veterans both took issue with the VA’s assertions.
“The rule … was developed and issued in a closed and unnecessarily expedited process that effectively shut out veterans from providing any meaningful input,” Nee noted.
“The claim that quick action on this issue is required shows the degree to which the VA is putting its administrative needs ahead of veterans’ needs and the realities of their lives. This is the wrong emphasis,” Plenzler said.
Since it was published Tuesday morning, the regulation has drawn more than 650 comments, many from veterans who said medications for various conditions such as musculoskeletal injuries, mental health conditions and hypertension often don’t produce consistent results and aren’t curative, leaving veterans to still deal with their disabilities daily.
Aaron Haygood, a retired airman, said the rule ignores the physical side effects of medication that can be debilitating in their own right and the logistical burdens of following a strict treatment regimen.
But more important, Haygood added, it creates a “dangerous incentive not to seek treatment.”
“It creates a cruel choice where the veteran must decide between taking the medication for an improved quality of life knowing it could lead to a reduction in the benefits they may depend on or sacrifice their quality of life to ensure financial stability for their family,” Haygood wrote.
“This policy will discourage veterans from seeking life-saving treatments,” he added.
Patricia Kime is a senior writer covering military and veterans health care, medicine and personnel issues.
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