A Vietnam veteran who has appealed his Department of Veterans Affairs disability rating has asked the courts to review a VA rule published Tuesday that requires medical examiners to factor in the effects of medication on a service-connected condition when determining a veteran’s disability rating.
Andrew Laffon has joined forces with several law firms to petition the U.S. Court of Appeals for the Federal Circuit to review the regulation, which was issued Tuesday as an “interim final rule” and immediately went into effect.
The rule clarified VA regulations on considering medical management of health conditions when determining a veteran’s disability rating. It was written in response to court decisions dating to 2012 that limited the consideration of medication’s effects by the VA’s claims adjudications board.
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Those court decisions also, however, noted that the VA secretary could adopt a regulation at any time that would clarify whether medications must be considered, and on Tuesday, VA Secretary Doug Collins did just that, arguing that without the ruling, the VA would face a massive administrative burden and would pay out disability compensation based on levels that “veterans are not actually experiencing.”
Under the new rule, medical examiners must consider a veteran’s “actual level of functional impairment” and can no longer estimate or discount improvements from medications.
If medication or treatment lowers the level of disability, the rating will be based on the lower level, according to the regulation.
Tuesday’s announcement infuriated veterans and advocacy groups who say the rule punishes veterans who comply with medical treatment, doesn’t consider the burden or side effects of taking daily medications or the efficacy of medications over the long term.
“Medication can reduce symptoms. It can help a veteran sleep, reduce vigilance, or stop anxiety attacks. But it does not remove the underlying traumatic experience, or moral injury, and it certainly does not mean a veteran can fully function without that treatment,” American Legion National Commander Dan Wiley said in a statement Wednesday.
They also argue that it was drafted in secrecy and published as a fait accompli — without appropriate input from those affected or experts in the field.
The plaintiffs argue that the rule will cause economic harm to veterans and firms that represent them. They also say that it is contrary to a long-standing policy of ruling in favor of the veteran when a dispute arises.
“This court should … set aside the interim final rule as it was made without observance of procedure as required by law, or as being arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law,” wrote Paul Jennings, the plaintiffs’ attorney.
While the rule is considered final, the VA is taking comments from the public for a 60-day period and will consider the feedback, according to the regulation.
By Thursday, 48 hours after the ruling was posted, the regulation had received nearly 9,000 comments.
Wesley McCauley, an accredited veterans agent with United Veterans Disability LLC, and a plaintiff in the suit, said he has heard from veterans who are worried that their disability compensation will be reduced.
In a post on his firm’s site, McCauley sought to reassure them, noting that the rule affects veterans who file new claims or appeals after the date the regulation was published, on Feb. 17. And he urged all to continue taking their medication.
He promised also to continue fighting the ruling.
“If its swift action Secretary Collins wants, we gave him just that. We didn’t ‘monitor the situation,’ we didn’t ‘study the matter closely.’ No, instead, in less than 48 hours since this rule took effect, we filed a Petition in the U.S. Court of Appeals for the Federal Circuit,” McCauley wrote. “We didn’t play around, we didn’t study the situation, we took swift and immediate action.”
Editor’s note: This report has been updated to reflect that Wesley McCauley is an accredited veterans agent.
Patricia Kime is a senior writer covering military and veterans health care, medicine and personnel issues.
