Veterans will have their disability compensation evaluated based on whether their prescribed medication or treatment improves their illness or injury, according to a new federal rule.
The Department of Veterans Affairs will now take into account whether medications improve veterans’ quality of life when determining disability ratings. If so, their rating “will be based on that lowered disability level,” according to the new rule published in the federal register that went into effect Tuesday, Feb. 17.
“This regulation simply formalizes VA’s longstanding practice of determining disability ratings based on Veterans’ service-related disabilities and any medications they are taking to treat those disabilities,” VA spokesman Pete Kasperowicz said in a statement to Task & Purpose. “VA has been determining disability ratings this way since 1958.”
But veteran service organization officials said the rule is new and changes the way that the VA evaluates disability claims — which might mean lower or reduced ratings for veterans with disabilities.
“They are going to be evaluated under this new criteria and potentially receive a lower disability rating based on this sudden interim rule, whereas last Friday, they likely would have gotten a higher evaluation because this rule wasn’t in place,” Michael Figlioli, the national service director for Veterans of Foreign Wars, told Task & Purpose.
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The new rule may affect veterans with a range of ailments like musculoskeletal injuries, hypertension, and mental health conditions. Experts said the new rule might cause veterans to purposefully not take their prescribed medications to avoid a lower rating.
“You’re potentially going to force a veteran whose condition is serious enough to be put on antidepressants or other medications, and now you’re going to rate them at the level that the medication provides [them] relief,” Figlioli said. “You’re now going to put some of these veterans at risk because they potentially could stop taking their medication.”
Coleman Nee, the national commander for Disabled American Veterans, said in a statement that the rule would reduce ratings for veterans who take medications to control or alleviate their symptoms.
“It is unclear if and how VA is implementing this dramatic change and how it will impact the more than 6 million veterans currently receiving disability compensation, most of whom are taking at least one medication,” Nee said.
Figlioli said that the VFW “would respectfully disagree” with the VA’s characterization of the new rule as representing longstanding practice since 1958.
“This is the first time VA placed their specific interpretation clearly into text,” Figlioli said. “If there had been consistency in application since 1958, there would have been no need for repeated judicial clarification.”
To receive a disability rating, veterans undergo an arduous process in which they submit a claim with relevant medical and military records and undergo a follow-up exam with VA doctors. Then, claim adjudicators determine if a disability is connected to a veteran’s military service and give them a rating between 0 and 100%, which determines their monthly disability check.
‘Contrary to the public interest’
Typically, federal agencies allow for public comments so they can revise a rule based on feedback. But according to the notice, Department of Veterans Affairs Secretary Doug Collins decided to publish the rule as final because “providing advance notice and prior opportunity for public comment is impracticable and contrary to the public interest.”
Nee said DAV was “extremely disappointed and alarmed” by the new rule that was “developed and issued in a closed and unnecessarily expedited process” that did not give veterans the chance to give input.
VA officials argued that it was “impracticable” to delay finalizing the rule because it would disrupt the VA’s rating process and impede veterans from receiving benefits. Officials also said that the old way of doing things increases VA costs by adjudicating claims “based on a disability level that veterans are not actually experiencing.”
Michael Embrich, a Navy veteran and former advisor to senior leaders at the VA, noted that the public comment link on the federal registrar’s website doesn’t work.
“It’s incredibly messy and politically ugly, and they’re just gonna try to shove a rule change down our throat,” Embrich said. “By the time this goes to court and if it’s ever adjudicated in the next one or two years or three years, the damage will be done already.”
