Court of Appeals for Veterans’ Claims Sides with Veteran Medications Controlling Service- Connected Condition Symptoms Cannot Be Used Against Him in Rating
Court of Appeals for Veterans' Claims Sides with Veteran Medications Controlling Service- Connected Condition Symptoms Cannot Be Used Against Him in Rating
Recently, in Jones v. Shinseki, ___ Vet.App. ___ (Case no. 11-2704) (2012) , the Court of Appeals for Veterans’ Claims considered whether the ameliorative effects of medication on symptoms of a service-connected disability justified a lower rating for the disability.
In Jones, a veteran appealed a Board of Veterans’ Appeals (Board) Decision that denied entitlement to an initial disability rating in excess of 10% for irritable bowel syndrome (IBS). On appeal, the veteran argued the Board committed legal error by considering factors outside the schedular rating criteria for IBS-namely, the fact that medication afforded the appellant some level of relief from his symptoms. He asserted, had the VA intended that the efficacy of medication be taken into account in rating IBS, it could easily have done so in the rating criteria.
In support of this argument, the veteran cited to other diagnostic codes that explicitly included the need for or effects of medication as part of the rating criteria.
In agreeing with the veteran, the Court held the Board committed remandable error by considering the effects of medication on the appropriate rating for appellant’s service-connected condition when those effects were not explicitly contemplated by the rating criteria.
The court found, absent a clear statement in the relevant diagnostic code setting out whether or how the Board should address the effects of medication, the Board erred in taking those effects into account when evaluating the appellant’s disability, rather than limiting itself to the symptoms expressly contemplated by the appropriate rating code.
Put another way, if the requires the Board to inquire on specific symptoms, but does not direct the Board to consider relief from those symptoms afforded by medication, the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.
If your service-connected disability ratings have been lowered due to the symptom-controlling effects of medication, you may be entitled to a higher rating. Contact the Berry Law Firm for additional information. www.ptsdlawyers.com.
Established in 1965 by Vietnam War veteran and attorney John Stevens Berry Sr., Berry Law Firm is a team of veterans dedicated to defending, safeguarding, and fighting to protect the rights of veterans. Over the decades, thousands of veterans from across the country and all branches of the military have trusted our firm with their cases and, more importantly, their futures.