Does Medication Impact Your VA Disability Rating?

                We all know that medication is a necessary part of the treatment of physical and psychiatric illnesses.   Drugs can have a two-fold effect: 1) they can reduce, even eliminate, the symptoms of a disability, but 2) they can also cause side-effects, minor or severe. When disabled veterans take medication for their service-connected disabilities, do the positive and negative consequences affect their overall disability rating?

                The answer depends upon what the VA Rating Schedule provides. Very briefly, the VA Rating Schedule is a guide for evaluating the severity of service-connected disabilities. It sets forth criteria (a list of the types, and/or the severity levels, of symptoms) corresponding to each disability level. Each disability has a corresponding numbered Diagnostic Code, which sets forth the criteria. If the criteria in the Diagnostic code do not refer to medication or the effects thereof, then the positive effects cannot be considered in the disability rating. On the other hand, negative side-effects must be considered as an additional factor in the overall disability rating.  

1)           Positive Effects of Medication

                The Veterans Court has made clear that VA adjudicators must focus on the criteria specified in the Rating Schedule, and cannot base a lesser disability rating on the beneficial effects of medication:

[VA adjudicators] 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.

Jones v. Shinseki, 26 Vet.App. 56, 63 (2012).

                Let’s take the facts in the Jones case. There, the veteran sought the highest disability rating for his irritable bowel syndrome (IBS). For this disability, the Rating Schedule provided: 1) a ten (10) percent disability rating for a “moderate” disability with “frequent episodes of bowel disturbance with abdominal distress”; and 2) a maximum 30 (thirty) percent rating for a “severe” disability with “diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.” The Schedule’s criteria made no mention of medication.

                The Board of Veterans Appeals (“the Board”) denied a thirty (30) percent rating, reasoning that the veteran’s anti-acid medication reduced the severity of his diarrhea and abdominal distress.   The Veterans Court reversed, stating that it was error for the Board to consider the relief provided by the medication since no applicable criteria included the effects of medication:

Absent a clear statement in the [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 [Diagnostic Code]. 

Id. at 63.

2)           Negative Side-Effects of Medication

                The rule is less clear when it comes to the negative side-effects of medication.   The case of Wilson v. McDonough, 35 Vet.App. 103 (2022) seems to offer the best approach. In Wilson, the Veterans Court held that complications caused or aggravated by treatment of a service-connected disability must be considered in the overall disability rating. Here, the most common complications of medication are drowsiness, dizziness, fatigue and stomach and intestinal disturbance.   It is very important that veterans submit a statement to the VA, outlining the side-effects of their medication. VA adjudicators will then be required to assess the additional rating for the side-effects based upon the most analogous criteria in the various Diagnostic Codes of the Rating Schedule.

                While disability ratings maybe increased for the negative side-effects of medication, these side-effects have a more common and powerful application in claims for total disability based upon individual unemployability (“TDIU”). A veteran who struggles with chronic negative side-effects may have problems with absenteeism or productivity – he/she may simply not be a realistic or viable candidate for substantial gainful employment.  In Moyer v. Derwinski, 2 Vet.App. 289 (1992), for example, the veteran pursued a TDIU claim, alleging, among others, that no employer would hire on a full-time because he took narcotics to relieve the pain of his service-connected disability. The Board rejected the TDIU claim, but the Veterans Court overruled the Board, instructing that the TDIU claim should be considered in light of the veteran’s pain and the effects of narcotic pain killers.