MEDICATED AND NON-MEDICATED VETERANS
1. Medicated Service-Connected Disabilities
Many veterans suffer severe side-effects from taking medication for their service-connected
For instance, the taking of prescribed narcotics to relieve the painful effects
of a service-connected back disability may cause the following symptoms: sleep impairment,
loss of cognitive function, anxiety and so forth.
A rating specialist, or decision review officer must consider these symptoms in
rating the veteran’s overall disability.
See Mingo v. Derwinski, 2 Vet.App. 51, 54 (1992) (holding that the disabling effects
of medication used to control the veteran’s headaches must be factored into the
disability rating); see also Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (veteran’s
heavy medications were among factors that could have led Director of the Compensation
Service to consider an extraschedular evaluation).
To be sure, these symptoms are not found under the General Rating Formula for Diseases
and Injuries of the Spine. See 38 C.F.R. § 4.71a, DCs 5235-5243.
However, the veteran’s representative should argue that the same or similar symptoms
are found under the general rating formula for mental disorders.See 38 C.F.R. §
4.130, Diagnostic Code 9411.Specifically, you could argue for an additional thirty
(30) percent disability rating for these symptoms.DC 9411 (listing anxiety and sleep
impairment as two of several symptoms warranting a 30% disability rating).
2. Unmedicated Service-Connected Disabilities
A veteran’s representative may wish to look at the medication issue from just the opposite perspective. In other words, in most cases, medication improves the veteran’s overall condition.
The important question then becomes: Should the degree of the veteran’s disability rating be based upon his medicated or unmedicated service-connected condition?
In Jones v. Shinseki, 26 Vet.App. 56, 63 (2012), the Court held that the veteran is entitled to a rating based upon his unmedicated condition – that is, the higher disability evaluation – if the effects of medication are not explicitly mentioned under the applicable diagnostic code of the rating schedule.
Compare See 38 C.F.R. § 4.71a, DC 5025 (2014) (providing, inter alia, a 10% evaluation for fibromyalgia that “requires continuous medication for control,” and a 40% evaluation for fibromyalgia that is “constant, or nearly so, and refractory to therapy”); 38 C.F.R. § 4.97, DC 6602 (2014) (providing varying evaluations for bronchial asthma based on the type and frequency of medication required).
The Jones decision has the potential to help a lot of veterans. Most diagnostic codes do not consider the ameliorative effects of medication. Let’s take the General Rating Formula for Diseases and Injuries of the Spine under 38 C.F.R. § 4.71a, DCs 5235-5243 — not a word is mentioned about medication.
Therefore, a veteran’s forward flexion of his service-connected spine must be measured according to his unmedicated condition. That is, his range-of-motion must consider the limitation caused by pain when not relieved by medication.