Veteranclaims’s Blog

October 14, 2009

How VA Can Use Off-Label Presrcibing Against Disability Claims

Yesterday we linked to a Blog that stated that psychiatric prescriptions were being issued by the VA, that this was being done off-label, meaning that, “more than 60% had no record of a diagnosis for which the drug was approved.” see Off-Label Use of Psychiatric Medications Common for Veterans, October 13, 2009 | By Jennifer Gibson, Site: http://brainblogger.com

Well today we want to point out why our concerns were raised. In the Neely case the VA sought to deny Mr. Neely his disability entitlement because: “In its decision, the Board found that the appellant had “not presented any competent evidence showing treatment or a diagnosis of a chronic infection or any problems with tonsillitis
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since his discharge from service.” R. at 9. The Board also found that, because the appellant “testified that he has not had any problems with his tonsils since he was started on medications by VA in 2002,” and because the record “does not show that any of the medications were prescribed for . . . any problems associated with tonsil infections,” there was “no competent evidence that the [appellant] has a disorder at present manifested by chronic tonsil infections.” R. at 9-10. see Neely v. Shinseki, NO. 07-1570, Before SCHOELEN, Judge.
MEMORANDUM DECISION
, Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

So, in this case and more likely than not many other cases the VA will assert that when you do not have a diagnosis to go along with the medication, the VA will make a fact finding against you.

Fact findings against you are bad because the Veterans Court can not easily over rule a fact finding by the VA.

So bottom line, get a diagnosis that corresponds to the medication. Don’t accept verbal words here, get it in writing and if ever there is any doubt about what is happening, contact a lawyer, get free legal clinic help, get competent representation.

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1 Comment »

  1. Does the VA presume a disability effectively treated by drugs is no longer a disability? I am not talking about a cure only a stop-gap that works only as long as the medication is available.

    If a prosthetic eliminates most or all of a condition, such as knee braces stabilizing the joint, does this eliminate the to the extent corrected the disability? I think that in the case of the prosthetic, where its removal would show what the true condition is, the VA in most cases bases their findings on the condition without the prosthetic. Title 38 does have instances in which correction by a prosthetic would preclude a higher rating based on lack of use.

    But why is it that disabilities that respond to medication are evaluated based not on the true extent of the disability but on the modified drug induced state that an examiner sees? All of the side effects from the medications aren’t even considered as a part of the disability. What happens when the medication stops working or only works once and a while? The true extent of what a Veteran has lost serving his country isn’t considered let a lone compensated. What about pain and suffering aren’t they important as well.

    I am starting to ramble, its the drugs, so I will leave it at this.

    Comment by Louis Leib — October 14, 2009 @ 8:34 pm


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