A federal lawsuit challenges an amended rule by the Department of Veterans Affairs mandating that disability ratings reflect how well veterans do on medication rather than on the severity of the condition. A Vietnam veteran with a pending claim and a law firm representing more than 500 veterans are among the plaintiffs in the case. (Joshua Magbanua/U.S. Air Force)
WASHINGTON — A lawsuit filed in federal circuit court challenges an amended rule by the Department of Veterans Affairs mandating that disability ratings be based on how well veterans do on medication rather than on the severity of the injury or illness.
Plaintiffs in the case include a Vietnam veteran with a pending disability claim and a law firm representing more than 500 veterans with disability claims for medical conditions connected to their military service. Both argue that the rule will cause them economic harm.
MilVet Law Firm, of Tacoma, Wash., and Andrew Laffoon, a disabled Vietnam veteran, are among plaintiffs asking the U.S. Court of Appeals for the Federal Circuit, in Washington, D.C., to overturn the rule.
“For over a decade the VA has been required to rate a veteran’s disabilities absent the effects of medication,” according to a written statement from MilVet, which described the actions by VA as “shocking” and “unprecedented.”
At issue is an interim final rule that amends the Code of Federal Regulations. It directs how VA examiners assess a veteran’s impairments on daily life skills and employment.
The rule — which VA claims is not being enforced after pushback from veterans — took effect Feb. 17 after being expedited by the agency.
“If medication or treatment lowers the level of disability, the rating will be based on that lowered disability level,” according to the amended rule.
The lawsuit argues that the rule was implemented without proper notice or prior public comment period.
VA Secretary Doug Collins, named as defendant, has backed off from the new directive after thousands of veterans and their advocates lodged complaints.
Collins said on social media Feb. 19 that the rule will not be applied to ratings determinations for new claims and reevaluations. Yet it remains in effect.
Paul Lawrence, VA deputy secretary, followed Collins’ comment, saying that the agency withdrew the rule. He made the comment Sunday at a conference of the Disabled American Veterans.
But attorneys at MilVet said that a formal, detailed process must be followed to withdraw an interim final rule, which requires the publication of a new notice in the Federal Register.
“I would presume the VA official simply is not familiar with the legal nuances of this and misspoke, as I am sure a government official would not purposely mislead interested parties in such a manner,” said Paul Jennings, a lead attorney at MilVet.
Jennings, himself a disabled veteran, said communications by VA leaders may seem contradictory to veterans, their families and advocates.
“I may just be an E-4 with a law degree, but I know this much, you don’t change the rules on veterans after the fact in the dead of night, and you don’t call it an emergency when it isn’t one,” he said.
Jennings compared the situation to a company commander posting a formal policy letter outside his office stating that leave will not be approved for any soldier who does not complete a 2-mile run in 12 minutes or less.
“The commander could then say the policy is obviously not proper, and he promises that he won’t actually enforce the policy, but he leaves it posted and on display outside his door,” Jennings said. “It would certainly raise an eyebrow as to why this policy, which he claims he will not enforce, remains posted and visible as if it was in full effect.”
Collins stated on social media that he is allowing a 60-day public comment period on the interim final rule to continue on regulations.gov.
Nearly 20,000 comments have been published in less than a week. The comment period is scheduled to close on April 20.
But Collins has not stated that he plans to initiate steps to withdraw or rescind the amended rule.
Until a formal notice is published, the VA “can turn enforcement on just as easily as they supposedly turned it off,” said Wesley McCauley, an accredited claims agent with United Veterans Disability.
McCauley also is named as a plaintiff in the case.
The lawsuit argues that the VA implemented its rule without following standard procedure for public notification, including an advance comment and review period.
“Failure to allow notice and comment, where required, is grounds for invalidating the rule,” according to the lawsuit.
But Collins stated in the Federal Register notice that any delay would cause “significant disruption” to the VA’s claims and benefits system.
The lawsuit claims the rule is causing economic harm to veterans and firms that represent them in filing and appealing claims.
MilVet, McCauley and attorney Derek Debus, another plaintiff in the case, charge legal fees on contingency, according to the complaint.
Lower disability ratings result in reduced compensation for veterans — which in turn reduces payments to the businesses representing the veterans.
MilVet claims that its attorneys and staff also have spent many hours preparing disability claims and appeals that are not based on medication effects but on the condition itself, according to the lawsuit.
“Finally, these veterans face substantial hindrances to vindicating their own rights,” especially since the VA secretary immediately put the rule into effect, according to the petition.
The VA stated the rule is necessary after a 2025 decision by the U.S. Court of Appeals for Veterans Claims in Ingram v. Collins.
That decision required the VA to disregard the “ameliorating” effects — or improvements — veterans have from taking medication when determining a disability level for musculoskeletal conditions.
It aligned with prior court decisions that prevented ratings from being reduced based on how well medication alleviates or masks symptoms.
But the VA wrote the ruling was “erroneous.”
The VA said it will now have to reevaluate 350,000 claims based on the court decision, resulting in higher payments for “disability level(s) that veterans are not actually experiencing.”
In Laffoon’s case, the Board of Veterans’ Appeals sent his 2021 disability claim back to a regional VA office for another review after the Ingram v. Collins court decision.
The board ordered the VA to follow court guidance for evaluating conditions “absent medication,” according to court documents.
Laffoon, who served in the military from 1968 to 1969, is seeking a higher rating for diabetic peripheral neuropathies, a complication of diabetes that causes nerve damage.
But VA’s amended rule alters the legal standard governing Laffoon’s claim, negating any benefit from a second review, according to the lawsuit.
Laffoon is harmed by the rule because he most likely will receive a lower rating and reduced compensation, according to the lawsuit.
