Rated on Your Best Day: The Consequences of the New VA Disability Standard
The Department of Veterans Affairs recently issued an interim final rule revising how disability is evaluated under 38 C.F.R. § 4.10, the regulation that governs functional impairment in earning capacity. The change alters the framework used during examinations and rating decisions by directing adjudicators to evaluate disability based on the veteran’s condition as it presents withtreatment in place.
Because the rule was issued as an interim final rule, it is already effective but not yet permanent. The agency has opened a notice-and-comment period and must review public input before adopting a final version. This places veterans in’ a transitional period where the regulation is being applied while still subject to revision.
This article explains what changed, how the evaluation framework differs from prior practice, and what practical consequences may follow in the claims process. The final section discusses steps individuals can take in the near term while the rule remains open for comment.
Disclaimer:
This article is provided for general informational and educational purposes only. Nothing contained herein should be construed as legal advice or medical advice. Every claim before the Department of Veterans Affairs is fact-dependent and outcomes vary based on the individual circumstances of each veteran. Veterans considering filing a claim, reopening a claim, or seeking an increased evaluation should consult an accredited VA attorney, claims agent, or representative to discuss the specific facts of their case before taking action. This article should not be relied upon as a substitute for professional advice or as the basis for any legal decision-making.
The Amended Regulation
VA revised 38 C.F.R. § 4.10 by adding language directing examiners and adjudicators to evaluate a disability based on the veteran’s actual level of functioning while using treatment. The rule instructs that improvements caused by medication or other therapy are not to be estimated away or disregarded. If treatment lowers the severity of the condition, the rating is assigned using that lower level of impairment.
The change applies across the rating schedule because § 4.10 is a general evaluation principle rather than a condition specific diagnostic code. The instruction therefore affects how evidence is interpreted in most compensation claims.
How Disability Was Evaluated Before
Prior decisions from the Court of Appeals for Veterans Claims interpreted the rating schedule differently when a diagnostic code did not mention medication. In those situations adjudicators could not rely on symptom improvement caused by treatment to deny a higher evaluation. The Board was required to evaluate the disability without treating successful treatment as proof that the condition was mild.
This sometimes required examiners to discuss the severity of the condition absent treatment or to explain whether the record allowed the Board to determine that baseline level. The focus remained on the severity produced by the underlying condition rather than the degree to which treatment reduced it.
What the Change Does in Practice
The revised regulation directs adjudicators to rely on the veteran’s present functioning as it exists in daily life while treated. Evidence of symptom reduction from medication now directly informs the rating even when the diagnostic code does not mention medication.
As a result, the inquiry centers on documented functional impairment over time. Records showing symptom control, partial response, breakthrough symptoms, side effects, or periods where treatment cannot be used all become part of the measured disability picture because the regulation instructs decision makers to rate the condition as it actually manifests rather than reconstructing a separate untreated severity level.
Interim Rule, Interim Final Rule, and Final Rule: What’s the Difference
Federal agencies normally create binding regulations through a public process designed to let affected people react before the rule takes effect. The standard path is the final rule. That process happens in a predictable order:
The agency publishes a proposed rule and explains what it plans to do and why.
The public is allowed to submit comments, criticisms, and supporting information.
The agency responds to those comments and then publishes the final rule.
Only after that sequence does the rule become binding. The idea is simple. People should be able to participate in shaping a regulation before they are governed by it.
An interim final rule works in reverse. The agency issues a rule that is effective immediately or very quickly, and only afterward asks for comments. Those comments may lead to a later confirming rule or revisions, but in the meantime the regulation is already controlling real cases.
Because that skips the normal participation step, the Administrative Procedure Act requires the agency to justify it by finding “good cause.” The agency must explain that advance notice and comment would be impracticable, unnecessary, or contrary to the public interest. In other words, the agency has to say there is a real reason it cannot wait.
Does the VA’s Justification Match the Requirements for an Interim Final Rule?
An agency may bypass advance notice and comment only if it finds good cause that the normal process would be impracticable, unnecessary, or contrary to the public interest. Courts have consistently interpreted this as a narrow exception, not a convenience mechanism. Agencies must point to a real need for immediate action rather than a preference for administrative efficiency.
The VA’s preamble explains that the rule was issued immediately because a recent court decision could affect hundreds of thousands of pending claims, require retraining adjudicators and examiners, increase administrative costs, and delay benefits decisions. Those explanations primarily describe institutional burden and system disruption.
Courts evaluating good cause do not simply separate emergencies from administrative burdens. The central question is whether delay in rulemaking would itself disrupt the statutory program Congress created. Agencies often receive deference when immediate action is necessary to keep a nationwide benefits system operating, but courts are skeptical when the justification functions only to postpone the consequences of an unfavorable judicial interpretation. The dispute therefore turns on how the rule is characterized: preservation of program operability, or avoidance of precedent long enough to change the governing regulation.
VA argues the decision would require new evidentiary development and alter outcomes in a large number of pending claims. The legal issue is not whether the agency disagrees with the court, but whether implementing the decision during the comment period would materially impair the delivery of benefits. Good cause depends on whether the interim period would produce operational breakdown rather than policy inconvenience.
The legal question is therefore whether the asserted disruption rises to the level of programmatic harm that makes advance participation impracticable. The validity of the rule’s substance is separate from the procedural question; the court asks whether waiting for comments would interfere with the functioning of the benefits system itself, not whether the agency had sound policy reasons to act quickly.
In short, the VA’s justification focuses on operational impact and system management. The governing standard focuses on urgency that makes participation infeasible. Whether those align is ultimately a judicial determination, but they address different types of problems: one administrative, one procedural.
Military Service and the Structure of Workplace Protections
Before discussing broader policy trends, it helps to understand the legal environment in which military disability compensation operates. In civilian employment, workplace injury exists inside a network of overlapping accountability systems. An injured worker may rely on safety regulators, civil liability, labor law, and anti-discrimination statutes. Those mechanisms both deter unsafe practices and compensate harm.
Active-duty service members operate under a materially different structure. Courts and Congress have long recognized that military effectiveness depends on centralized command authority and limited judicial intrusion into command decisions. The practical result is that many remedies available to civilians do not exist for service members.
Service members generally cannot sue the federal government for service-related injury under the Federal Tort Claims Act because of the doctrine established in Feres v. United States. Constitutional damages actions against superior officers are also largely barred under Chappell v. Wallace and related cases. Collective bargaining is prohibited by statute, and workplace safety regulation that applies to federal civilian employees does not extend in the same way to military personnel. Taken together, these rules substantially narrow traditional legal avenues of redress for harms arising from military duties.
These limits do not mean the government provides no response to service-incurred harm. Instead, the response is concentrated in a different place. The disability compensation system administered by the Department of Veterans Affairs functions as the primary institutional mechanism through which long-term physical and psychological consequences of service are addressed after separation. Rather than operating alongside tort liability or labor enforcement, the benefits system operates largely in their absence.
In that sense, disability compensation is part of a broader policy balance. The military is permitted to function without many of the external accountability mechanisms that regulate civilian workplaces, and the long-term costs of that structure are managed through a post-service compensation program. A more detailed discussion of the development of these restrictions and their historical context appears in an earlier article on military workplace protections.
Recent Trends Surrounding VA Disability Policy
The current rule change arrives during a transition period for the modern veteran population. The United States is winding down the longest continuous period of armed conflict in its history. Unlike earlier wars, advances in battlefield medicine, evacuation, and protective equipment produced a force in which more service members survived injuries that would previously have been fatal. The human cost of war shifted from battlefield death to long-term disability.
That shift has a predictable institutional consequence. A system designed to compensate service-incurred harm must operate over the lifetime of those survivors. The Department of Veterans Affairs budget reflects that reality. At the start of the Global War on Terror the VA operated at a fraction of its present size. Two decades later, the department administers hundreds of billions of dollars annually in health care and disability compensation. The growth is not solely administrative expansion. It reflects a structural feature of modern warfare: more veterans live with lasting injuries and conditions, and the compensation system persists long after military operations end.
Historically, the public tends to measure war by casualty counts. World War II and Vietnam produced large numbers of deaths relative to the forces deployed. The post-9/11 conflicts produced fewer fatalities but far more long-term medical consequences. The result is a different type of national obligation. The cost is distributed over decades rather than concentrated during the conflict itself.
That long tail connects to the legal framework described earlier. Service members operate in a system with limited avenues to challenge unsafe conditions, negligence, or exposure during service. Because those remedies are constrained, the compensation system carries the burden after separation. The benefits program therefore functions as part of a broader social arrangement: operational flexibility during service is paired with long-term support afterward. The compensation system becomes the mechanism through which the country absorbs the downstream consequences of military policy choices.
Legislative responses illustrate the pattern. The PACT Act created presumptions for disabilities associated with toxic exposures from burn pits during the post-9/11 conflicts and expanded access to medical care. The law required significant political effort and public attention before passage. At the same time, it addressed the consequences of exposure rather than restricting the operational practices that produced it. The structure again placed the long-term effects into the benefits system rather than the operational rules governing the conduct of war.
Public discussion surrounding veterans’ benefits often shifts after conflicts recede from immediate attention. Oversight efforts, fraud investigations, and transparency initiatives are recurring features of large federal programs. Those conversations influence how the public understands the purpose of disability compensation and the scope of the government’s obligations. Policy changes to the rating system occur within that broader environment, where the meaning of compensation, cost, and responsibility are continuously debated.
The present regulatory change therefore exists within overlapping forces: the demographic reality of surviving veterans with long-term conditions, the legal structure that channels remedies into post-service benefits, and public scrutiny over the size and function of the compensation system.
Administrative Consequences of a Treatment-Based Measurement
The revised § 4.10 measures disability at the point where treatment and condition intersect. The evaluation now depends on how a veteran functions while care is in place rather than the underlying severity of the service-connected injury standing alone. That approach assumes something the benefits system does not uniformly provide: stable and continuous access to treatment.
Veterans receive care across uneven conditions. Some rely on fully staffed VA facilities, others depend on community referrals, and many live in rural or overseas locations where access varies significantly. Appointment delays, provider shortages, formulary substitutions, and interruptions in medication supply are recurring features of large health systems. The rating rule presumes a consistent medical baseline, but the healthcare system produces fluctuating ones. When compensation is tied to treated functioning, the disability level becomes partially determined by healthcare logistics rather than the injury itself.
This creates a structural dependency problem. A veteran’s rating effectively reflects three factors: the severity of the service-connected condition, the effectiveness of treatment, and the reliability of access to that treatment. Only the first originates from military service. The others arise from the capacity of the healthcare system. Two veterans with the same injury can therefore present very differently depending on whether they experience appointment gaps, medication interruptions, relocation, or overseas residence. The result is that compensation risks tracking system performance rather than the underlying harm.
The rule also evaluates present functioning as though treatment success will continue indefinitely. Disability compensation, however, is not a guarantee of future care continuity. Providers change, medications are discontinued, side effects develop, and eligibility circumstances shift. A rating based on successful management today assumes the same management tomorrow. The statute compensates lasting impairment from service, not the durability of therapy.
A practical administrative effect follows. If ratings rise and fall with treatment status, then each change in care produces a new disability picture. Effective treatment lowers observable impairment, interruptions increase it, and resumed treatment lowers it again. Because ratings are not automatically recalculated in real time, veterans must repeatedly file for increased evaluations whenever treatment fails or becomes unavailable. The system moves from a relatively stable compensation model to one that requires recurring re-evaluation tied to medical access events.
There is also a financial consequence. Disability compensation functions as a predictable monthly income that many veterans rely upon for housing, food, and stability. If compensation levels begin to fluctuate based on treatment access or temporary effectiveness, that predictability erodes. A veteran could face lower payments during periods of successful treatment and higher payments only after deterioration and a new claim. The practical result is income variability tied to medical logistics rather than to long-term impairment, making financial planning difficult and undermining the stabilizing purpose the compensation system traditionally serves.
The Bureaucratic Ratchet Effect
The practical incentives created by the rule point toward a cycle the system may not be designed to handle. When ratings depend on how a condition appears while successfully treated, many veterans will initially be evaluated at lower levels because medication and structured coping keep symptoms controlled at the time of examination. The first meaningful breakthrough episode then becomes the first moment the record reflects the true severity of the condition. At that point, the rational response is to document the change and file a claim for increase.
That behavior is not gamesmanship. It follows directly from the measurement rule. If compensation is tied to present observable impairment, veterans are incentivized to seek review whenever symptoms temporarily worsen and the record captures it. The result is not a single adjudication but a series of them, each tied to fluctuations in treatment effectiveness.
This produces a ratchet rather than a stable system. A veteran may receive a lower evaluation during periods of successful management, file for an increase when symptoms worsen, obtain a higher rating based on documented impairment, and then return to a managed baseline without any automatic downward adjustment. The agency lacks the capacity to continuously reexamine every improved condition, so ratings are more likely to change upward during documented bad periods than downward during controlled ones.
The administrative burden shifts rather than disappears. Instead of complex initial adjudications about untreated severity, the system absorbs recurring claims triggered by changes in treatment effectiveness. Each breakthrough episode becomes a potential adjudicatory event. Over time this creates more examinations, more staged ratings, and more appeals, driven not by new injuries but by fluctuations inherent to chronic conditions.
There is also a fairness concern within individual cases. A single examination captures a moment in time. Chronic conditions do not present consistently. An evaluation performed on a controlled day may look very different from one performed during a symptomatic period. When compensation hinges on those snapshots, outcomes depend heavily on timing rather than overall disability pattern.
Practical Effects of the Rule and How Veterans Should Document Their Disabilities
The revised § 4.10 directs VA to evaluate a disability as it actually functions in daily life with whatever treatment the veteran uses. The focus therefore shifts from theoretical severity to observed functional limitation over time. Because of that, the record must show what life actually looks like, not just how the condition appears during a single examination.
Breakthrough Symptoms While Medicated
Many conditions continue to produce episodes even with treatment. Those episodes represent the veteran’s real functional capacity.
Veterans should document:
Frequency and duration of episodes
Functional impact such as missed work, inability to drive, inability to concentrate, isolation, or need to lie down
Need for rescue medication, rest, or leaving activities early
Helpful sources include symptom journals, secure messages to providers, urgent visits, employer attendance records, and lay statements from family or coworkers. Examiners should describe these episodes, not only baseline presentation on a stable day.
Loss of Medication Effectiveness Over Time
Treatments often lose effectiveness or require adjustment. The worsening period before adjustment is part of ordinary life functioning.
Record:
Worsening symptoms before dose changes
Delays waiting for new prescriptions
Provider documentation acknowledging tolerance or reduced efficacy
These intervals are not hypothetical. They are part of the veteran’s actual disability pattern.
Required Pauses or Medication Holidays
Some treatments must be stopped for lab monitoring, procedures, or physician instruction. Symptoms during those intervals remain relevant.
Preserve:
Provider instructions to stop medication
Monitoring requirements
Symptom severity during the pause
The regulation measures real functioning, and those unmedicated periods occur in real life.
Side Effects Limiting Treatment
If medication produces cognitive slowing, sedation, dizziness, or other burdens that interfere with daily activity, that burden becomes part of the disability picture.
Document:
Adverse effects
Medication changes due to intolerance
Impact on work or daily activities
The rating reflects functioning with treatment, including the cost of treatment itself.
Electing Not to Take Medication
Veterans are not required to pursue every treatment option. When medication is declined because risks outweigh benefits, the condition should be evaluated as experienced.
Important documentation:
Counseling about risks
Prior failed treatments
Contraindications
Personal statements describing resulting limitations
The examiner should describe observed impairment rather than speculate about improvement.
Variability Over Time
A single examination rarely captures the average condition.
Useful evidence:
Longitudinal treatment history
Logs of bad days
Employer accommodations
Lay observations describing weekly or monthly variation
Avoidance and Self-Restriction of Activities
Functional impairment also includes activities the veteran reasonably stops doing because past episodes show they are likely to trigger symptoms. When a person structures life around preventing episodes, that limitation reflects actual functioning.
Veterans should record activities they no longer attempt or significantly limit, such as:
Avoiding social gatherings due to panic, migraines, or irritability
Limiting driving due to concentration lapses or vertigo
Avoiding exertion due to anticipated pain escalation
Avoiding travel because symptoms are unpredictable
Reducing family participation due to post-activity symptom worsening
Evidence may include personal statements, family observations, prior incidents that led to avoidance, and provider notes discussing coping behaviors. If avoidance is grounded in prior symptoms, it reflects a real limitation even on days symptoms do not manifest.
Secondary Service Connection for Treatment Side Effects
Another practical consequence of the revised § 4.10 is the increased importance of documenting the effects of treatment itself. The regulation directs VA to evaluate disability as it exists with treatment in place. If the treatment necessary to maintain functioning produces additional impairment, that impairment is part of the real disability picture.
VA law has long recognized that a condition caused by treatment for a service-connected disability may itself be service connected. This is called secondary service connection. When medication prescribed for a primary service-connected condition produces a new diagnosable condition or measurable functional impairment, that downstream condition may qualify for compensation.
Common examples include:
Gastrointestinal disorders from anti-inflammatory medications
Cognitive slowing or sedation from psychiatric medications
Sexual dysfunction from antidepressants
Weight gain, metabolic syndrome, or diabetes from certain therapies
Headaches, tremors, or dizziness caused by medication use
Under the revised regulation, treatment effects are no longer conceptually separated from the disability evaluation process. If daily functioning must be maintained through medication, the consequences of that medication exist within the same real-world functional environment the regulation now measures. That makes thorough documentation especially important.
Veterans should preserve:
Pharmacy records showing continuous use
Provider notes discussing side effects
Medication changes due to intolerance
Lay statements describing observable functional impact
Diagnoses that arise after beginning treatment
Where a side effect develops into a chronic condition, a separate claim for secondary service connection may be appropriate. Even when the side effect does not become a separate diagnosis, its functional impact should still be described during examinations because it affects actual daily functioning.
The practical takeaway is straightforward. If maintaining stability requires treatment, and treatment creates additional limitations, those limitations should be recorded.
Some Hypotheticals
Case Study 1 — Psychiatric Stabilization
A veteran with major depressive disorder and bipolar features takes antidepressant and mood-stabilizing medication. The treatment prevents suicidal crises and keeps mood outwardly stable, and during examination the veteran appears calm, oriented, and cooperative. That stability depends on rigid structure. Emotional blunting affects relationships with family, spontaneous activities are avoided because overstimulation destabilizes mood, and periods of elevated mood still produce impulsive spending and overcommitment that must be managed through strict routines. Social interaction is limited because sedation and fatigue reduce tolerance for engagement. The veteran rarely presents in acute crisis, but daily life is organized around preventing one and the range of normal living is significantly narrowed.
Under the old rule: The adjudicator considered the severity of the underlying condition without giving full weight to the masking effect of medication. The history of suicidal ideation, impulse control problems, and major life restriction could support a rating consistent with deficiencies in most areas, often around 70 percent.
Under the new rule: The rating focuses on how the veteran functions while medicated. Because the veteran appears stable, oriented, and capable of basic functioning, the evaluation may resemble reduced reliability rather than severe impairment, often closer to 30–50 percent, even though daily life remains tightly constrained.
Case Study 2 — Pain Controlled by Activity Avoidance
A veteran with a lumbar spine injury uses medication and careful movement to suppress pain. At examination the veteran bends cautiously but nearly fully and reports only mild discomfort. Outside the clinic, the veteran avoids lifting groceries, carrying children, long drives, and most physical recreation because minor strain produces multi-day pain requiring rest. To maintain that level of control, the veteran attends early morning yoga sessions several times a week, takes time off work to make appointments, and pays ongoing costs for supervised stretching and conditioning. These routines reduce symptoms but consume time and income and would not exist without the injury. Employment options remain limited to sedentary work regardless of training, and ordinary activities require constant prevention planning. The condition appears mild only because the veteran actively prevents it from becoming severe.
Under the old rule: Functional loss during ordinary use, including severe episodes when activity increased, was considered without treating medication relief as proof of minimal disability. The pattern of incapacitating pain could support a substantially higher evaluation, often around 40 percent.
Under the new rule: Because the veteran demonstrates near-normal motion while carefully managed, the rating may reflect only the observed capability in controlled conditions, often around 10–20 percent, even though normal activity remains impossible.
Case Study 3 — Condition Managed Through Lifestyle Architecture
A veteran with a chronic inflammatory skin disorder takes medication that suppresses outbreaks most of the time. The skin may appear clear during examination. To keep it clear, the veteran avoids heat, chooses specific clothing, limits exercise to controlled environments, declines outdoor events, and plans travel around climate control. A flare requires days of recovery, so daily behavior is shaped around preventing recurrence. The absence of visible lesions depends on constant environmental management rather than recovery from the condition.
Under the old rule: The rating could consider the history and natural course of the condition when not artificially suppressed, including recurring outbreaks affecting ordinary life, supporting a compensable or higher evaluation such as about 30 percent.
Under the new rule: The evaluation reflects the condition as it appears while controlled. If few lesions are visible at examination, the rating may fall to 0–10 percent, even though the veteran’s daily life remains restricted to prevent recurrence.
What Veterans and Advocates Can Do Now
This rule is already effective, but it is not final. VA published it as an interim final rule and opened a notice-and-comment period. That means the agency is legally required to receive and consider public input before deciding whether to keep, revise, or withdraw the regulation.
Veterans, family members, clinicians, and advocates can submit written comments explaining how the change affects real-world functioning. Useful comments are specific. They should describe how treatment actually works in practice, where access breaks down, how conditions fluctuate over time, and why measuring disability only at moments of successful management may not reflect everyday impairment. Concrete experiences carry more weight than general disagreement because the agency must respond to substantive issues raised in the record.
Comments can also address structural concerns. If the rule alters how severity is evaluated rather than merely clarifying wording, the agency must confront that argument in its final rulemaking explanation. If the framework does not operate predictably across different living situations, treatment availability, or chronic conditions, those concerns belong in the administrative record now rather than after the rule becomes permanent.
In addition to submitting comments, individuals may contact their elected representatives. Congress oversees the Department of Veterans Affairs and receives notice of major rules. Explaining why the change matters to daily life helps inform that oversight function. Communication is most effective when it identifies the practical consequences of the rule rather than only its legal theory.
The comment period therefore serves two purposes. It creates the official record the agency must answer, and it informs policymakers who monitor implementation. Anyone affected by the rule has an opportunity to participate in that process before the regulation is finalized.
Conclusion
The revision to § 4.10 changes more than examination wording. It shifts the measurement point of disability. Instead of focusing on the underlying harm caused by service and how that harm manifests over time, the regulation emphasizes how a veteran appears while treatment successfully controls symptoms. For some conditions those two things align. For many others they do not. A person can live within strict routines, avoid activities, depend on medication, or structure daily life around preventing recurrence while still presenting as stable during an appointment. When compensation tracks only the managed moment, the broader disability picture risks being understated.
That difference carries practical consequences. Ratings may increasingly reflect the effectiveness and availability of treatment rather than the lasting effects of the service-connected condition. Fluctuations in care, medication tolerance, or ordinary variability in chronic illness can become decisive factors in evaluation outcomes. The result is not only a legal change but a lived one, affecting financial stability, expectations about the claims process, and how veterans must document their conditions.
The rule is not yet permanent. The notice-and-comment period is the opportunity to explain where the framework works and where it does not. Submitting detailed comments describing real-world experiences places those concerns into the administrative record the agency must address. Contacting elected representatives informs oversight of how the regulation operates in practice. Participation now shapes the final form of the rule and how it will be applied in the future.
Understanding the change is the first step. Documenting its effects and communicating them through the available channels is the next.
