How VA Can Use Off-Labeling Against Veterans 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 you can not easily get a higher court to over rule a finding of fact by a lower court. This is where so many self represented veterans claims to the FedCir fail, because they want to argue the facts again and the FedCir will not do that. the Veterans Court appears to be a bit more relaxed on this, but the least hurdles you have to clear, the easier it is to win your claim.

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.