U.S. Department of Veterans Affairs Issues Dangerous New Interim Disability Adjudication Rule
- Combat Veterans of America
- 10 hours ago
- 7 min read
Updated: 6 hours ago
On February 17, 2026, the Department of Veterans Affairs issued an Interim Final Rule amending 38 CFR 4.10, immediately changing how disability ratings account for the effects of medication and treatment. The rule directs VA adjudicators to evaluate veterans based on their present level of functioning with medication in place, rather than considering the severity of the underlying condition absent treatment. VA characterizes the change as a clarification of longstanding policy and a necessary response to recent Ingram v. Collins, 38 Vet. App. 130 (2025). The agency made the rule effective upon publication, invoking good cause to bypass prior notice and comment, while opening a sixty day post publication comment period. Simply put, this substantial change to Functional Impairment that will likely affect millions of veterans was published without public input—beyond the lobbyists behind the scenes who pushed for this.
Before reading any further about the serious second and third-order effects of VA's Interim Final Rule, there are a few things you can do:
Contact your Congressman and your Senator.
Contact the U.S. House of Veterans' Affairs & Senate Veterans' Affairs Committees.
Contact your VSO. Combat Veterans of America is laser-focused on this issue but there are legacy Veterans Service Organizations who too are already working this, and they will need your testimonies. For example, Disabled American Veterans' concerns.
Submit a Public Comment to the VA through its link (open through April 20, 2026).
Contact an attorney that specializes in VA disability.
Don't know what to write? Just write from the heart...CVOA has provided a template letter you can use to start and simply fill out. Remember, you do not have to identify yourself unless you want to—VA regularly accepts anonymous comments. Download above.
A Compensation Standard That Encourages Self Harm
By tying disability compensation strictly to medicated functioning, this Interim Final Rule risks pressuring veterans to demonstrate untreated severity during examinations by not taking their medications or to question continued compliance with treatment before evaluations. Put another way, when the government tells a veteran that compensation will be measured by how well the condition appears while medicated, it implicitly signals that visible, untreated impairment is what counts toward disability. That implicit signal is extraordinarily dangerous.
Take a veteran rated for treatment resistant major depressive disorder (MDD) with passive suicidal ideation that is partially controlled by daily medication. On treatment, she can hold herself together long enough to present as coherent during a thirty-minute evaluation. Off medication, the suicidal thoughts intensify, concentration collapses, and basic functioning deteriorates. Under the VA's Interim Final Rule, the rating follows the medicated presentation, not the unmedicated future presentation. The underlying severity that reemerges when treatment lapses does not factor unless it is visible at the time of the exam.
Pharmacological Stability and Its Clinical Limits
It is beyond obvious that a layperson lobbyist—not a medical doctor—wrote this Interim Final Rule because it fixates on the political issue (“…(4) cause an overall increase in compensation expenditures based on a disability level that veterans are not actually experiencing.”) 91 Fed. Reg. 7120 (Feb. 17, 2026), while completely ignoring the medical issue of remission, which interestingly enough is not mentioned a single time by the VA in its Interim Final Rule. The word “actually” is a dead giveaway that the VA's unprofessional, lay language was written by a lobbyist. Lawyers know this writing style as "persuasive."
The VA—and its lobbyists—speak at great length about their fiscal concerns about compensation expenditures but remain noticeably silent on relapse rates, treatment resistance, medication instability, and long-term management of psychiatric illness. This Administration's priorities are crystal clear. This is a partisan fiscal containment measure dressed up as medical clarification.
The clinical literature does not support the VA's assumption that psychiatric medication produces stable, uniform remission that can be cleanly equated with reduced disability.
In a systematic review published in the Journal of Clinical Psychiatry, remission rates after switching antidepressants ranged from 7 percent to 82 percent, and the number of prior antidepressant treatments was negatively correlated with treatment outcome. Dropout rates due to side effects ranged from 5 percent to 39 percent. Henricus G. Ruhé et al., Switching Antidepressants After a First Selective Serotonin Reuptake Inhibitor in Major Depressive Disorder: A Systematic Review, 67 J. Clin. Psychiatry 1836 to 1855 (2006).
Published as recently as 2022 by the Journal of Affective Disorders,
Despite advances in pharmacological and non-pharmacological treatments for depression, strategies to improve treatment-resistant depression (TRD) continue to be inadequate, leading to poor outcomes and functional impairment (Fava, 2003; Fekadu et al., 2009; Malhi et al., 2005). Despite more than 25 FDA approved medications for major depressive disorder (MDD), TRD continues to be highly prevalent, with more than 30% of patients failing to achieve remission despite an adequate pharmacotherapeutic trial (Berlim and Turecki, 2007b; Rush et al., 2006).J Affect Disord. 2022 Jan 2;302:385–400. doi: 10.1016/j.jad.2021.12.134
Even a distinguished U.S. Department of Veterans Affairs attorney stated, in her personal capacity,
This change risks sending the wrong message to veterans, especially those managing mental health conditions: that improving your health could come at the cost of your benefits.
No one should have to choose between financial stability and getting better. Veterans deserve a system that supports recovery, not penalizes it.
Bypassing Notice and Comment on a Major Economic Rule
The Department did not issue this as a proposed rule. It did not solicit advance input from clinicians, veterans, legal practitioners, medical associations, or the public at large. Instead, it invoked the narrow “good cause” exception under 5 U.S.C. 553(b)(B), made the rule immediately effective, and only then opened a post hoc comment period.
Veterans Affairs Department's Roy Johnson, Chief Economist, Office of Regulatory Oversight and Management, stated in part,
Based on VA’s estimate for the C&P transfer savings, 93,256 veterans would have received an increased or higher initial disability rating in 2026 under the Ingram decision compared to their ratings under this rulemaking . . . The total economic impact is estimated to be savings of $1.9 billion in 2026, $12.1 billion over five years, and $23.2 billion over 10 years, as detailed in Table 1 below. Transfer savings are estimated to be $1.6 billion in 2026, $10.9 billion over five years, and $22.0 billion over 10 years. Full Report attached.
At the same time, the Office of Information and Regulatory Affairs (OIRA) determined that this is a major rule likely to have an annual economic effect exceeding one hundred million dollars. The RIN is already closed for further review. In other words, the VA bypassed front-end notice and comment on an economically significant rule affecting hundreds of thousands of disability claims, then invited public input as an after-thought.
(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B)
However, some federal courts have described 5 U.S.C. 553(b)(B) as to be a narrowly construed exception. Agencies should not invoke good cause merely because notice to the public and ability to comment would be inconvenient, time consuming—or as here—politically difficult. Administrative burden, fiscal impact, or disagreement with a court ruling should not be enough.
In a notable dissent in Biden v. Missouri, 142 S. Ct. 647 (2022), Justice Alito, joined by Justice Thomas, Justice Gorsuch, and Justice Barrett, stated in part,
Under our Constitution, the authority to make laws that impose obligations on the American people is conferred on Congress, whose Members are elected by the people. Elected representatives solicit the views of their constituents, listen to their complaints and requests, and make a great effort to accommodate their concerns. Today, however, most federal law is not made by Congress. It comes in the form of rules issued by unelected administrators. In order to give individuals and entities who may be seriously impacted by agency rules at least some opportunity to make their views heard and to have them given serious consideration, Congress has clearly required that agencies comply with basic procedural safeguards. Except in rare cases, an agency must provide public notice of proposed rules, 5 U. S. C. § 553(b); the public must be given the opportunity to comment on those proposals, § 553(c); and if the agency issues the rule, it must address concerns raised during the notice-and-comment process. United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 252 (CA2 1977); see also Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The rule may then be challenged in court, and the court may declare the rule unlawful if these procedures have not been followed.
Which leaves us with a unique option only available to licensed attorneys representing the interests of veterans likely to be directly affected by this Interim Final Rule. Under the Administrative Procedure Act, affected parties may challenge agency action not in accordance with law. Where an agency invokes the narrow good cause exception to bypass advance notice and comment on a rule it simultaneously characterizes as economically significant, that procedural decision itself becomes subject to judicial review. Law firms representing veterans whose ratings are reduced, denied, or materially affected under this amended standard may seek review in federal court, arguing that the Department failed to satisfy the statutory requirements of 5 U.S.C. 553(b)(B), failed to adequately justify immediate effectiveness under 5 U.S.C. 553(d), or failed to provide reasoned decision making supported by substantial evidence in the administrative record.
Experts
Here are a few of the folks already publicly engaged on this issue, part of what is likely to become a growing list of professionals hotly analyzing this Interim Final Rule and its effects. This list does not establish an attorney client relationship, does not constitute a referral or endorsement, and is provided solely to illustrate that many talented and professionals are already tracking and evaluating this issue. Updated as of Feb. 17, 2026.
