UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS.
NO. 09-112 (Decided April 11, 2011)

“HAGEL, Judge, joins, concurring in part and dissenting in part: I concur with the majority’s
conclusion that the plain and unambiguous language of 38 U.S.C. § 1722A(a)(1) requires a veteran
to pay a full copayment for a 30-day supply of medication, without regard to the dosage or number
of pills prescribed to the veteran. I write separately, however, to express my disagreement with the
majority’s conclusion that the phrase “cost to the Secretary for medication,” as used in section
1722A(a)(2), is susceptible to more than one interpretation.”

“When a pure question of law, such as the interpretation of a statute, is at issue, the Court
reviews the conclusions of the Board de novo, without deference. Smith v. Gober, 14 Vet.App. 227,
230 (2000). As explained above, after reviewing the language of section 1722A, I would conclude
that the plain and unambiguous language of subsection (a)(2) prohibits the Secretary from requiring
a veteran to pay an amount in excess of the cost to the Secretary for each 30-day supply of
medication furnished to him or her, without regard to the administrative costs incurred by the
Secretary in actually dispensing such medication. I would therefore conclude that the Board’s
interpretation of that provision was arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law. See Kent v. Principi, 389 F.3d 1380, 1384 (2004) (holding that the
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” standard
of review “contemplates de novo review of questions of law”). Accordingly, I would set aside the
Board’s December 2008 decision to the extent that it concluded that the appellant’s copayment was
not excessive under section 1722A(a)(2) and would remand the matter for further development and
readjudication consistent with a proper interpretation of section 1722A(a)(2).

Lastly, I understand that some might say that the interpretation that I express would place
an unnecessary accounting burden on VA. The calculation that I believe the statute requires VA to
make in these instances is, however, routinely made up front by private pharmacies when
determining the profit margin sought on each drug dispensed to their customers. Thus, I do not
believe that such a calculation places an unreasonable burden on VA. As a result, I do not believe
that my interpretation of section 1722A produces an absurd result”.

Can we think of any other consumer industry that would get away with asking end-users to do this? The only reason insurance companies can get away with it is because their clients are corporations, not consumers. It’s this sort of practice that makes people angry enough to reform the industry at the Federal level.

Another example: one of our patients with schizophrenia was discharged with a script requiring he take 3.5 tablets per day. For a syndrome with such inherent adherence problems, this seems like a dangerous practice.

Just a thought: does anyone know what percentage of patients actually take their prescribed meds? (I don’t know and it seems like too much work to pubmed it )

The physician, and NOT some HMO or pharmacist should have the final say in whether or not the patient gets a 10mg tablet or a 20 mg tablet with instructions to split it.

Interesting, education sounds like the key.

That may be true but that defeats the purpose of the extended release dosage form. Once it’s split it becomes immediate release. And that may deliver a higher than optimal dose of medication to the patient immediately vs. over time as intended.