Many veterans fear having their ratings reduced. But what goes into a VA rating reduction on your benefits?
If the VA finds that the veteran’s disability has decreased in severity, then a VA rating reduction may be proposed. In some cases, they may even terminate the service-connected status entirely. However, the VA is only allowed to reduce a veteran’s disability rating under certain circumstances and when allowed by law. There are legal requirements to meet and the VA has the responsibility to prove that the VA rating reduction is warranted.
There are some situations where the veteran’s rating is protected and the VA is prohibited from reducing a rating (unless there was fraud on the veteran’s part). A protected rating guarantees the veteran benefits at a certain minimum level for the rest of the veteran’s life.
In other cases, there are certain requirements to meet before the VA can lawfully reduce a disability rating level. If the requirements are not met, the benefits that were improperly reduced have to be reinstated.
When are my ratings protected from reduction?
- A rating that has been in effect for 5 years or more
If a rating has continued at the same level for five years or more, it is considered “stabilized.” It doesn’t matter what the rating is, it may not be reduced unless all of the evidence of record shows sustained improvement in the disability. This means that the VA is not allowed to base its decision to reduce your ratings on just one examination. If one C&P exam is taken out in isolation from the rest of the record, and that one exam says that the disability has improved while the rest of the records do not show that, the VA cannot base their proposal of a VA rating reduction on that one exam. The VA must always consider the entire medical history of the disability when considering whether to reduce a rating. The VA must review the entire record of examinations and medical history to know if the recent exam is full and complete. If it’s not a thorough evaluation, it cannot be used as a basis for reduction. If the disability can have temporary or episodic improvement, it won’t be reduced based on one exam. But if the record clearly shows that there is sustained improvement, then it can be reduced. The VA will have to look and see if the improvement will be maintained under the ordinary conditions of life.
- 20 years of continuous rating
If a disability has been rated at a particular level for twenty years or more, the VA cannot reduce the rating below that level. The only exception to this is if there was fraud. If the rating fluctuated for twenty years, it can’t be reduced below whatever the lowest rating was during those twenty years. If you were given a retroactive increase, like the VA made a mistake in your rating and the effective date goes back twenty years, then that rating is protected. In this case, it doesn’t matter if the disability has changed.
- Total disability evaluations
If a veteran has been granted total disability rating through 100%, in order to reduce the rating, the VA has to decide whether there has been material improvement in the condition. Without an examination confirming this, the VA cannot reduce the veteran’s rating. The VA has to look at both the evidence that warranted the 100% evaluation, and the evidence it’s using to reduce the rating. If there has been no improvement at all since the date of that last examination, the VA cannot reduce. The keyword is “material improvement.” It doesn’t matter if there has been some improvement; the question is whether that improvement has been “material.” It doesn’t matter if your symptoms still meet the 100% rating criteria; it only matters if the condition has materially improved. If the veteran was rated at 100% and a reduction is warranted, the veteran can still qualify for TDIU. Under TDIU, the VA may not reduce the benefits unless the evidence is clear and convincing that the veteran is capable of actual employability.
What if my VA rating is not protected?
There are still some rules the VA has to apply when trying to reduce your rating that may help you:
- Any proposed VA rating reduction must be based on a review of the entire history of the veteran’s disability (not just one C&P exam)
- The VA has to consider whether there has been an actual change in the disability
- A rating cannot be based only on whether the condition has improved, but whether the veteran’s ability to function under the ordinary conditions of life and work have improved
- Any exam showing a reduction must be thorough
If the VA does not follow these rules, the reduction is not valid. When the reduction is not valid, the VA must reinstate the rating.
How do VA rating reductions happen?
When the VA wants to reduce your rating, they must give you notice of the proposed VA rating reduction. That notice must be specific enough for you to know why your rating is being reduced. Then they must give you at least 60 days after the notice to submit evidence showing why it should not be reduced. You also have 30 days to request a hearing, where the proposal will not be implemented until after the hearing, buying you a little bit more time to submit the evidence you need. If you don’t request a hearing and you don’t submit evidence within those 60 days, a final rating decision will be issued reducing the benefits. The reduction will then take place another 60 days later, taking effect on the last day of that month.
Source: Melanie Franco, Attorney , Hill & Ponton Disability Attorneys