January 12, 2019
We get this question too frequently from our veteran clients. The short answer is “yes”, if the VA follows its own guidelines and procedures. However, there are instances where a veteran’s rating is protected and CANNOT be reduced. In these instances, it is helpful to have an experienced VA attorney assist you through the process.
Disability ratings which continue for 5 years or more require the VA to prove that the veteran’s situation has improved on a sustained basis before a reduction can be made. What does “sustained improvement” mean? It means the VA must show that you are improving and not just temporarily. The VA must point to a specific reason based upon your medical records, C&P exams or any other additional evidence contained in your file. The threshold for a reduction is higher than the VA citing to just one piece of evidence. The VA must be able to show that your condition has permanently improved.
Once a veteran hits the 20 year mark, the VA is prohibited from reducing the rating. The only exception to this rule is if the disability rating was obtained through fraud. The 20 year mark also applies to instances where the veteran receives an earlier effective date. For example, a veteran is receiving 20% for a back condition and is seeking a higher disability rating. The Regional Office grants the veteran’s rating increase, awards the veteran a 40% rating, with an earlier effective date back 20 years – that 40% rating is now protected and cannot be reduced. The same rule applies to a combined rating if the veteran has been receiving a combined rating for more than 20 years.
HOW CAN THEY REDUCE MY RATING?
Disability compensation is designed to compensate the veteran for their current level of disability. Within your Rating Decision there should be a disclosure which alerts you to the fact that your disability is not considered permanent. Thus, the VA will routinely re-evaluate the veteran’s condition to see if his/her condition has improved.
I RECEIVED A LETTER FROM THE VA PROPOSING A REDUCTION IN MY BENEFITS, NOW WHAT?
Prior to the VA reducing your disability rating, you will receive a letter from the VA proposing a rating reduction or request you to submit to a reexamination. It is imperative that you attend this examination. If you fail to show, the VA can reduce or terminate your rating without any additional warning.
After the notification has been sent, the veteran has 60 days to submit a response prior to a final decision being issued. During this timeframe you may submit additional evidence for the reviewer to consider. You are also entitled to request a predetermination hearing conducted by VA personnel; however, your request must be made within the first 30 days. If the outcome is an unfavorable one and a final decision has been rendered, you may file a formal Notice of Disagreement.
If you receive a notice from the VA that suggest a reduction in your rating or a notice of reexamination, give us a call to help you. If it is found that the reduction is not warranted, you will be able to be reinstated back to the original rating date.