Protected VA Disability Ratings: What They Are and When They Take Effect
What Are VA Disability Ratings?
A VA disability rating is a percentage assigned to a service-connected disability based on the severity of the condition. VA uses the VA Schedule for Rating Disabilities (VASRD) to assign diagnostic codes and disability ratings for service-connected conditions. The VASRD is located in Part 4 of Title 38 in the United States Code of Federal Regulations. The VASRD explains how conditions will be evaluated for purposes of receiving a VA disability rating. Each rating criteria will describe symptoms and/or treatment for the specific condition, and VA will assign a percentage, ranging from 0 to 100, according to each set of criteria. Overall, VA disability ratings are meant to compensate veterans for the average impairment in earning capacity caused by their service-connected condition(s). Generally, the more severe a disability is, the higher the VA disability rating will be.
What is a Protected VA Disability Rating?
Congress has determined that under certain conditions it is not necessary for VA to expend resources to check on a veteran’s service-connected condition. As a result, some disability ratings can become “protected.” A protected rating is a VA disability rating that cannot be reduced or revoked by VA in the future. There are several types of protected ratings, including the following:
Stabilized Ratings: 5 Years or More
Any rating that has remained at the same level for five years or longer is considered “stabilized.” In addition to the general rating reduction rules that VA must follow, VA must show sustained improvement in your condition, which essentially means two things: (1) VA cannot use just one re-examination to show “sustained” improvement. Rather, it must show through medical records as well as a C&P re-examination that you are not just temporarily experiencing improvement; or (2) VA must show that the evidence in your claims file predominantly demonstrates “sustained” improvement. VA must provide an explanation of why they are reasonably certain that your condition will continue to show sustained improvement.
100% Total Ratings
VA can reduce a total rating (i.e. 100% disability rating) only if there is material improvement in the veteran’s condition. In addition to the general rating reduction rules, VA must provide evidence that the veteran’s condition has improved such that there has been an observable change in their ability to function under the conditions of daily life.
Continuous Ratings: 20 years or more
Service-connected conditions that have been rated at or above a certain disability rating level for 20 years or longer are considered “continuous.” VA cannot reduce a continuous rating below the original rating level (unless they determine the rating was based on fraud). For example, if a veteran’s service-connected depression was originally rated at 50% disabling and fluctuated between 50% and 70% over the next 20 years (without dipping below 50%), VA could not reduce the rating below 50%.
Are Permanent and Total Disability Ratings Protected?
A permanent and total (P&T) rating is not a protected rating. Here, “permanent” means that the condition is assumed to be chronic in nature and not likely to improve. “Total” means that the maximum rating has been assigned. As a result, VA will not schedule a P&T claimant for routine medical examinations; however, if VA becomes aware of any improvements in the condition, a P&T rating can be reduced just like any other.
Is TDIU Protected?
For veterans that have been granted entitlement to total disability based on individual unemployability (TDIU), VA can only revoke TDIU status if “actual employability is established by clear and convincing evidence” (38 CFR § 3.343(c)). In other words, VA can only sever your TDIU status if you have been found to be capable of substantially gainful employment. It is important to note that in order for the employment to be substantially gainful, the veteran would have had to be employed for at least 12 consecutive months and earning over the federal poverty threshold.
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