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Veterans Law

Protected VA Disability Ratings: What They Are and When They Take Effect

October 11, 2019
Protected VA Disability Ratings_ What They Are and When They Take Effect

What Are VA Disability Ratings?

If a veteran experiences an injury or illness as a result of their military service, they may be eligible for service connection.  When a veteran becomes service connected, VA will issue a disability rating that determines the amount of disability compensation the veteran will receive.

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.

There are some instances where VA may reduce a veteran’s disability rating.  For example, if a veteran’s condition has significantly improved, VA may propose to reduce the rating that was initially assigned.  However, there are also situations in which a veteran may have a protected VA disability rating, meaning that it cannot be reduced by VA.

Protected VA Disability Ratings: When VA Cannot Reduce Ratings

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.  Essentially, some ratings do not need to be periodically re-evaluated after they are assigned.

protected rating, broadly, is any VA disability rating that cannot be reduced or revoked by VA in the future.  There are several types of protected ratings.  Some ratings may become protected after the veteran has been service-connected for a condition for a certain amount of time while others may be protected due to the nature of the condition.

Are There Any Protections Against Reductions for Disability Ratings?

  1. A proposed rating reduction (as well as a final decision) must be based on a review of the veteran’s entire medical history.
  2. VA must show that there has been an actual change in the disability since the last rating decision
  3. VA must show that change in the disability reflects a material improvement in the veteran’s ability to function under the ordinary conditions and stressors of life and work
  4. Examination reports must be based on thorough examinations

Protected VA Disability ratings: 5 year rule, 10 year rule, 20 year rule, 55 year rule

The 5 Year Rule—Stabilized Ratings

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.

VA’s 10 Year Rule

VA cannot sever (terminate) a Veteran’s benefits if they have been rated for that condition for a period of at least 10 years, unless there is evidence of fraud.  VA can, however, reduce a Veteran’s rating in this situation.  VA may reduce if there is medical evidence that the veteran’s condition has improved.

Continuous Ratings: VA’s 20 Year Rule

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 percent disabling and fluctuated between 50 and 70 percent over the next 20 years (without dipping below 50 percent), VA could not reduce the rating below 50 percent.

VA’s 55 Year Rule

Veterans who are over the age of 55 are protected from rating reductions.

Are All 100% VA Ratings Protected?

No, all 100 percent VA disability ratings are not automatically protected.  While some 100 percent ratings are protected in certain instances, not all 100 percent ratings are protected.

The 100% Total VA Ratings Rule

A total disability rating is a 100 percent rating, meaning that the veteran’s condition(s) are fully disabling.  With some exceptions, such as special monthly compensation and aid and attendance, the 100 percent rating is the highest rating a veteran can be granted.

Once a veteran has received the 100 percent, total disability rating, VA cannot reduce the rating unless there is material improvement in the veteran’s condition.  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.  Medical evidence is one way this may be indicated.

Are Permanent and Total Disability Ratings Protected?

In order for a veteran’s rating to be considered both permanent and total, the condition needs to meet the criteria of both qualities.  Here, “permanent” refers to a condition that is assumed to be chronic in nature and not likely to improve.  “Total” means that the maximum rating has been assigned.

permanent and total rating is one where VA does not require the veteran to undergo any further medical examinations.  An example of a condition VA may consider permanently disabled is a single amputation.  In this instance, it is clear that the veteran’s condition will not improve.

However, it is important to note that a permanent and total disability rating is not a protected rating.  While unlikely, VA can reduce the rating, as it would with any other rating, if VA becomes aware of any improvements in the condition.

In most instances, VA assumes that the veteran with a permanent and total disability rating will have to live with a severely debilitating service-connected condition, or the residuals of one, for the rest of their lives.  As such, these veterans should receive VA compensation for the rest of their lives.

Is TDIU Protected?

TDIU, or total disability based on individual unemployability, is a monthly benefit available to veterans who are prevented from gaining or maintaining substantially gainful employment.  This benefit compensates veterans at the 100 percent rating level, even if their combined rating may be less than 100 percent.

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.

Total Disability based on Individual Unemployability TDIU Infographic

What if My Rating is Not Protected?

Some service-connected conditions can improve over time or with treatment.  If this is the case, VA is legally allowed to reduce a disability rating to compensate a veteran for their current level of disability.

How Are VA Ratings Reduced?

VA normally starts the rating reduction process under two circumstances:

  1. Scheduled reexaminations (e.g., C&P Exams) to determine whether benefits should be adjusted. Veterans without permanent ratings are scheduled for reexaminations every 2-5 years; AND
  2. Evidence of change in the veteran’s condition. In this case, VA can order a reexamination at any time if new and relevant evidence arises indicating improvement in condition.

Due Process for Rating Reductions

VA must send veterans a letter proposing a reduction of benefits.  Importantly, there are deadlines to submit responses to these reductions.  Veterans have:

  • 60 days—to submit evidence countering the reduction if they believe it is not warranted
  • 30 days—to request a hearing

VA must consider all previous and new evidence when planning to reduce.  Though these are deadlines, the decision to reduce can be appealed once the deadline has passed.

Other Instances Where Veterans Are Protected from Reexaminations

Aside from the rules listed above, there are instances where veterans are protected from re-examinations.  No periodic reexamination should be scheduled in service-connected cases when:

  • The disability is established as static (not going to change);
  • When the rating is a prescribed scheduled minimum rating; OR
  • Where a disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more condition.

An example of the last situation would be if the veteran has a 10 percent rating as part of many combined ratings.  Reducing or revoking the 10 percent out would not affect the overall combined rating.

VA Disability Rating Reevaluations

Was Your VA Claim Denied?

If your VA Claim has been denied, the experienced team of veterans’ advocates at Chisholm Chisholm & Kilpatrick may be able to help.  Call our office today at 800-544-9144 for a free case review.