Rating Reductions: What VA Can and Cannot Do

CCK Law: Our Vital Role in Veterans Law

VA is legally entitled to issue rating reductions under certain conditions. When VA reduces a veteran’s service-connected disability rating, it can be overwhelming. However, there are rules VA must follow when deciding to reduce a disability rating.

Unfortunately, VA does not always get these rating reductions correct. Mistakes are made. In this article, CCK Law will discuss:

• What VA can and cannot do when reducing a rating
• What veterans should do if VA sends a notice that their rating is being adjusted
• Special cases that are protected from rating reductions

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Why Does VA Reduce Ratings?

VA wants to ensure they are compensating each veteran according to their present level of disability since some service-connected conditions can improve over time with treatment. For example, if a veteran had a service-connected cancer that goes into remission, VA could propose a rating reduction. This rating reduction would be proposed under the assumption that the veteran’s cancer is less disabling. In other words, the cancer has less of an impact on their ability to function in life and at work.

VA normally starts the process of reducing a rating under two circumstances:

• Scheduled re-examinations. Usually, VA will evaluate (after you are granted service-connection) whether your disability should be scheduled for a future re-examination (a C&P exam) to determine if your benefits need to be adjusted. VA usually makes this determination if it believes your disability can be expected to improve. Typically, the first re-exam will be scheduled 2-5 years from the date of your first Rating Decision.
• Evidence of change in condition. VA can also order a re-examination at any time if there is new, relevant medical evidence that your disability has improved.

Yet disabilities are complicated. Symptoms of a disability may temporarily decrease, but they can resume at a baseline level soon thereafter, too. Likewise, symptoms may improve but not enough to materially (i.e., significantly) improve the veteran’s ability to function under normal stressors of life or work. Therefore, there are strict rules guiding the rating reductions process. However, as mentioned earlier, these guidelines are not always applied correctly. So, it is beneficial to understand what VA is required to do.

Rules VA Must Follow Before Reducing a Rating

There are several things VA must do when reducing ratings. These rules include:

• A proposed rating (as well as a final decision) must be based on a review of the veteran’s entire medical history
• VA must show that there has been an actual change in the disability since the last rating decision
• VA must show that the 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
• Examination reports must be based on thorough examinations

Additionally, the procedural manual (M21) that VA adjudicators use to process claims states that VA must outline the period during which the condition is said to have (materially) improved.

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What to Do If You Receive a Rating Reduction Notice

If the decrease will affect the amount of monthly compensation you receive, then VA is required to send a letter proposing the reduction of the benefits. The letter is not a final VA decision, and it cannot be appealed. VA gives you the opportunity to respond to the proposal by submitting evidence and/or attending a hearing.

From the date of the letter, you have 60 days to submit evidence if you believe the reduction is not warranted. Within the first 30 days of the 60-day period, you have the option to request a hearing to be conducted by VA personnel unrelated to the proposed reduction. VA must consider evidence you submit during this period (including the transcript of the hearing, if you choose to attend one) and all previous evidence and medical records associated with your file.

What Types of Evidence Can a Veteran Submit?

You do not need to submit treatment records from your VA Medical Center since VA already has access to those documents. However, it can be helpful to submit a medical opinion from an outside, independent doctor if your Compensation and Pension exam was not favorable. Additionally, you may want to submit statements from family, friends, or employers who have observed your ability to function in daily life and/or at work. If you choose not to submit evidence within the 60 days, then VA will issue a final decision reducing your rating.

If, after 60 days or the review of your submitted evidence, VA sends a final decision that reduces your rating, you can file an appeal with a Notice of Disagreement form.

Protected Ratings: When VA Cannot Lower Your Rating

For certain special cases, there are rules in place that protect veterans from rating reductions or severance of their disability benefits.

Stabilized Ratings: 5 Years or More

Any rating that has remained at the same level for 5 years or longer is considered “stabilized.” In addition to the general rating reduction rules that VA must follow (see above), VA must show sustained improvement in your condition.

What does sustained improvement mean? Essentially, it means one of two things: Either 1) VA cannot use just one re-examination (C&P exam) to show “sustained” improvement; rather, they must show through medical records as well as a C&P re-exam that you are not just temporarily experiencing improvement. Or, 2) VA must show that the evidence in your file predominantly demonstrates “sustained.”

VA must provide an explanation of why they are reasonably certain your condition will continue to show “sustained” improvement.

100% (Total) Ratings

VA can reduce a total rating (that is, a rating of 100%) only if there is material improvement in the veteran’s condition. In addition to the general rating reduction rules, VA must provide evidence that your condition has improved such that there has been an observable change in your ability to function under the conditions of daily life.

Continuous Ratings: 20 Years or More

Conditions that have been rated at or above a certain rating level for 20 years or longer are considered “continuous.” VA cannot reduce a continuous rating below the original rating level (unless it determines the rating was based on fraud). For example, if a veteran’s service-connected PTSD was originally rated 30% disabling and fluctuated between 30% and 70% over the next 20 years (without dipping below 30%), VA could not reduce the rating to below 30 percent.

Contact Chisholm Chisholm & Kilpatrick Today for a free case evaluation.

VA rating reductions can be overwhelming. If your VA disability rating has been improperly reduced, our team of experienced attorneys may be able to help you. Contact our office today for a free case evaluation at (800) 544-9144.