VA Disability 100% Rule
The U.S. Department of Veterans Affairs (VA) has certain rules and regulations in place to protect veterans from unfair rating reductions. One of these rules is the VA disability 100% rule.
What Are 100% Disability Ratings?
With some exceptions, such as special monthly compensation and aid and attendance, a 100 percent rating, or total disability rating, is the highest rating available to veterans. It is reserved for veterans with extremely debilitating service-connected conditions that prevent them from working or completing daily tasks.
Types of 100% Ratings and How to Qualify
100% Schedular Disability Ratings
A veteran can qualify for a 100 percent schedular disability rating if they have:
- A 100 percent rating based on one disability alone; or
- A combined disability rating of 100 percent, meaning the combination of their individual disability ratings total to 100 percent.
Total Disability Based on Individual Unemployability (TDIU)
Total disability based on individual unemployability, or TDIU, is awarded to veterans who are unable to obtain and maintain substantially gainful employment due to their service-connected conditions. TDIU allows veterans to be compensated at the 100 percent rate if their combined disability rating is less than a 100 percent schedular rating.
To qualify for TDIU, veterans typically must have:
- One service-connected condition rated at 60 percent or higher; or
- A combined disability rating of at least 70 percent, with one condition rated at least 40 percent disabling.
Veterans who do not meet these requirements but are still unable to work due to their service-connected conditions may be able to qualify for TDIU on an extraschedular basis.
Permanent and Total (P&T) Disability Ratings
VA grants Permanent and Total disability, or P&T, to veterans whose service-connected conditions are considered total (rated 100 percent disabling) and permanent (zero or close to zero chance of improvement).
If a veteran’s 100 percent disability rating is considered permanent, it will typically be indicated in the decision letter. In some rating decisions, there is a permanent and total box that will be checked. In others, there may be language such as “eligibility to Dependents Chapter 35 DEA/CHAMPVA are established” or “no future exams are scheduled” – both of which indicate permanence.
What is the VA Disability 100% Rule?
The VA disability 100 percent rule states that if a veteran is assigned a 100 percent rating, the rating cannot be reduced unless material evidence indicates that the veteran’s service-connected condition has significantly improved. Here, VA must provide evidence showing substantial improvement in the veteran’s ability to function on a day-to-day basis.
When Can VA Reduce a 100% Rating?
If VA decides that there has been significant improvement in the veteran’s 100 percent disabling condition, it can propose a rating reduction. A proposed rating reduction must be based on a review of the veteran’s entire medical history and, as mentioned above, material evidence showing substantial improvement in the veteran’s daily life.
Based on this evidence, VA can then issue a notice, or letter, proposing the rating reduction.
Can TDIU Be Reduced?
VA can only revoke TDIU status if the veteran has been found to be capable of substantially gainful employment. For employment to be considered substantially gainful, the veteran needs to have been employed for at least 12 executive months and earning over the federal poverty line.
Can P&T Disability Ratings Be Reduced?
In most instances, VA assumes that veterans with permanent and total disability ratings will have to live with severely debilitating service-connected conditions, or their residuals, for the rest of their lives. As such, these veterans are usually not required to undergo any further medical examinations and will continue to receive VA compensation for the rest of their lives.
However, while unlikely, there are certain instances in which a P&T rating can be reduced if VA becomes aware of any improvements in the condition.
How to Challenge a VA Rating Reduction
Upon receiving the proposed rating reduction notice, veterans have:
- 60 days to submit evidence countering the reduction if they believe it is not warranted; and
- 30 days to request a hearing.
If a veteran chooses to request a hearing, VA cannot issue a new rating decision until the hearing is held. This allows the veteran additional time to submit new evidence. However, requesting a hearing is not necessary to challenge a VA proposed rating reduction – veterans can also simply submit new evidence within 60 days.
If, after this process, VA sends a final decision that reduces the veteran’s disability rating, the veteran can still appeal VA’s rating reduction by requesting a Higher-Level Review, submitting a Supplemental Claim, or filing a Notice of Disagreement.
How CCK Can Help You Fight a VA Rating Reduction
Appealing a rating reduction can be challenging. If VA reduces your disability rating even though your condition has not improved, Chisholm Chisholm & Kilpatrick may be able to help. The veterans’ advocates at CCK have decades of experience successfully appealing VA decisions on behalf of veterans.
To schedule a free case review, call CCK or submit this form today.
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