Under certain conditions, VA may reduce your disability rating. Legally, VA is entitled to rating reductions but there are rules they must follow when doing so. But unfortunately, mistakes are still made and VA often does not get rating reductions quite right. So, in this video, we discuss what VA can and cannot do when reducing your rating and what you should do if VA sends notice that your rating may be adjusted.
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Jonathan: Good afternoon, my name is Jonathan Greene. I’m an attorney with the law firm Chisholm Chisholm & Kilpatrick. With me today is Mike Lostritto, also an attorney and Jenna Zellmer. The three of us work primarily in the area of representing disabled veterans. Today, we’re going to talk about rating reductions and we’re going to pause for a second just to allow viewers to catch up and get online.
Jenna: I’m also an attorney, Jon.
Jonathan: I believe I said that, Jenna. But I apologize. Okay hopefully folks have caught up. So again I’m Jonathan Greene and with me is Mike Lostritto and Jenna Zellmer. We are attorneys with the law firm Chisholm Chisholm & Kilpatrick and today what we’re going to talk about is VA’s rating reductions and basically what we’re going to talk about is when you have a disability that is service connected, you get an assigned disability rating. Generally speaking ranging from 0 to 100 and you get a certain amount of money corresponding to that disability rating, and unfortunately the rating that you were assigned can be reduced under certain conditions. So today we’re going to talk about why this occurs; what’s the process for what VA has to go through in order to implement a rating reduction and what you can do in order to fight these proposed rating reductions. So Mike, why don’t you tell us why VA reduces ratings.
Mike: Sure. So in certain situations particularly when it’s expected that the veteran’s condition will improve, the VA will initiate a process to evaluate the condition and potentially reduced the rating so that the veteran is being compensated at their current level of disability. And so there are various procedures and rules that govern the process but primarily VA is trying to make sure that the veteran is being compensated for their current rate or rather there current severity level.
Jonathan: And how does VA initiate this– the process from the start as far implementing the rating reduction?
Mike: So really there are two primary prompts to initiate a rating reduction. The first is if VA receives or obtains new evidence that shows a change in the veteran’s disability condition then what they’ll typically do is based on that information, schedule the veteran for a new examination so that they can reevaluate the condition and potentially reduce the veteran’s – excuse me – reduce the veteran’s condition. The second way would be that if once the veteran’s condition is service connected, VA will evaluate the condition and determine whether they need to at that point schedule the veteran for a future reexamination to at a later date, determine whether the veteran’s condition will improve.
Jonathan: So VA somehow becomes aware of usually medical evidence indicating the severity of the condition warrants a lower rating so they’re not just doing this out of the blue.
Mike: Usually no. They usually will receive new medical evidence, treatment records of some kind or when they rate the disability initially, they will determine that the veteran’s condition may likely improve in the future and they will set a future examination date at that point where the veteran will be reevaluated.
Jenna: And usually that’s noted on the rating decision or on the rating decision code sheet, so a veteran will know that they’re going to have to go to a future exam at some point after they’ve been service connected for a disability and, I think it’s important to note that a veteran can’t simply avoid getting a rating reduction by not going to that future exam. So if you are scheduled for a future exam you should always attend that examination. If you don’t attend that examination, VA will generally reduce it anyway based on your no show status.
Jonathan: And for those of you who don’t know what a code sheet is, a rating decision that comes out has a lot of materials in it, we usually break it up in to three parts. The code sheet is the stuff at the end that lists the disabilities that a veteran’s service connected for, their assigned ratings and the effective dates. It’s got a lot of great information in what we call the code sheet. Jenna, can you help us go through some of the somewhat complicated rules that VA has to follow in order to go through the rating reduction process?
Jenna: So I think it’s important to note that the VA can’t just one day decide that a veteran doesn’t get his 20% rating anymore. There’s a whole process– there’s due process procedures that the VA has to go through in order to allow the veteran to have enough notice and enough time to dispute a proposed rating so the first step is for VA to submit a rating reduction proposal. This is different than a rating decision and so you know, normally when VA submits a rating decision a veteran can file a Notice of Disagreement but a rating reduction proposal is before a rating decision and so rather than submit a Notice of Disagreement if a veteran you know, disagrees that his rating should be reduced, he has 60 days from that proposal date and within the first 30 days of that 60 days a veteran can actually ask for a hearing to discuss the evidence that VA has based its decision to propose a reduction and they can also you know, submit new evidence within those 60 days. And if a veteran submits new evidence, that whole 60-day period starts over so it actually affords you more time if you’ve been proposed a reduction and if you request a hearing within those 30 days, VA can’t reduce anything until that hearing has been held. So there are a few you know ways to delay the reduction process if you think that you need more time to get evidence that your disability hasn’t improved. And then after that proposal then VA will eventually issue a rating decision that, generally, they will actually reduce the disability and from that point a veteran can file a Notice of Disagreement and appeal it up through the VA system just the way they would any other rating decision.
Jonathan: And just to be clear about these proposals, it’s been a point of confusion in the past that where people want to file a Notice of Disagreement of the proposal but that is not procedurally an option so as Jenna said you have 60 days to submit evidence in support of a continuation of your current rating, 30 days to request a hearing but it is not appropriate to file a Notice of Disagreement or what we call an NOD of the proposal. You need to wait, as Jenna said, for a final decision and then you can appeal it through the normal procedural process. So talking about some of the change that needs to be determined, they use the phrasing “actual change” from the last rating decision. Mike, can you talk about that and what that means by “actual change”?
Mike: Sure. So the VA has to follow certain legal standards when it’s deciding whether the veteran’s condition has improved and thus warrants a reduction in the rating. The main legal standard that they must abide by is that they have to show through medical evidence that there’s been an actual change or an actual material improvement in the veteran’s condition. That means that the VA has to show that the veteran’s condition has improved based not only on the results of the VA examination, but also under the ordinary conditions of life and work and those are sometimes two different and separate things which is important to note. I think it’s important also to note that the standard for reaching or rather the requirements that VA has to meet in order to reach that standard is something called ‘preponderance of the evidence standard.” So what that basically means is that where the evidence is equally weighted favorably and negatively against the veteran in terms of whether a proposal is warranted, VA must find in favor of the veteran. The positive evidence for reduction must weigh at least 51% in favor of the reduction so all benefit of the doubt goes to the veteran when weighing this evidence.
Now there are some other you know, rules and regulations that VA must follow when they’re determining whether a reduction is proper. For example, they must consider the entire medical history in record of all of the evidence when deciding these cases. They cannot solely rely on the findings of a C&P or VA examination. They have to consider all of the evidence that the attorney or the representative or the veteran him or herself submits in response, in addition to those findings of a C&P exam.
Jenna: Mike, I think a good example of this is you know, orthopedic conditions. A lot of times a veteran will go to a VA exam and his range of motion will be greater than previously you know, determined so, just because at one examination the veteran’s range of motion meets a certain threshold doesn’t mean that his actual life has improved, his actual function because of that knee or back or whatever the disability is. It’s possible that his range of motion on that day might’ve improved because he had taken medication, he’d gotten a steroid shot, a lot of times that happens and so it’s actually more range of motion than he would normally have in his daily life. And so that’s what’s really important is to for the Board and for the Rating Officer to look at the whole claims file as you mentioned and see if there are other evidence that says you know, just because he had a range of motion on this one day, he actually had more limited range of motion throughout the course of the appeal.
Mike: And I think that that’s a good and to kind of piggyback off that, it’s important to look at the examination that the veteran goes to to determine whether the substance of the exam is as thorough as the initial exam that the veteran had when rating was initially assigned. VA regulations in this area require that the initial or rather the subsequent exam that the veteran receive for any proposal to reduce be at least as thorough as the initial exam that was conducted. If the exam that the VA is relying on to potentially reduce the veteran is less thorough, less complete, less detailed than the initial exam then they will not assign as much probative value to that new exam. And so it’s important to look at the adequacy of the exam in relation to the rest of the evidence of record.
Jonathan: Thank you both. Let’s take a second to pause and just reintroduce. Again my name is Jonathan Greene, I’m with the law firm Chisholm Chisholm & Kilpatrick and with me today are two attorneys also with the firm, Michael Lostritto and Jenna Zellmer. We’re talking about VA rating reductions and I did just want to clarify something, you heard us talking about things called C&P exams, those are Compensations and Pension Exams conducted for the purpose of determining compensation. They are not ordered by VA for the purposes of treating the veteran. They are used to determine something. So moving along, what kind of evidence should a veteran submit if this proposal was in place or to fight rating reduction?
Mike: So as you mentioned a little earlier, although the veteran cannot file a Notice of Disagreement with the proposed reduction, they can and should respond to the proposal and that can take you know, any other form via letter or some other form and they’re allowed to submit evidence in support of the maintenance of their current rating. And so some of the pieces of evidence that we submit and the veteran may submit include lay testimony from maybe an employer, a spouse, the veteran him or herself, and may further include you know, a private medical opinion that shows that the veteran’s condition has not improved. So there are other pieces of evidence that the veteran should obtain and submit in response to a proposed action even though they cannot technically file a Notice of Disagreement with that action.
Jonathan: We have a question from the audience from Bob who asked if VA is able to reduce a rating that’s been in place for over twenty years. The short answer to that question is yes they can and we will get into some of the details of that. I will say for Bob’s benefit that it is much harder for them to reduce after it’s been in place for 20 years but we’ll get into some of the details and some of the protections afforded to veterans who’ve had ratings in place for a period of time. So what if after 60 days or after reviewing the evidence submitted VA makes a final decision to reduce regardless of what has been presented, what can that veteran do about it?
Jenna: So once the VA has made a rating decision that reduces a veteran’s disability rating the veteran should follow the traditional appeal process so that’s first filing a Notice of Disagreement with that decision. VA will issue a Statement of the Case. The veteran can perfect that appeal to the Board and then eventually the Board will review the case de novo and determine whether or not the rating reduction was appropriate. I think the biggest thing that we see when we’re reviewing Board decisions is that the Board treats the case as an increased rating claim rather than a reduction case. So once the case reaches the Board, the Board will look at the rating criteria and the diagnostic code and look at the veteran’s evidence and determine that he doesn’t meet – he or she doesn’t meet the higher rating but that’s the wrong analysis because this is a reduction case, the Board is actually supposed to be assuming that the veteran’s rating, the current rating or before it was reduced rating was appropriate and looking whether or not if there is actually a material improvement, which is what Mike mentioned earlier. So that’s what a lot of times what we see happen after the VA has actually reduced a rating.
Mike: And I would just add on to that and say that while the veteran clearly has the ability to appeal all the way up to court in these type of proposed actions, it’s important to note that if there is a final rating– if there is a rating decision after the proposed proposal process then the reduction will go in to place at that point, the veteran’s benefits will be reduced so I think it’s important to try to fight these actions in the proposal stage before there’s a rating decision and you have to go through the appellate process because at that point like a I said your reduction will go in to effect and your benefits will be reduced until you hopefully successfully fight that in court.
Jonathan: So Jenna you just mentioned something interesting about them treating it as though it’s an increased rating claim and I have a question. So if a reduction has been in place and they’ve actually reduced let’s say a psychiatric rating from a 50 to a 30 and it is being disputed so the veteran has appealed that decision, what if evidence is presented showing that not only was the reduction inappropriate but actually that veteran is entitled to a 70% disability rating. Will they grant the increase if the evidence does show that that is the appropriate rating?
Jenna: That’s a good question, I don’t think so. But you might have a different experience. I have never seen that happen. Generally, if you’re at the Board level, the Board is just looking at a very narrow issue. It’s whether or not the rating reduction was appropriate. So often times the Board will use the wrong analysis but they’re not going to go beyond that scope and say not only was it, not only was the reduction not appropriate but he actually warrants a higher rating, I think that they might– the Board might you know refer that back to the Regional Office or remand that back to the Regional Office to determine, you know whether or not a higher rating at some point the evidence raised entitlement to a higher rating claim and then they would have to adjudicate that increase rating but if you’ve had a different experience, I’m not sure.
Jonathan: I think that it is a little bit of a tricky area because usually you’re focused on the issue at hand. But I know that we do like to take advantage of the situation and kind of make lemons– lemonade out of lemons and say that okay, you want to try and reduce this rating? Look at this evidence and actually turn it into an increased rating claim and we have had some success in getting those turned around, so it is–
Jenna: I think it’d depend on the Board judge and the Regional Office.
Jonathan: Exactly, as a lot of things.
Jonathan: And but it is important to note that if the evidence is there then go for it and don’t just limit yourself to getting the rating restored, but actually argue for entitlement to a higher rating. Are there certain types of conditions that are more vulnerable to reduction? We’ve talked about a couple of things here, we’ve talked about orthopedic conditions, a little bit about psychiatric conditions. Where do you commonly see this type of stuff?
Mike: I see this very commonly in malignancy cases, so cancer cases. According to VA, they often think these are conditions which can likely improve with treatment in the future and so they will oftentimes schedule reexaminations for the condition. So we oftentimes see those reduced from a 100% rating down to maybe a 20% rating which is a significant, unfortunately a significant loss to the veteran financially and so any type of case also– certain diagnostic codes require reexamination of particular conditions. So any diagnostic code that by its very nature requires reexamination is something to look out for because you know that VA at some point in the future is going to be reevaluating your condition.
Jonathan: So cancer I definitely would agree with that. Active cancer you see a lot of 100% ratings and then it goes into remission, they drop them to a noncompensable rating. How about in the psychiatric area?
Jenna: I think it depends– so a lot of psychiatric conditions are episodic and so a veteran will you know, be granted service connection and are 100% rating because his you know, schizophrenia or some other type of acquired psychiatric disorder is currently active and severe. But you know there are times where those disabilities improve temporarily or you know, go into remission and so we do see that a lot where the veteran has been hospitalized for a certain amount of time because of a psychiatric condition. He gets treatment and then he is functioning normally or less severely than he was originally when he was granted the higher rating and so that is an area where reduction is possible.
Jonathan: And while we’re talking about these conditions getting better, please keep in mind that it’s also possible to have a rating in place and then file for an increase for that rating because it’s actually gotten worse. That might seem obvious but I’m sure that there’s some folks out there that might not understand that that in the psychiatric realm we often see it where things are at a certain level and then a change in life occurs, the veteran retires for example and then suddenly things get a lot worse and then they at that point should seek possibly getting an increased rating for their condition. So what is a stabilized rating according to the VA?
Mike: So, the definition of a stabilized rating according to the VA is a condition that’s been service connected obviously, and has been continuously rated for 5 years or more at the same level. And so there are special rules that govern these type of conditions that are actually beneficial to the veteran. So if you’re a veteran that has a service-connected conditions that’s been rated for 5 years or more at the same disability level, you– in order, well VA in order to reduce that particular rating must show what’s called “sustained improvement”, that’s the standard. Which is a heightened standard a higher level standard for the VA to meet than the “material improvement standard’ for normal conditions of less than 5 years of being continuously rated. Basically what this means is that VA is not allowed to reduce a stabilized rating based on the results of one examine– one’s compensation and pension examination. What they would need to do is order potentially a second reexamination to make sure that the condition actually has shown sustained improvement over a period of time. So like I said it’s, it’s more protection for the veteran once they reach that 5 year mark for their rating.
Jonathan: Thanks Mike and I know that we see this a lot so keep that mind that you get the 5 years, they try to reduce based on one C&P exam, it’s a no brainer argument that they’re not allowed to do that. Now we had previously been asked by Bob from our audience about continuous rating of 20 years. What does that – what sort of protection does that give a veteran, Jenna?
Jenna: So once a veteran has been rated at the same level for 20 years, that’s what you mentioned, continuous or protected rating, the only way the VA can reduce a rating that’s been in place for 20 years is by demonstrating that that original rating was obtained by fraud. So if you have a rating that you’ve had for 20 years, you should be pretty safe, assuming you’re on the up and up.
Jonathan: And now let’s talk a little bit about 100% ratings. So you hear about permanent and total status which means something but in the VA realm what does it mean specifically?
Mike: So permanent and total is a term of art that VA uses for conditions that have been, 1.) determined to usually be at a 100% level so they are total in that sense, totally disabling, and 2.) they must be permanent. What permanent means is that the VA determines that there is, you know it’s not reasonably certain that the condition is going to improve over the period of the remainder of the veteran’s life. So one thing the VA is allowed to consider in this particular area is the veteran’s age. So we see that younger veterans have a little bit more difficult time of potentially showing permanency because the VA can consider that they you know, there may be actually a reasonable likelihood of improvement over the remainder that– period of the veterans life. And so if the veteran does obtain a permanent and total status then their ratings are not going to be subject to a reduction so that’s added protection to the veteran.
Jonathan: Okay so what that means is, VA’s really going to leave these people alone?
Mike: Yeah, for sure.
Jonathan: They’re not going to be scheduling any exams, they’re going to continue to get their rating and unless something comes to VA’s attention in the form of may – let’s say another claim out there where another exam reveals something for the most part that ratings going to stay in place.
Mike: Yeah, this is something that you know if a veteran can achieve a permanent and total status that’s certainly something desirable because as you said VA hopefully will leave them alone and not look to reduce the rating.
Jonathan: And where do you– how do you know– you’ve got a 100% rating. How do you know it’s considered permanent and total? Because not all 100% ratings are automatically permanent and total. So where do you kind of see it in the documents?
Mike: Yeah so when you receive your rating decision that assigns you your rating, it could be listed in a couple different areas and depending on the Regional Office it could be listed in a couple different methods or ways. So one way to determine whether you are permanent and total is that sometimes there’s an area on the rating decision that the veteran, or rather that the VA, will check to indicate that you have reached a permanent and total status. If that is not there, some Regional Offices don’t do it that way, if that’s not there another method to determine this is to take a look and see whether the VA included any language that said your eligible for DEA benefits which is a benefit that’s only awarded to veterans who have reached a permanent and total status.
Jenna: DEA stands for Dependents Educational Assistance.
Mike: Yes and also there’s you know, sometimes you’ll see on rating decisions that the VA will say no future examination will be scheduled. So that’s an indication to the veteran also that their rating is considered permanent and total, they’re not going to be subject to future examinations and they should be safe.
Jonathan: Okay thank you. And what is a temporary and total status?
Mike: So a temporary and total status basically means that the veteran is rated at 100%, so they are totally disabled, but unlike being permanent and total, their status is temporary. That means that they are subject to reevaluation and potentially reduction of their 100% total rating. We see this a lot in cases where veterans been hospitalized for 21 days or longer for a service-connected condition. So in those circumstances they would be eligible for a temporary total rating of 100% for the period that they are hospitalized and for a 6 month period after they are released from their hospitalization. So again, you know, these are subject to reductions because there is a likelihood that their condition will improve after their treatment has concluded.
Jenna: Generally, it just goes back to the same rating that the veteran had prior to his hospitalization.
Jonathan: We have another question. If a veteran has a 100% disability rating but is not permanent and total, can they file an appeal to get the permanent and total rating? So yeah I was going to ask can you just request that your – that your disability rating be considered permanent and total?
Mike: You absolutely can and if you think you have evidence to warrant that you should absolutely try to do that. It would be beneficial to obtain medical evidence to help prove that but you absolutely can appeal, you can send in a letter to the VA if you want even requesting that your disability be rated permanent and total and as we were you know, discussing earlier that gives significant advantages to a veteran. So that’s something, you know that we would likely look into for our clients.
Jonathan: So you can ask for it. I mean you can definitely ask for anything you want, doesn’t necessarily mean you’re going to get it but there is a tangible benefit to be granted permanent and total status as Jenna and Mike both mentioned that you get the Dependents Educational Assistance, there’s things in there, so you could actually appeal for it. So if the disability rating was reduced in the past and that reduction you know, so that reduction actually became final and was not appealed. Can you do anything about it now? We’re thinking of–
Jenna: We’re thinking of CUE claims.
Jenna: So the answer is yes but it’s going to be a little bit difficult. So once a rating decision has become final and the veteran has not appealed that rating decision, the only way you can reopen that claim is to demonstrate that there’s clear and unmistakable evidence that the VA, that the Regional Office was wrong in its previous decision.
Jonathan: Right. So you’re essentially filing what we call a CUE claim, the C U E, Clear and Unmistakable Error in that prior decision. CUE in and of itself is a complicated topic that will probably do a Facebook Live session all about CUE but it’s not easy but if you can demonstrate that they used the wrong standard when they implemented the reduction then you might be able to get that rating restored and not only restored today but restored from when it was implemented, going back years at times. So anytime that you see a rating reduction in the past, do not be discouraged by the fact that it’s an old rating decision that became final so it was not appealed because you, that’s usually when you’re thinking of CUE, oftentimes you’re talking about rating reductions because that’s the – that’s the best opportunity for getting a CUE granted. And then we also wanted to talk about appeals to the Court of Appeals for Veterans Claims, so if you have an appeal at the Court of Appeals for Veterans Claims and Jenna is our CAVC guru, could that affect your rating?
Jenna: So no. The filing of an appeal at the Court does not affect the rating directly at all. I think a lot of times veterans when I speak to them about their appeal to court are worried that VA is going to retaliate somehow because they’re appealing to the Court and the short answer is that most of the time VA actually doesn’t even know a veteran has an appeal to the Court. So no the VA won’t retaliate but if an appeal to the Court is successful, generally what will happen is the case will get remanded back to the Board. So a lot of times if we’re dealing with an increased rating claim, for example, and the case goes back to the Board, the Board is going to look at all the evidence again and if there’s any evidence of improvement, it’s possible that the Board might you know find that rating reduction proposal is warranted but you know it’s not something that’s automatic that they’re going to do in every case just because a case has been at court, they’re going to need evidence and they’re going to have to go through that whole procedural process that we talked about earlier so that’s the short and long answer.
Jonathan: I think that’s a great point. I wouldn’t– for those of you out there who are concerned about any sort of retaliation because you are trying to appeal something whether it’s appeal a decision from the rating, the Regional Office or from the Board to Federal Court. I wouldn’t concern yourself with that, I’ve never really seen any evidence of folks at the– employed at the VA, looking at these appeals and looking for opportunities to retaliate, you know these are avenues available to you and we would encourage you to take them all the way up to Federal Court if necessary. We have another question from Faith. It says the husband has his Notice of Disagreement, but when we filed first they had him file with just one condition, but it wasn’t. Should we file on his other conditions while we have an NOD on file? So I believe what this is asking is, can the appeal be amended to include the other conditions that were in some way denied? It’s going to depend on where you were at in terms of when the rating decision was issued if we’re still within the year or within the year of the rating decision then we could file and say we disagree not just with what was originally appealed but also with the other issues listed there but if you’re outside of the year then, the issues that were not appealed will be made final. I don’t know if you guys had anything to add to that.
Jenna: Yeah I would just encourage you reach out to your representative and talk about the specifics of the case, and I think just because you know if we are outside of the year, that doesn’t mean that we can’t you know, make a new claim for an increased rating and or for a service connection claim depending on what it is, if you know there is merit to that appeal, so there are a couple different options.
Jonathan: Okay I think that that’s – that about wraps it up and I would encourage folks out there to check us out on our website at CCK-law.com, tons of great information you can find not just about VA rating reductions but about all the other topics to help you navigate this complicated world of the VA claims process, so thank you both for joining us today and keep fighting.