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Protected VA Disability

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Christian McTarnaghan: Hello everyone and welcome to another edition of CCK Live. My name is Christian McTarnaghan and today, I am joined by Nick Briggs and Rachel Foster. We are going to be talking about protected VA Disability Ratings. Right off the bat, we just want to draw one quick distinction. There is a difference between stage ratings, which is when you have two different ratings for two different time periods and when VA tries to reduce your rating. We have information about stage ratings on our website, but we just wanted to make clear that today. We are focusing on just reducing ratings. Let us get right into it. So, right off the bat, Rachel. What does it mean to have a stage rating in VA Law?

Rachel Foster: Essentially, once an evaluation is established the longer the veteran is entitled to that evaluation. The more protections are in place to safeguard their evaluation. When it comes to reducing the veteran’s disability, there are certain considerations that VA has to take into account and also additionally, steps that they have to take. Whenever they see that there is improvement in a disability on the veteran’s condition, they have to ensure that the disability is actually taking place and that it is able to be sustained under the ordinary conditions of life and work. One of the primary things the VA has to consider when they are about to reduce a veteran’s disability is just making sure that they are taking into account their entire industrial medical history, not just a single examination in isolation, but also the symptoms not only presently but previously recorded in their file.

Rachel: Second, they have to make sure that the VA examination that they are basing a reduction on is full and complete. It should not be any less complete or any less thorough than the examination that was used to grant the veteran benefits or to continue their current evaluation. They also have to make sure that the disability is not subject to temporary improvement just by the nature of what it is. So, for example, if it is an asthma disability or skin condition where it can be exacerbated or have flare-ups essentially based on the change in seasons. VA should not be reducing that disability based on one single examination. Then really the underlying question, which as at the heart of reduction cases, it is different with increased evaluation where the VA is essentially saying “Does this veteran’s disability meet the specific diagnostic criteria under the diagnostic code, but is there improvement? And if there is improvement, is it sustained under the ordinary conditions of life and work?” That really is a different question because VA should be viewing the disability from the perspective of the veteran and their ability to seek work or to work. What that means is it just symptom management or is it actually symptom improvement?

Rachel: If a veteran, for example, has a psychiatric condition or Orthopedic conditions that are exacerbated because they are working in a job that requires them to interact with people on a day-to-day basis, which causes additional anxiety and stress as well as standing for prolonged periods of time, which can cause severe symptoms for their Orthopedic conditions if they are no longer working. It is not necessary an improvement in symptoms, it is just symptom management. If they are able to now rest when they were previously had to be working and have those additional demands and expectations placed on them. That is really the heart of the question that VA has to answer and show by the preponderance of evidence before they go ahead and reduce a veteran’s disability evaluation.

Christian: Thank you very much, Rachel. Those are all sort of the considerations that VA has to undertake when they are going to reduce a rating, and a lot of those things that you noted apply to all ratings irrespective of how long you have been service-connected for it. One of the things that we want to turn to now and we are going to get Nick Briggs’ impression of these further protections. But based on how long you have been service-connected, there is a little bit of a change in what VA needs to do and how and whether they can reduce a rating.

Nick Briggs: Exactly. Like Rachel talked about a lot of what we have mentioned so far, our baseline protections that apply to all ratings and the procedures that VA needs to follow before it can reduce. But the longer a rating has been in place or service connection has been in place, there are additional protections that kick in at certain mile markers. First, there are stabilized ratings which utilize a five-year rule. If a condition has remained at the same level of severity for five years or more, there are special protections related to what evidence VA can use to reduce. Like Rachel mentioned, they need to be able to demonstrate sustained improvement using medical records and a re-examination and that improvement needs to be shown in the normal circumstances of life and work. The sustained improvement also needs to be the type of improvement that is expected to continue. It is not really meant to be a temporary relief of symptoms like Rachel mentioned, but the big thing that kicks in add five years is that VA cannot rely on a single VA examination to reduce. In these situations, if a veteran has a rating for five years or more and then schedule a re-examination, even if the results of that one particular examination do not support the current reading, they still need to look at other evidence to determine whether or not it is actual improvement as opposed to just a fluke of range of motion measurements on a particular day. As we move down the line and a rating or service connection is in place for 10 years, another level of protection kicks in where if a veteran has been service-connected for a condition for 10 years or more, VA cannot terminate or sever service connection for that condition unless there is evidence of fraud. In that situation, unless there is some evidence that the veteran willingly either lied to VA or provided false information, service connection is going to be protected at that 10 years.

Christian: Quickly, Nick. That is about severance or completely cutting it off, right? As if we would not be service-connected for that disability at all anymore.

Nick: Yes. Now I will say that there is one important caveat to mention there. And that is the situation where VA might try and basically do a de facto severance by saying that there might be some new diagnosis that is not service connected and reducing a veteran to zero percent. That is kind of a distinction without a difference because at the end of the day it has the same net effect. They are saying that the condition is not service connected anymore. We will talk a bit later about what it means for a diagnosis’ change and how it should affect the rating, but for purposes of the 10-year rule we are really talking about severance of service connection versus reductions and preservation of ratings generally. It is important to note though that reductions are still allowed at this point. So, for ratings that has been in place for ten years, they can still go through all of the motions that they went through in the five-year context showing, using medical evidence and VA exams that their sustained improvement that is likely to continue. In these situations, the ratings itself is not quite protected yet but service connection is.

Christian: Great. And so now, we turn to twenty years, which is I think why Nick was making very careful to explain the distinction between severance and reduction at ten because when it gets to twenty years VA cannot reduce your rate unless of course, there is always a caveat unless it is based on fraud. Right? If you have a service-connected knee condition, it has been rated at thirty percent for twenty years in a day, twenty-two years and you have somehow and for some reason, you get a new C&P exam, that C&P exam shows improvement under the ordinary conditions of life and work. These findings cannot be used to reduce your rating to let us say a ten percent rating. Something also to bear in mind about the twenty-year rule, the ten-year rule, and the five-year rule is it applies to Retroactive Awards. Let us say you have been fighting a service connection claim or rating for however many years, ten years, and you get the rating, and then it has been in effect for ten years based on the effect of the date you get. The ten-year protections more importantly would apply to your case. Another thing that we wanted to know is that combined ratings after twenty years are protected as well. Something we also wanted all of you to be aware of is a lot of times like Nick mentioned, there are ways where the VA will find changes in conditions for symptoms for symptomatology and it is at regulations for thirteen. Not that you need to know that, but it advises VA that they really need to be sure that there has been an actual change in the condition. It is not just a difference in the thoroughness of the examinations and basically, the whole goal here is to reconcile and continue the diagnosis or ideology with a service-connected disability after it has been granted. Anything Rachel or Nick that you wanted to add on that?

Nick: I will say that one example we have seen happens often in the context of acquired psychiatric disabilities, where a veteran might be rated at fifty percent for PTSD and major depressive disorder. They get scheduled for review examination and rather than diagnosed with the service-connected disability, the examiner might diagnose something else like a personality disorder or an alcohol abuse disorder. And because in a vacuum those sorts of things cannot be service-connected, they often try and reduce and/or sever the condition because they are no longer diagnosed with PTSD. But in those situations, it is especially important to make sure that they are considering the long history of diagnosis that preceded that most recent exam to make sure that they are not making any mistakes on the diagnosis and rating.

Christian: Just to know that once you attain the age of fifty-five or older, there are also certain additional protections that you are forwarded. Rachel, there are also special rules for one hundred percent or total ratings, right?

Rachel: Yes. It is essentially the same question. VA should not be reducing those evaluations unless they have clear evidence that there has been an improvement. Again, if there is an improvement, can it be sustained under the ordinary conditions of life and work? When it comes to you one hundred percent evaluations as well, they can be determined permanent in nature, which is not the same type of protection that we are talking about, but it is an additional safeguard for that evaluation. Essentially, when VA has determined that a veteran is not only totally disabled but permanently disabled, it means that they do not expect the veteran’s condition to improve. They are not going to be calling them in for a new examination every three to five years to see if there is any improvement. That being said they can still call a veteran in for an exam if there are claims or appeals that are pending and in those situations, if they do see evidence of improvement they can then proposed to reduce based on the information that they receive.

Christian: I think that is really important to note because I definitely have some clients that have called me and said “They are trying to reduce my permanent and total rating. What is going on? I thought permanent is permanent.” Unfortunately, it does not but there are these different steps that the VA has to go through in order to reduce even a permanent total rating. Another way to get to a hundred percent rating is a TDIU rating, unemployability rating. Are those protected, Nick?

Nick: First, like you mentioned, there are situations where a veteran will be granted at the one hundred percent rate even if they do not have a combined one hundred percent rating, and that is when they are found to be unable to secure and follow substantially gainful employment due to their service-connected conditions. Once that TDIU findings has been reached, VA’s only supposed to reduce and get rid of the TDIU rating if they are able to show that there is clear and convincing evidence of the veteran’s ability to secure and follow gainful employment. As we know, there is a benefit of the doubt where VA is supposed to afford the veterans the benefit of the doubt. We are talking about at least as likely as not standard 50/50. Clear and convincing evidence is meant to be a far higher standard than what would normally be used to grant TDIU in the first place, for instance. Although we do not quite know what clear and convincing evidence looks like there is another component of the regulation that specifically provides for situations where a veteran has TDIU and they are able to go back to work. The regulation states that the TDIU rating may not be reduced solely on the basis of having secured that employment unless it is maintained for a period of twelve consecutive months. You imagine a situation where a veteran has TDIU, they go back to work. It is gainful work, remember, because marginal employment is not going to be gainful employment. If they are eventually able to maintain that employment for twelve months, that is a situation where VA can finally say “Hey, this veteran is clearly employable. We are going to discontinue their TDIU benefits at this point. While we do not have the clearest indication in the worlds of what clear and convincing evidence means, we do know that at the very least if a veteran returns to work, they need to maintain it for twelve months and it needs to be gainful for VA to then turn around and take their TDIU benefits away.

Christian: One of the things that we just want to make clear is that there are different levels of protection that your rating gets based on five years, ten years, twenty years, permanent and total, TDIU. I guess the question really becomes and a question that a lot of my clients have asked, “Well, what if I am four years and 363 days?” Well, that is not five years. The court has been very clear that five years means five years and it is a static five years, meaning you have to have the rating throughout the whole five-year period. But if you are under that five-year mark, some service connected conditions do improve over time, and VA is by law allowed to reduce those ratings to your current level of disability. But like Rachel mentioned at the beginning of this talk, they still have to make sure that they are looking to see not just whether based on the rating criteria you have gotten better, but whether your condition has improved under the ordinary conditions of life and work. We are going to sound like a broken record, I think, saying that but that is the most important concept when it comes to reductions. A lot of you might be asking “How does this whole process start?” A lot of times this process starts with a re-examination and those should help VA or those are intended to help VA understand whether your benefits should be changed. Veterans without permanent and total ratings, without that additional protection, on average probably get exams two to five years. Also, of course, there can always be other evidence in the record that shows improvement under the ordinary conditions of life and work, like your treatment records and things like that. We have CCK Live on rating reductions and re-evaluations if you really want more in-depth, more specific information on that. But we just wanted to touch on that a little bit during this talk just to let you guys know and let everyone be aware of that. Another part of this whole process is under certain circumstances, VA has a duty to tell you that they are going to reduce you, that they are intending on reducing your rating. Do you want to talk a little bit about the due process requirements for reductions, Rachel?

Rachel: Sure. Because it is an adverse decision that could potentially reduce the veteran’s overall monthly compensation, VA has to follow the due process and give veterans not only notice but time to respond. They have to of course notify the veteran in writing and the veteran has 30 days to request a hearing in 60 days to submit evidence in showing why the reduction should not take place before the VA makes a decision. Now just as a side note, I mentioned that if there was going to be a change in the veteran’s monthly compensation in cases where there is not going to be a change in the monthly compensation, the regional office does not have to abide by those same rules. But once that reduction days does take place and the rating board issues a final decision reducing the veteran’s compensation, they can still appeal. They have appeal rights in order to initiate the process and get review by higher level review, by the board or they can keep it with the agency of original jurisdiction.

Christian: Nick, you want to let us know about some other instances where veterans are protected from reexaminations?

Nick: Sure. Like we talked about before, there are certain conditions that are expected to improve. One of the most common examples, though not one that we are really talking about today, is the idea of an active cancer where they are assigned that one hundred percent rating, and then they go back again for follow up examinations to determine whether or not it is still active. But there are other disabilities where, for one reason or another, they are considered static, meaning they are not expected to improve only to get worse essentially. In those situations, if a veteran’s disability is considered to be static, be it a severe back disability or the amputation of the limb where you are getting the rating for the amputation. That is it. They will not usually schedule you for re-examination in those situations. Another situation or example is where a rating is assigned the minimum rating. For example, if you have pain in your elbow due to degenerative joint disease, you are going to get that minimum ten percent rating for painful motion in the joint and they are not going to schedule you for a re-examination because you already have that minimum rating. They are not going to be able to reduce it to a non-compensable rating. And then finally, they are not supposed to schedule you for re-examinations in situations where the reduction of one condition would not change the overall combined rating. Imagine a scenario where a veteran has a fifty percent rating for PTSD, ten percent rating for tinnitus and ten percent rating for that aforementioned elbow condition because the veterans combined rating is going to be sixty regardless of whether or not the tinnitus or the elbow is reduced. They are not going to schedule re-examinations of either of those two conditions because it is not going to affect the veteran’s overall combined rating.

Christian: Great. Thanks, Nick. Before we leave everyone today, we usually like to provide some final words or final pieces of advice for the audience. Rachel, do you have anything that you would like to leave them with?

Rachel: You have that opportunity to respond once VA  proposes to reduce and it depends on a lot of different factors. So, take advantage especially if you feel that the reduction is improper. Take advantage of that thirty-day window for hearing or the sixty-day window to submit medical evidence and explain why, not only maybe there is an improvement but how you would not be able to sustain that improvement if you had to go back into the workforce or had to do additional activities that you have actually not been doing because they have been exacerbating or aggravating your symptoms.

Christian: Anything to add, Nick?

Nick: Yes. Just that one of the more common situations where we see reductions occur specifically with Orthopedic disabilities because the rating schedule is based largely on range of motion measurements. A veteran might have a forty percent rating for their back because their forward flexion was limited to twenty degrees. But if they go in and show up for a re-examination and they measure range of motion at forty-five, fifty degrees, they really should not be reducing the veteran’s condition based solely off of that decreased range of motion. At the end of the day, if the veteran is still experiencing pain, if it is still causing the same sorts of limitations in their ability to walk, to stand, to sit, so on and so forth. It really cannot be said that it actually improved under the ordinary conditions of life and work. And because this is the most common situation where they tend to reduce the veteran’s rating, a veteran should be aware of it and to make sure that they are not relying purely on those range of motion measurements when they do go to reduce.

Christian: Yeah, absolutely. That is really good advice because that happens all the time. All the time. One last piece of advice that I leave you with is go to these re-examinations. You are going to be frustrated, I can appreciate that but you are not going to gain the system and not be reduced just because you did not go to an exam and they did not get the information that they wanted. In those situations, it is not guaranteed but without that evidence it is still possible that they are going to deny your objection to the reduction. So, you still might be reduced. That is probably my piece of advice that I give on all of these talks, but I stand by it. Thank you very much for joining us today and be sure to keep up with us. Check out Facebook, Instagram, Twitter and YouTube for the latest updates, news and videos. Thanks a lot.