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VA Disability 5-Year Rule Explained

VA Disability 5 Year Rule Explained

Video Transcription

Christian McTarnaghan: Hi everyone, and welcome to CCK Live Under 5:00.  My name is Christian McTarnaghan and today, I’m going to be talking about VA’s 5-Year Disability Rule.

VA has a rule that affords veterans protections after they’ve been rated at the same exact disability rating for 5 years.  So, if you have a 30% rating for your post-traumatic stress disorder for 5 years or more, this should apply to you.  So, this is intended to protect veterans from unfair reductions in disability benefits because, after five years, VA considers your rating stabilized, which means it shouldn’t fluctuate up and down.  It should be kind of the same from then on.

So, rating reduction, just like it sounds, is when VA is going to try to reduce your rating because in their view you have gotten better, your disability has become less severe.  So, something important to keep in mind is that for all rating reductions, 5 years or otherwise, VA is supposed to show that your condition has gotten better under the ordinary conditions of daily life and work.

But what’s special about the 5 years, having that same disability level for 5 years or more, is that there are other things that VA is supposed to do before they reduce you.

And so, I’m going to go through sort of the three important things to know about the 5-year rule that can be found in 38 CFR section 3.344, if you care to look it up on the web.

Right.  So, once your disability has been the same for 5 years, VA shouldn’t reduce you on the basis of a single examination.  They need to make sure that it wasn’t a temporary improvement, right?  You go to an exam, maybe you’re feeling good that day.  But VA is supposed to look at least two, so more than one, to make sure it just wasn’t a temporary improvement before they reduce your rating.

VA is also supposed to look at your entire file to determine whether the examination is fully complete.  And also, the third sort of special feature of 3.344 is that VA is not supposed to reduce a veteran based on an examination that is less fully complete than the examination that was used to grant the benefit.

So, despite VA having to look at this law, VA will still propose and reduce some veterans’ disability ratings.  So, what’s going to happen then?  If VA determines a rating reduction may be warranted, they first have to tell you and they have to issue a proposed notice of the reduction.

Now, the proposal doesn’t mean that you’ve been reduced.  It’s just that VA is proposing to reduce you.  Once you get that notice of proposed reduction, you have 30 days to request the hearing.  The hearing will happen within 30 days.  But you got to request it within 30 days and it will happen, you know, once VA gets around to it.  And then you have 60 days to submit evidence after the proposal, basically, you know, trying to show that you shouldn’t be reduced.

So, after the proposed reduction, and if you have the hearing after VA considers the evidence that you submitted if you have it, if VA still thinks that the reduction is necessary, they will issue a rating decision that actually reduces your benefits.

It’s important to stop here for a second because I want to make something really clear.  If you want to disagree, you have to disagree with – or file a Supplemental Claim, Higher-Level review, Notice of Disagreement – with the actual reduction, not the proposed reduction, because it’s the actual reduction that reduces your benefits.  That’s going to give you some appellate rights, or like I said, filing a Supplemental Claim.

It’s important to know these rules because if VA doesn’t follow them, you might have a valid appeal.  And VA has to follow these rules or is supposed to follow these rules, really closely when reducing a rating.  Or else, you know, you might be able to get your rating back if your appeal is successful.

So, this is meant to be short.  That’s all I have for you today.  Thank you very much for tuning in.  As always more information on the topics that we’ve been talking about today can be found on our blog and then some other videos.  And don’t forget to subscribe to our channel.