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VA Disability Rating Reevaluations

VA Disability Rating Reevaluations

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Video Transcription:

Christian: Good afternoon and welcome to another edition of Facebook Live from Chisholm Chisholm and Kilpatrick. Today, we’re talking about VA rating re-evaluations and I’m joined by Lindy and Michelle. So, let’s just jump right in. So, I think before we talk about re-evaluations and how maybe reductions work, I think we should start with the discussion about how sort of ratings work in general. So, Lindy, do you maybe want to give us a little bit of an understanding about how VA rates disabilities?

Lindy:  Yes. So, first of all, veterans will apply for something called service connection and service connection basically just means that you are proving that your current disability is due to service. So, you’ll need a diagnosis. You’ll need proof of some sort of event in service and then a medical nexus opinion kind of linking them all together. But once service connection is granted, you will be assigned a rating and that rating is used to indicate the severity of your service-connected condition. Typically, not typically, always, the monthly rating or that combined rating that you have does indicate the amount of monthly compensation that you receive. So if you’re combined for 10%, that’s about $140 a month. But if you’re combined at 100%, that’s over $3,000 a month. So, it’s a really big difference depending on what your rating is. You can have multiple ratings that combine to one and, as everyone knows, VA math is a little wonky. But that combined rating does indicate what your monthly compensation will be.

Christian: And we have other Facebook lives about service connection that goes more in-depth, increased ratings which go more in-depth and some posts as well but we’re going to leave that part of our conversation there. So once VA establishes a rating, VA may determine or might tell you, or might just be a part of the rules, whether there’s going to be re-evaluation. So Michelle, do you want to talk a little bit about re-evaluations?

Michelle: Yes. So sometimes a rating isn’t considered permanent and total. VA will usually tell you in your rating decision when they award maybe service connection or an increased rating, they’ll tell you that your rating is subject to re-examination and they’ll usually tell you a time premise to when you’re going to be re-examined. There are various reasons why VA might do it. Maybe because you have cancer and your cancer is currently active. Most of the time, most cancers don’t remain active so they will reschedule to see if it goes into remission. Sometimes you’re going to have surgery on maybe like a back condition that’s service-connected or you just had surgery and they want to see if it improved since that surgery occurred or after it does occur. So those are some times where they might choose to re-evaluate it.

Christian: So in terms of timing when they hopefully– the RO or the VA will tell you this– but maybe just talk a little bit generally about what timing of a re-evaluation might look like.

Lindy: Yes. So usually, it’s about two to five years after you’re first evaluated. That’s kind of generally what we see. But also, there’s a circumstance where maybe you were in service and you were injured while you’re in service and you were medically discharged, let’s say you had a back injury and you’re medically discharged. So they’ll actually schedule you about six months after you’ve been discharged just to make sure that that disability was properly rated, that it hasn’t improved. Maybe it was really bad at the time but there’s evidence to suggest that it’s gotten better with treatment. So that’s about the 6-month mark after discharge. But more than that, if VA receives any sort of evidence of a material change or material improvement, they will schedule you for a re-evaluation.

Christian: So, once that re-evaluation happens, what would the re-evaluation need to show? And then what might VA do about that?  So if there is a material, some sort of improvement, right? We’re going to get a re-evaluation, the VA gets that examination, it shows improvement. What might VA do next?

Michelle: So when they schedule the examination, it goes back to the adjudicators to look at to see what the results are and, like Christian had said, it could show improvement. What they’re supposed to do is they’re supposed to take the examination and also the evidence of record, including treatment records, lay evidence, whatever it may be that is showing the same period, and weigh it as a whole to see if the improvement is considered not just from one examination but based on all the evidence. If they do determine that all the evidence shows improvement, what they’ll do is they’ll send notice to propose to reduce your benefits. One thing to be mindful of, if the reduction wouldn’t change your overall combined rating, VA isn’t going to send a notice or a proposal. They’re actually just going to send notice of a reduction because they only have to provide you a due process period if it’s going to change your overall compensation.

Christian: Do you maybe want to describe the difference between a proposal and an actual reduction?

Michelle: Sure.

Christian: Because I can imagine the confusion when you get a proposal, you think it might be reduced but that’s not actually the case. So maybe you want to explain that a little bit more.

Michelle: Yes, sure. Of course. So usually VA will send a notice that says that “At this point in time, we’re proposing to reduce your”–let’s say it was cancer and it was maybe prostate cancer. “We’re proposing to reduce your prostate cancer from a hundred to 60% because it’s no longer active and it’s showing to be on remission.”  So that would be a proposal. They send a notice and when they send a notice, they give you 60 days to respond. You can’t actually appeal the proposal, you can only respond. They’ll also give you 30 days to request a hearing in response to the proposal to reduce. If they are reducing you, you’ll get a formal rating decision with appellate rights where we’ll be able to say instead of their proposing to reduce you, the language would actually they’ve reduced your condition. So maybe it’s something where you’re already at a hundred percent and you had a back condition rated at 40, and now, they’re bringing it down to 20, and it’s not changing your overall combined rating. They’ll say, “At this point in time, we’re reducing your back condition from 40% to 20%” and there’s no proposal. At that point in time, you have the right to appeal.

Christian:  And this might also apply to stage ratings. That gets a little bit more complicated because they might propose to reduce you for a certain part of time where another part of the time would stay the same. So just as always, and I think this is the advice we give often, make sure to really thoroughly read what VA is sending you. Understand maybe which time period, if it’s a staged rating, and by stage rating I mean you might be higher or lower for two years and then, you know, or lower for two years or higher for two years, or vice versa. It just means there are different ratings for the same disability at different time periods. So and then, you can bring it to some sort of advocate that might be able to help you understand because these do tend to get a little bit complicated.

Michelle:  Yes.

Lindy:  I was just going to add that when we’re talking about material change, we always advise our clients to be really careful about what you’re filing for. If you want to file a claim, say your service-connected for a knee condition and you think it’s gotten worse. So, you file an increased rating claim for your knee. Always keep in mind that you are risking a potential reduction just because you think it’s gotten worse and I’m sure, it probably has but when you get rescheduled for an exam, oftentimes VA can look at it and say, “Oh no. You haven’t gone worse. You have gotten better.” And they’ll reduce it. So, we often just FYI to our clients that there is a risk of a reduction every time you file an increased rating claim or really any claim.

Christian:  Yes, absolutely.  That’s great advice. So, we sort of gone through what might seem like the whole process. And so, now, we’re going to take a little bit of a step back and go into a little bit more detail. So, Michelle, are there some situations where VA won’t reschedule or schedule a veteran for re-examination?

Michelle:  Yes. Typically, if a veteran is considered permanent and total, they’re not supposed to be scheduling you for a new examination but as Lindy has kind of mentioned, if you are permanent and total, and let’s say you filed for an increased rating or you filed for a condition that might actually re-evaluate that it’s permanent and total because you could have unemployability because of your back condition and you filed for an increased rating for your back condition. Now, you’re asking VA to re-examine your back condition. You’re opening the door for VA to possibly reduce you at that point in time. Typically, if a veteran is over the age of 55, they will not schedule a veteran to be re-examined unless there are circumstances that are not normal. A lot of times, if a veteran is already up in minimum rating, it’s not typical that they’re going to re-evaluate. They’re going to say that a veteran needs to be re-evaluated because there might be some improvement. Those are usually some circumstances where we usually see them. Sometimes also, if you’re– they’d be called static disability. So, you have an amputation. You’re not going to have that limb come back so VA is not going to re-examine to re-attach that. So, those are kind of some circumstances.

Christian: And, one thing to be mindful of, I know that sometimes where you have to go to be examined can be far away. Sometimes the time might not be very convenient but you need to go to your re-examination. I think that’s a piece of advice that we give whenever we’re talking about exams because there’s a whole list of rules that VA can use against you if you don’t go for these re-examinations that might just lead to being reduced immediately without any further reconsideration. So, it’s always a good idea to go to these examinations and deal with whatever might happen in the exam, sort of after the fact. So, there are certain types of ratings. We just talked about when VA can get a re-examination, right? But there’s a whole other set of rules that VA has about when a rating is protected. So, Lindy. Do you want to talk a little bit about what that means?

Lindy:  Sure. So, like Christian said, there are a couple of circumstances where depending on your rating, and maybe how long you’ve had that rating, you are not able to be re-evaluated or reduced. And so the first–

Christian:  So, why don’t  you talk about a hundred percent, and then five years, and then Michelle you’re going to do 10 and 20.

Michelle:  Okay.

Lindy:  Yes. I’ll be talking for a long time.

Lindy:  Okay. So the first situation is 100% rating. So, say–

Christian:  So you’ll say a little bit of a hint as to what the ratings are.

Lindy:  Yes, that’s okay we need a road map. So, the first situation would be a 100% rating. So, say you’re rated 100% for a psychiatric condition. There must be material improvement shown in order to be reduced. And so, material improvement basically means that that improvement has to be substantial and has to be under the conditions of ordinary life. And so, I would try to think of an example. So, maybe when you are rated 100% for that psychiatric condition, you, maybe, lost ties with family and friends, you were not working, you had really severe psychiatric symptoms. But maybe, over time, a material improvement would be something like you are now working full time or in a relationship. You’ve developed family ties again. You are involved in local organizations, whatever that may be. That would show material improvement in everyday life. So, not just one exam. It would have to be really overall strong evidence to show that you’ve improved drastically.

Christian: Yes, and just a quick comment on that. One of the things that I see a lot in my practice is when VA is looking at material improvement, what they’re doing is they’re doing the increased rating analysis in reverse.  And, what I mean by that, is they’re looking to see, well, what symptoms does the veteran have now? Where do those symptoms align with the rating criteria and if it aligns with the rating criteria that are lower than the rating assigned, they might reduce. And that’s a violation of the law. That’s not really looking like you were saying, Lindy, to everything to see whether there was material improvement under the ordinary conditions of daily life. That’s like the phrase that’s ingrained in all of us because that’s the test. So, what about the five years.

Lindy: Sure. So, if you have that same rating for five years, then VA must show sustained improvement and that means, they can’t rely on one examination. So, say you go for an examination. Again, let’s say psychiatric disability and maybe in that one exam, you noted that you have been hanging out with friends and you got a part-time position and maybe I just hang out with more people than you’re staying out with. They could take that as an improvement; however, they can’t base it on one exam. That is against the law. There is a case law that we use to support that within the regulation. It can’t be based on one exam to show improvement. It has to be way more than that. It has to be medical opinions or lay statements, or just more evidence than that one day you were kind of having a good day if you will.

Christian: Sure, sure. And, another thing I want to add is material improvement under ordinary conditions of daily life and work. Sorry, I left that part out because that’s pretty important.

Lindy: Yes, yes.

Christian: So, let’s not forget that part of it. And also, five years means five years. You have to be rated for exactly five years or more. Four years, 364 days that’s not going to cut it. It needs to be five years exactly. So, Michelle, do you want to talk about extra protections for ten years?

Michelle: Yes. So, at ten years, VA can reduce your benefit; however, they can’t sever your benefits. So, it’s something to be mindful of. They can do it if there is evidence of fraud or if there are issues with the character of discharge that maybe got missed when benefits were awarded. So that’s just something to be mindful of once you have the rating for ten years in place. There’s a standard that VA now gives so that you won’t lose service connection.

Christian:  And that’s what severance means. You’re just completely getting rid of the service connection.

Michelle:  And then with 20 years, at this point in time, VA can’t reduce you. Well, they can– sometimes stage rating kind of come into play. So, they can’t reduce you below one of the ratings you’re at. Let’s say in the 20 years you’re at 20 and then you went 40 and then you went to 60. They can never reduce you past the 20. But keep in mind, the rating has to be in place for 20 years and at that point in time, they can’t reduce you. So, for 20 years, if you’re at a 40% rating, VA can’t come out at any point in time and reduce you but if there is fraud again, then they could possibly do that but that’s a very high standard that VA has held to.

Christian:  Absolutely. And that jumping from 20 to 40 to 60 to 20 to 10, that doesn’t apply to the five years. Just all these rules are very different and that’s why we’re trying to go through exactly how all of them can be used to help veterans if they are improperly reduced. So, what about TDIU?

Lindy:  Yes. TDIU is not protected. So, there’s always a chance that VA will discover that maybe you’ve been working or making a certain amount of money that over the poverty threshold. So, I’m to take a step back. Again, we have videos on TDIUs. You can always go check out our videos for more detail but essentially, TDIU is assigned when a veteran’s service-connected conditions don’t allow him or her to work; however, you can be marginally employed. So meaning, maybe you make under the poverty threshold every year which is about $12,000 right now or you’re in a protected work environment. So, maybe you work for a family business and you’re allowed to come and go as you please and it’s that protected or sheltered workplace. So, these are the kind of examples for TDIUs. So, if you are in receipt of TDIU, meaning you haven’t been able to work or in one of those circumstances, and then VA gets evidence that you actually are working or maybe you’re making over the poverty threshold, they can sever TDIU. So, we see that frequently, maybe the veteran decided to go back to work and forgot to tell us and so, we’ll get a notification from VA letting us know that they’re proposing to sever TDIU based on– sometimes VA actually is in contact with the Social Security Administration and so they’ll get evidence suggesting that one of our clients has been making over the poverty threshold and they’ll want evidence to suggest otherwise, or maybe it was a mistake. So, they want to know what’s going on.

Christian:  Sure. So– and in the situation where the veteran doesn’t go back to work, doesn’t make over the poverty threshold, sometimes VA will propose to reduce TDIU rating without those circumstances that they would have to show that you can actually work. So, it’s a higher burden for them to take away IU when they haven’t found out or the veteran hasn’t gone back to work. So, that’s just a little bit of caveat to that. So, luckily, the rules for how and when VA can reduce ratings are tough. Right? So, I think that we’ve gone over sort of when it would happen, how it would happen, the special rules. So, Michelle, do you maybe want to talk a little bit about the additional rules that the VA has to follow when they’re going to reduce the rating?

Michelle:  Yes, of course. So, like we talked about earlier, VA has to not only just review the examination you got. The examination also, keep in mind, has to be thorough and adequate. They can’t reduce you based on an inadequate examination that VA has obtained and we also have another Facebook Live and some materials on what is considered an adequate examination but I think it’s just something to be mindful of. It has to be based on the review of all your medical evidence. You have to show that there’s been improvement since the last decision VA issued, and then improvement, like what we talked about, has to be a material improvement. So, those are just some things that you have to– they have to hit all those hurdles in order to come out and then reduce benefit, and if they do find that they meet all the criteria, then they can come out and do that.

Christian:  Yes, absolutely. So, I guess one of the things I think I want you guys to synthesize is what can– because I think we’ve touched upon it throughout the course of this discussion, but what would be some suggestions you have. We’ll start with Michelle and then Lindy. For veterans, what can veterans do to fight these proposed reductions? So, you can’t fight it– I’m being a little loose. You can’t fight it when they propose it, right? You can add maybe some evidence but once they actually reduce it, what can a veteran do to put themselves in a good position to maybe have the reduction not overturned but have that decision be made in error? So, what can they do to set those up?

Michelle:  Sure. I think we talked about this earlier is making sure you’re reading this decision fully. Sometimes they’re reducing benefits because you didn’t attend an examination. So, you just need to let them know that you’re willing and able to attend examinations, maybe why you didn’t. Sometimes they’re saying that your cancer is a remission and you know what? It’s not. You can send medical evidence showing that it’s still on remission. It’s paying attention to that key point in showing, giving, or providing evidence that shows that that’s incorrect. You know whether it’s medical, lay evidence or whatever you know you think needs to demonstrate VA’s wrong in their determination.

Christian:  And you have 60 days from the proposal of the reduction to submit that kind of evidence because then, the VA has to consider all that evidence you submitted in determining whether a reduction is warranted, right? So, a proposal is just that. They’re saying, “Hey, we think we’re going to reduce your rating because we see [inaudible] has improved.” We have evidence to show that it’s not and then the VA has to make in a rating decision, the final decision as to whether that goes through or not. Anything to add, Lindy?

Lindy:  Yes. I was just going to say to pay attention to deadlines as well. So, when you do get that proposal to reduce, if you like to attend a hearing, you have 30 days to request that hearing. Oftentimes, you know, you might skim through the middle part. Everything in that letter is really important. So please read through the whole letter. If you’d like to attend any hearing, you can within 30 days request that. And like Christian just said, if you’d like to submit any evidence suggesting that proposal to reduce isn’t warranted, you have 60 days. So, pay attention to deadlines, like Michelle said, please attend examinations and if you miss one just let them know why you’re trying to get one rescheduled. And yes, don’t be afraid to submit any lay evidence, lay statements, private medical opinion. Maybe you’re treating with a private medical provider who can submit a statement saying that you’re back condition is really quite severe and wasn’t adjudicated properly or wasn’t examined adequately.

Christian:  So, just a note there, you have to request the hearing within 30 days but you are not going to get a hearing on–

Michelle:  No. No.

Lindy: No, no.

Christian: –within 30 days.

Lindy:  Yes, that’s really good point. Be prepared to wait.

Christian:  Yes. It’s going to take– it could take a really long– you guys know better than I do. I– it’s years?

Michelle: It depends.

Christian:  It really– okay. So, but it’s not going to happen within 30 days. That much we can all agree on but the VA is going to have to– once that hearing happens, the VA is going to have to consider everything in the hearing transcript before they make the final decision on whether they’re going to reduce the rating.

Michelle:  Right. Yes, right.

Lindy:  Right. Yes, I was going to say the one good thing about requesting a hearing is that they can’t reduce you until that hearing has been held. So, that’s it.

Christian:  Yes, absolutely. Okay, so let’s say we get through the proposal and then we request a hearing, they submit evidence showing that their condition hasn’t improved. The hearing happens. The VA reviews the transcripts and now, they actually reduced the veteran’s rating. What’s next, Michelle?

Michelle:  So, at this point in time, you have appellate rights. So, now, not getting too much into the world of the Appeals Modernization Act, though that’s your rating decision, that formally reduces you. And at this point in time, you have a year to respond to the rating decision. You can choose one of the appellate options which involve doing a supplemental claim, a higher-level review, or going to the board. Not to get too much into them by, you know, with the supplemental claim, you can submit additional evidence showing that the reduction is also incorrect.  Higher-level review, you can submit maybe further argument but you can’t submit additional evidence because the duty to assist is gone in that lane, or you could go directly to the board and choose one of the three options, maybe want another hearing. Maybe you want to submit evidence or maybe you just want to submit an argument to VA but you have full appellate rights at this point in time.

Christian: Yes, and so that would sort of– and if this were to be a Legacy case–

Michelle: Yes.

Christian:  –there’s got to be a rating reduction Legacy case out there.

Michelle: Oh yes.

Lindy:  Absolutely.

Christian:  That would just be– you still– you have a year to file your notice of disagreement then the VA is going to reconsider it. They’re going to issue a statement of the case. You have 60 days to file your VA-9 which protects your appeal to the board.

Michelle:  Yes.

Christian:  So, you still have appellate rights invoked just the way that they work, it’s going to be a little bit different.

Lindy:  Definitely.

Christian:  So, I think that we’ve gone through why re-examinations happen.  What the protections for ratings are, how it works. Are there any final thoughts that either of you have?

Lindy:  Again, just reiterating what we said before. If you are asked to attend a new examination, you should definitely go. Don’t think that if you don’t attend, they won’t reduce you. They probably will immediately and it’s even more evidence to suggest that you’re rating should be reduced. So, definitely go to all your exams. If you can’t make it, just let them know and try to get it rescheduled. Don’t be afraid, again, to submit lay statements, buddy statements, maybe a family or friend could write something saying how severe your disability is but medical evidence is probably one of the strongest things you can do. So, if you’re treating privately, submit anything from your private medical provider.

Michelle:  I would say always respond to the proposal. It is a lot easier–

Christian:  Yes, absolutely.

Michelle:  — to fight the proposal than to fight the reduction and it usually happens a lot quicker in the process. So, that’s my best advice is to watch your deadlines, respond within 60 days, and always respond to the proposal and get stuff that does show VA’s wrong.

Lindy:  One more thing about what Michelle just said. I don’t think you always– don’t feel like you have to do a hearing in order for your reduction to be overturned. Sometimes going to the hearings can be not as beneficial as you think it is and then, at that point, you’ve wasted a ton of time. So, it might be better just to accumulate as much evidence as you can and submit that within the 60 days from the proposal. It might be your best use of time and probably will give just as good evidence as a hearing.

Christian:  Yes, because VA doesn’t like to consider a hearing more persuasive than a written statement or something like that. So, that’s really good advice. So, I don’t really have anything to add to that. That’s all great. So, we’ll just thank everyone for tuning in to another edition of Facebook Live from Chisholm Chisholm & Kilpatrick.