VA Rating Reductions
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.
- Why does VA reduce ratings?
- When does VA reduce ratings?
- Rules VA must follow when proposing a rating reduction
- What to do if VA proposes a rating reduction
- How to appeal a VA rating reduction
- Conditions that are more vulnerable to rating reductions
- Stabilized Ratings
- Continuous Ratings
- Permanent and Total Ratings
- What to do if your appeal deadline has passed
- Will VA reduce your rating if you appeal?
You may also be interested in these VA Rating blog posts:
Jenna: Good afternoon. Welcome to CCK Live. My name is Jenna Zellmer. I’m an attorney here at Chisholm Chisholm & Kilpatrick in Providence Rhode Island. With me today are Brad Hennings and Courtney Ross. They’re also attorneys at the firm practicing in Veterans Benefits Appeals. Today we will be talking about rating reductions. If you have any questions well as we have our discussion, please feel free to leave a comment or question in the comments below. We’ll do our best to answer them as we go along you can also visit our website CCK-law.com there’s a lot of helpful resources there. So, rating reductions. I find that a big question that I get from a lot of veterans is they have a rating and they’re worried that VA is going to either take the rate away or reduce them and that’s something that they’re really concerned about. Let’s talk about when VA can do that, why they do it, and how a veteran can make sure that they get the correct rating. Brad, why would VA ever reduce a veteran’s rating?
Brad: Well, the reason VA goes in to reduce a veteran’s rating is because they’ve made a finding probably when they initially granted service connection that it is not a stable disability meaning it can be dynamic or it can change over time and so, VA wants to make sure that they’re adequately compensating the veteran for the effects of this disability on his life. Sometimes they think that hey, if the disability has gotten better then the taxpayer shouldn’t be giving them that same VA compensation.
Jenna: Okay. Courtney, how does VA do? Does it just one day decide that the veteran doesn’t get any more money?
Courtney: Yes. To follow up on what Brad just said about the reasons why they do so, so to kind of track this if you have a disability that’s service-connected but it’s not yet considered permanent and total, which we’ll get into what that means later in this presentation. What they’ll usually do a schedule a follow-up VA examination usually every two to five years to reassess the condition and how severe it is at that current time and that examination can often be the trigger for VA proposing to reduce a veteran’s rating.
Jenna: What if the veteran just doesn’t go to that exam? Can they avoid getting a rating reduction if they don’t go to a reexamination?
Courtney: No. I would never advise a veteran not to attend a VA examination because the VA could just move forward with the proposal anyway if a veteran does not attend the examination. Also, if there’s other medical evidence that’s been added to a veteran’s file that suggests there’s been some improvement in the condition that could also be a trigger. So, it’s not just VA examinations.
Brad: Another case where that could happen is if a veteran is applying for an increase in their disability rating. For example, they’re having issues with their knee, their service-connected for knee condition let’s say a 10% disabling. They feel like it’s worse. They’re having more trouble doing day-to-day activities so they file for an increase with the VA and they get a VA C&P exam or compensation examination and then the VA takes a look at and says, “You’re not worse. You’re actually better and so, we’re going to reduce you.” That can happen as well and that’s one of the reasons why veterans are concerned about filing for increases frankly.
Jenna: I think we recently did a Facebook live all about VA examinations. So, if you have more questions about that sort of area. You can visit our website at cck-law.com. If a veteran — if VA decides to initiate the proposal to reduce a rating, what rules does VA have to follow before they can actually go ahead with reducing a veteran’s rating? Courtney.
Courtney: Thank you. First the proposal to reduce has to be based on the veteran’s entire medical history. It really– while one exam or a piece of medical evidence might be the trigger for it, the actual proposal to reduce and the reason for it cannot be based just on that one VA examination. VA has to show there’s also an actual improvement in the condition or actual change rather which means there’s been material improvement in that condition and the– or material improvement in the veteran’s ability to function in the ordinary conditions and stresses of life.
Brad: A perfect example is there are a number of rules as Courtney just laid out. We found in our experience that VA doesn’t always abide by those rules and those are causes to appeal the VA’s decision. In particular, the issue of making sure that the disability is improved under the ordinary conditions of life and work. That’s a big thing, meaning that perhaps your knee disability doesn’t meet the range of motion, the flexion that they’re testing to justify your current percentage but under your ordinary conditions of work in life you say, “Well, I can flex my knee a little bit better but I’m having even more trouble getting up and downstairs, lifting things, walking, working. My life isn’t any better at work or at home.” So, that’s an example of a case where you really want to fight that determination by the VA.
Jenna: I think a lot of times veterans will also get a steroid shot in their knee or something right before they go into the VA examination and so, the flexion on that particular day is a lot better because they’ve treated it but unless they’re getting those steroid shots every day, everyday life is a lot different than what happens on the actual exam day.
Brad: Our experience for a lot of these cases are that if VA has moved to reduce, they’re incorrect. In my experience both as an advocate and working at the VA as a Veterans Law Judge is that many times the regional offices do not follow all of these rules. It’s not purposeful necessarily. It’s just sort of the way the process works and that when you actually look at the nitty-gritty of the case, the veteran shouldn’t be reduced. So, don’t just blindly accept VA reducing your benefits.
Jenna: Yes, and you referenced to kind of how the process works and it’s a little bit complicated and a little different than the normal procedure for an increased rating claim or a service connection claims. How does VA actually initiate a reduction? What’s the first step?
Courtney: Yes. There’s a due process requirement there. If VA wants to reduce a veteran’s benefit or condition, they have to issue a proposal first to reduce and give the veteran 60 days to respond to that proposal with evidence that – or argument for why it shouldn’t happen and the 60 days has to expire before VA can actually implement the reduction. So, if the veteran gets a decision, it’s a proposal to reduce that you have 30 days from the date of the decision to request a hearing on the issue if the veteran wants one or 60 days to submit any evidence or argument. So, evidence you could consider submitting within that 60 days in support of VA not reducing might include a private opinion from a treating doctor that you have if you have any lay statements from friends or family who observe on a regular basis how your conditions actually impact your life and your work on a daily basis. That information could be really helpful to submit within that 60 days to avoid VA action moving forward with implementing the reduction. One thing to keep in mind is that the proposal is not a final decision which means you can’t actually appeal the decision. You can just send the response in and explain to VA why you don’t think the reduction would be proper. After 60 days if the VA moves forward and issues another rating decision finalizing that reduction at that point is when a veteran could appeal that decision by filing a Notice of Disagreement.
Jenna: Great. I think you mentioned having 30 days to request a hearing, VA can’t issue a final decision on whether or not to reduce the hearing until that– excuse me, to reduce the rating until that hearing takes place and so I think many veterans know it takes quite a while to schedule a hearing and so that can actually increase the amount of time that you have to gather that information and make sure that you have enough information to really challenge the VA’s proposal. I think you did a really good job of– already kind of discussing what kind of evidence a veteran can submit. So, we talked about private doctor. We talked about– what about– Why would maybe a private doctor be different than a VA doctor? Is it may be a veteran treating physician? What kind of evidence would put that doctor provide?
Courtney: Treating doctor versus a VA doctor?
Courtney: Well, VA already has access to your medical treatment records through a VA doctor. In theory if they’ve done reduction correctly which Brad said they don’t always do but they should have already reviewed that evidence because they’re supposed to review their entire record. A private doctor, an opinion from private doctor or records from a private doctor wouldn’t necessarily be already of record and VA might not have already considered them in the proposal. That’s why it might be especially helpful to seek an opinion from private doctor versus a VA doctor.
Jenna: Great. Then after those 60 days if VA does make that final decision. What can a veteran do if he’s still not happy with the VA’s decision?
Brad: Courtney talked about filing a notice of disagreement and that’s absolutely what you should do in the legacy system.
Courtney: I know.
Brad: Which means if you’ve gotten a rating decision up until February 19th, 2019, before then you can potentially file a notice of disagreement and you’ll be in what they call the legacy appeal system. If you receive a rating decision reducing you after February 19th that you’re now in the Appeals Modernization Act world and then you can choose one of three options. You can file a supplemental claim, a higher-level review or a notice of disagreement to the Board of Veterans’ Appeals and each has their various merits. I’d strongly encourage you to speak with a VA accredited attorney, agent or a veteran service organization like our partners at the Disabled American Veterans.
Jenna: Okay. Are there certain types of conditions that are more vulnerable to these types of rating reduction proposals and reductions?
Courtney: Cancers are usually one that we see most frequently. If the cancer is active, VA will assign usually 100% rating for it but then they’ll frequently do VA examinations to keep track of it to see if it goes into remission. If you’re rated for an active cancer and it later goes into remission, VA will reduce that based on the rating criteria for that cancer or the residuals of that cancer during your time in remission.
Jenna: Okay. And then on the flip side of that I think that there are some conditions that are more stable so it’s slightly less vulnerable to reduction or at least have continued to have the same rating for a number of years. Brad, what exactly is a stabilized rating?
Brad: Well, stabilized rating is where your rating has been the same. Let’s say 10% for hypertension, that’s a good example because a lot of times folks have high blood pressure but it never really goes beyond a certain range for a long period of time and so if it’s five years or more, it’s considered stabilized. There’s a separate set of rules that VA has to look to if they’re going to reduce the disability including something like what they call ‘sustained improvement’. What that means is if you’ve had this disability for five years and it’s been at 10% for your hypertension and you suddenly get one or two blood pressure readings that show that you no longer have hypertension that you’re good to go, VA is not allowed to come in and say, “Aha, reduce.” What they have to do is take a look and see if this is really sustained improvement over a period of time in consistent with the veteran’s disability picture as a whole.
Jenna: The definition of stabilized rating was actually something that our firm argued in court at the Court of Appeals for Veterans Claims fairly recently and a case called ‘Simon’. In that case what we were essentially arguing was that the veteran had a 50% rating for a couple years and then he went down to 30% for four years and so — but he never went below 30 and so we were trying to argue that even though he didn’t have one rating for five years if you take that combined he had at least a 30% rating for the requisite number of five years and so, this higher standard for VA to meet should have been triggered. The court disagreed. You– essentially, in order to have a stabilized rating, you need to have same rating for five years or more in order to have– VA have this higher burden of demonstrating sustained improvement and so, you can read about that case on our website. We had attorneys to do a valiant effort in trying to argue in favor of Mr. Simon but unfortunately the court disagreed. We’ve talked about five years. Are there any other kind of year thresholds that would protect a veteran if they have a rating for a certain amount of years?
Courtney: Yes. There’s an additional protection at the 20-year mark. If a veteran has been rated for a certain condition let’s say PTSD for 20 years, VA will consider a continuous rating which means if they do reduce it, it can’t be reduced below the original rating that was assigned. For PTSD, if a veteran was granted service connection at 30% initially over the next 20 years it’s fluctuated maybe between 30, 50, 70. If it’s at 70 right now and they want to reduce it, they could only reduce it to 30 because that was the original rating that was assigned.
Jenna: Okay. Good. What about 100% ratings? If a veteran comes to us and says they have 100% rating, does that mean they’re automatically exempt from rating reduction?
Brad: No. They have to be deemed what they call permanent and total. What that means is permanent means as it sounds meaning it’s not likely to improve and total would be 100% rating or TDIU is the most– those are the most common circumstances saying it’s a total rating as it relates to the veterans service connected disabilities. One of the ways you can tell is many times on VA’s code sheets or letters they will actually say this is considered permanent and total. You can also tell if you’re in receipt of certain benefits like dependents and educational assistance and there’s a few other places where they may mark it as such. But if it’s not marked there, that means it may not be considered permanent and total. That’s something you can ask for the VA to determine. If you’re 100% or your receipt of total disability due to individual unemployability you can ask them to adjudicate you or find you permanent and total and that’s an appealable issue that if they deny that you can appeal it up the ladder.
Jenna: Okay. You mentioned IU. IU is not always permanent, right?
Brad: That’s correct unless the VA has found you to be P&T, permanent and total, with your IU. There’s always the possibility that they will order additional exams in the future to see if you’ve improved.
Jenna: I think VA often or at least in the past, I’m not sure if they still do this, they would require forms from a veteran to confirm that they were no longer working in. I believe they no longer require that but if the vet if the VA does actually find evidence that a veteran who receives TDIU is now working or receiving wages and reporting that to Social Security then VA is going to kind of take that and run with it and determine whether or not they want to take TDIU away.
Brad: That’s a great point. Actually, VA just changed their policy on this as you were alluding.
Jenna: As I was saying —
Brad: Yes. That was a great point. For years, the VA used to send out a form that would ask you about your income level and you’d be responsible to return it if you are not permanent and total. In particular, you’d have to respond back and if you didn’t respond back they threatened to take your IU away. They have gotten away. They are no longer going to send that form automatically like they used to. They will only send it if there is a mismatch between your social security or earnings meaning if they run a report because they have electronic access and see your Social Security earnings are above the poverty threshold then they will send you a form and you have to explain the why that might be the case otherwise they won’t bother you.
Jenna: Okay. What happens if this has all happened, a veteran received the rating reduction proposal. They received the rating reduction decision and for some reason, they weren’t able to appeal it. Maybe they didn’t know all about all the different resources and all the different ways to challenge it and the decision has become final. Is there anything a veteran who maybe is watching this live and has a final to say that is past its appeal date? What can that veteran do?
Courtney: Yes. There’s a couple things. The one thing a veteran can do is to file what’s called a CUE claim or clear and unmistakable error claim. It’s a fairly high legal standard though so the veteran would have to show that the VA made a clear and unmistakable error in the initial decision to reduce the benefit. The other thing the veteran could also do is decide to file a claim for a new claim for an increased rating to get their rating back up. The difference there would be the effective date should at higher rating end up being granted obviously with a new increased rating claim if the VA ends up granting a higher rating would only go back to the date of the new claim. Whereas if a veteran files a CUE claim and ends up being granted, it would be restored back to the date that it was reduced in the first place.
Brad: I will say that we’ve had some success at the Court of Appeals for Veterans Claims arguing CUE on reductions because of some of the legal issues that are involved. It’s always a possibility it doesn’t mean as Courtney said it’s a higher legal standard and it can be a long road but it can be successful as well.
Jenna: I think actually the case that I was mentioning earlier Simon was rating reduction in the CUE context and so, we do see quite a lot of those. As I mentioned, at the beginning of this video I practiced mostly at the Court of Appeals for Veterans Claims and I get a lot of questions from my clients about you know, if they appeal a decision either at the VA or appeal it to the court, how could that affect their rating and they’re very concerned that VA is going to reduce their rating in reaction to an appeal. If you want to talk a little bit about that Brad?
Brad: Well, I think in any case like this, it’s always a risk because you never know exactly what VA is going to do and we can’t prevent VA from taking the action they’re going to take. Generally speaking, in my experience, appealing to court does not automatically trigger a reevaluation of your disabilities even if you win at court then it comes back down. That being said, it is a little bit different if you’re going to appeal or file for new claims at the agency and maybe Courtney can talk about that a little bit more.
Courtney: Yes. If you appeal or filing a new claim, if you’re asking VA to look into the severity of your condition, I should say in your claim for a higher rating, you do run the risk of a possible proposal for VA to reduce because it’s part of their process where they’re going to have to look at and assess the severity and possibly order a VA examination which as we said in the beginning of this presentation could be the trigger for a proposal to reduce. You just want to keep that in mind when you are making the decision to appeal a rating that’s been granted or possibly filing a claim for a higher rating.
Brad: Just let me give another plug too. Please talk to someone who’s experienced in working in this area if you can, be it a veteran service organization like DAV, be it a VA accredited agent or VA accredited attorneys someone like us before you make some of those decisions because there are various considerations and you want to make sure you’ve got — make an informed decision about them.
Jenna: Great. Well, I’ve reached the end of my questions. You guys have any final thoughts?
Courtney: Well, I think that’s actually a perfect final thought.
Jenna: Okay. Well, thank you for joining us this afternoon. This has been CCK Live. My name is Jenna Zellmer. Thank You Brad and Courtney and have a great afternoon.
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