What to Do When VA Proposes to Reduce Your Disability Rating
Jenna Zellmer: Good afternoon! and welcome to another edition of CCK live. My name is Jenna Zellmer. I am an attorney here at Chisholm Chisholm and Kilpatrick practicing veterans benefits appeals. Joining me today are Michael Lostritto and Kayla D’Onofrio, who both represent veterans before the agency. Today we are going to be talking about “What to Do When VA Proposes to Reduce your Disability Rating.”
What exactly does that mean? VA awards and amount of compensation based on your service-connected disabilities and VA can reduce a veteran’s ratings and therefore reduce that amount of compensation. Today, we are going to discuss the rules the VA has to follow when reducing the rating, what veterans can do to fight that proposed reduction and we are going to go over certain reading protections that could limit the VA’s ability to reduce. Get us started. Why would VA reduce a veteran rating?
Michael Lostritto: VA reduces disability ratings from time to time because their stated goal is to ensure that each veteran is accurately compensated for their current level of disability. If VA,
for whatever reason and we’ll talk about some of those reasons throughout the broadcast, if they think that a veteran’s condition either will improve or has improved then what they will typically do is schedule the veteran for a re-evaluation of the condition that’s being rated. This can typically lead to, in some instances, VA reducing the veteran’s disability rating if the veteran’s condition has improved.
The stated goal of VA is to compensate veterans based on their current level of severity is. This is just a recognition that from time to time veteran’s conditions can sometimes improve and that would result in a decrease in their compensation level.
Jenna: What happens if VA decides to reduce a veteran’s rating and the veteran disagrees and does not believe that their condition has improved. Kayla, maybe we can talk a little bit about that.
Kayla D’Onofrio: Sure. The first thing to keep in mind is that two primary things would trigger VA to start this reduction process. The first is that they receive some sort of new evidence, usually medical evidence, that indicates that there is some kind of change or some kind of improvement in the veterans rating. The other way is if they originally grant a rating for your condition, they decide that there is potential for improvement of that condition in the future. If they find that possibility, they will notify you of that when they grant the particular rating. They will tell you. They should tell you when the rating decision is that you may be subject to future exams to make sure. As Mike said, they are accurately rating you for your condition.
In either one of these scenarios, they will probably schedule you for a new VA examination to make sure that they are correctly evaluating your condition. They can order an exam at any point in time during this reduction process. It is really important to attend these examinations. You may think that not going would prevent them from reducing you, if they do not have that evidence, when in fact the opposite is probably true. They will probably just reduce you even sooner. If they do schedule you for an exam and you know that it is to re-evaluate you or if they think they may be trying to reduce your rating, definitely attend the examination and be honest with the examiner about what your conditions look like under the ordinary conditions of life and work.
That is the threshold that VA is supposed to be meeting before they do try to reduce a particular rating. They have to show that there is actual Improvement when you are functioning in your everyday life. So when you are walking around your house or you are running your regular errands, is there Improvement in that condition?
Jenna: That is a great point to make sure that you attend your examinations if you have received your proposals to reduce. We have Prior CCK Lives, that deal all with what to do when you go to an exam. One of the points that we make over and over again is that you always want to attend your exam. It is no different in this case, maybe even more important because like you said, they are just going to probably reduce you if you do not show up.
There are several rules VA has to follow when trying to reduce a veteran’s rating, it is not like a VA is just going to wake up one day and decide that you are rating is lower and you are going to receive less compensation the next month. You will be put on notice. VA’s first step is to send you a notice that they are going to propose to reduce the rating. This notice is confusing because it is not a rating decision and you cannot appeal it.
If you receive one of those notices, it is important to take note of it but do not try to respond to it or file a notice of disagreement with it because VA is not going to accept that. As Kayla mentioned, you know after they propose that they might order an examination to demonstrate through medical evidence, that there has been a change in your disabling condition. It can not just be based on one exam. They need to look at the evidence throughout your medical history and throughout your file. After having taken those steps after sending the notice in potentially look getting an exam and looking through the medical evidence, If they continue to believe that your condition has materially improved, they will then issue a rating decision that reduces the rating. That is what you need to appeal.
Once VA issues a decision, reducing your rating. That is going to go into effect and your benefits will be impacted. You will likely get less compensation the next month but if you fight the reduction, you can always potentially get your rating restored, and then VA would owe you that money that they have improperly reduced. That brings me to the next point. Mike, how do you fight a rating reduction?
Michael: As you were saying, Jenna. If a veteran receives a notice that VA is proposing to reduce your rating, veterans have 30 days from the date of that notice to request a hearing. This is not required. Veterans do not need to request a hearing but this allows, number one, for veterans to attend a hearing if they feel that this would benefit them in some way. By being able to describe their condition and how maybe it has not improved. But also requesting a hearing essentially stops VA from being able to reduce the rating until the hearing is conducted. Because of the length of time, it can take to schedule a hearing, this often allows Veteran’s Advocates the opportunity to gather the necessary evidence that they may need. And also, hold that current rating in place until they are able to do.
It can be an official procedural step to take but also for veterans who want to attend the hearing and submit additional evidence and testimony. That way, obviously that option is there as well. Whether a veteran requests a hearing or not, they will have 60 days from the date of the notice to submit additional evidence in support of the veteran’s current rating to show that a reduction is not warranted. This can take a number of different forms. We will talk about those in a second.
These dates are really important. The 30 days to request a hearing. The 60 days to submit new evidence. Because this is all before a finalized decision has actually even been issued that reduces the veterans rating. This is a way to get ahead of it. While the rating is still intact, try to fight it and prevent the rating reduction from going into effect. If though, either the veteran does not respond to the proposed reduction, or maybe they do not receive a copy of it or they do respond. VA, nevertheless, issues a finalized decision that that does finalize the rating reduction. Veterans do have the same rights to appeal that decision in the same way that they would for any other decision. If it is an AMA decision, they would have three options.
They would be able to submit new and relevant evidence in a supplemental claim Lane appeal. They would be able to submit a higher-level review appeal to have kind of a higher-level adjudicator within the VA Regional Office to look at the case. Fresh, top to bottom, and then they also have the option to send the case to the board and appeal a notice of disagreement. There are three lanes at the board to choose from there. But these standard options that veterans have, to appeal any rating decision, also exist for veterans who are looking to appeal a decision. A finalized decision that is in AMA.
Second ago, I was talking about the evidence that one might want to obtain and then submit, either in response to a proposed reduction or in response to a rating reduction. In my practice, I have found both lay evidence and private medical opinions or treatment records to be some of the most powerful pieces of evidence that a veteran can submit. The idea, as I believe Kayla was saying, is to highlight the fact that your condition has not improved. Perhaps, there is an individual, your spouse or a friend, or something who would be willing to write a lay statement for you. Submit that, to show how your condition has not improved and how they have been able to witness you not be able to do the things that you once did.
Because the burden is really on VA, to show that your condition has improved, you need to submit evidence to that effect. To show that under the normal conditions of work and life, your condition has not improved. Again, you can have a private medical opinion submitted that offers that opinion. You can have treatment records. You can send lay evidence either your own or a buddy statement or a spouse. But all of that evidence, those are the types of things that you would want to think about submitting both in response to a proposed reduction or ultimately if the decision is finalized in response to the rating decision with an appeal.
Jenna: I think that is a really good point, Mike. How this is ultimately a VA’s burden and that does not necessarily mean that VA is going to properly apply the law. It is possible that they are going to reduce even though they might not have met that burden. That is why it is really important to know your options for how to fight that rating reduction especially, you can file a supplemental claim or higher-level review. But sometimes it might make the most sense, something you should talk to your veteran service organization about or your attorney. Whoever is helping you. It might make more sense to go to court. Sometimes, VA needs a little extra push to see that they have not carried that burden. I think that was a really good point.
Michael: For sure, that is. You mentioned another good point. These can be tricky legal issues because we are getting into things like the standard of proof and burden shifting. Things that a lot of veterans do not think about but veterans need to understand that in these situations, they need to show that the evidence warrants an increased rating. They need to show that their old rating or that their condition has not improved because the burden is on VA.
As you said, the burden is on VA to show that their condition has improved. It does get complicated. Sometimes we do need to appeal these cases to court but it is just one of the nuances in this area.
Jenna: Yeah. It is even more complicated because like Kayla mentioned a little while ago, one of the triggers that can potentially prompt VA to propose a reduction is a claim for an increased rating. So, if a veteran claims an increased rating and goes to the VA examiner, and the VA examiner says “Actually you do not deserve an increase reading, your condition has improved.” Then that gets even more complicated because the veteran still wants an even higher rating but now they are fighting to just keep the rating that they once had. It gets tricky.
Another thing Kayla, you would mention was the triggers about how VA sometimes determines that. A particular disability might be subject to Improvement. Let us talk a little bit about the flip side. Are there particular disabilities? Are there ratings that are more protected? Maybe they are less susceptible to redirect reductions.
Kayla: Yeah. There are a few circumstances where your ratings may be a little bit more protected than they would, under normal circumstances. A lot of it has to do with sort of length of time that they have been at a particular rating or length of time that they have been service-connected. You first started to get protections at the five-year point. So, if you have a condition that has been continuously rated, at the same rate, for 5 years or more. VA has to show that there is exhibited sustained improvement of this condition. What that means, they can not just rely on one single examination to try to reduce you. Like you mentioned before, they are supposed to be looking at the full record anyway, but it is not enough for them to look at the record and just do one examination.
They have to get at least two examinations. That does show that that Improvement has been sustained over a longer period of time. It is a little bit of a higher threshold that they have to meet, once those conditions have been rated at 5 years. Just something to keep in mind, the 5-year point does mean five years. If you have been rated at one rate, for four years and 11 months, it is not going to cut it for VA purposes. It does have to be exactly 5 years or more before you get that protection.
You get a little bit further protected at the 10-year point. VA is still subject to the same higher threshold, not relying on just one examination. But at the 10-year point, you also now have an added protection where they can no longer sever your condition. And what that means is, they can not take away service connection. They can still try to reduce you as long as they do meet that threshold of going to more than one exam, looking at all of the evidence showing sustained improvement under the ordinary conditions of life.
They can not fully take away service connection unless they show that service connection was granted based on fraud, which is a high standard that VA has to meet before they can try to do that. And then at the 20-year point, you are even further protected. So, if you have had a condition that has been service-connected for 20 years or more, VA no longer can reduce that rating. Just something to keep in mind. Over that 20 years, your ratings may have gone up and down, but they can not reduce you any lower than your lowest rating over the 20 years. You may have started at 20 percent, going up to 60 percent, down to 40, down to 20, back up to 60. They can not reduce you any lower than 20%. That is the lowest rating that you have had over the 20 years.
The only way that they could try to reduce you at that point is if they show that the rating was granted based on fraud. And again, that is just a high standard for VA to meet, to be able to reduce you. At 20 years, your ratings, are pretty protected in terms of making sure that they are not going to reduce you. And then the rating itself may offer you a little bit of additional protection. If you have a disability that is rated at 100%, VA does have to show that there has been material improvement before they can try to reduce that rating. What that means is, they have to show that there is a significant, observable difference in the veteran’s ability to function in their daily life because of that condition. It can’t just be that there is maybe some fleeting evidence in one medical record that indicates a little bit of improvement. It does have to be a significant change that they can see before they do try to reduce that rating.
That is where you get protected in terms of the ratings and the lengths of time themselves. And then, if you do have a 100% rating or if you have been granted TDIU or total disability rating based on individual unemployability, VA may have also simultaneously made the finding that you are permanently and totally disabled. What that means is, they have determined that your disabilities are not likely to improve over time.
It should protect you from any future examinations for those conditions and they really should not be trying to reduce them at that point if it kind of closes those out. Having said that, like Jenna said, if you do try to file new claims at that point, it may subject you to reopening and VA looking at those things again, which could then open the door for VA to try to reduce you in the future. If you do have this permanent and total finding, just be careful about any evidence that you do submit, make sure it is going to result in some kind of additional benefit to you before you go through the process of allowing VA to look at things that they do not need to be looking.
Jenna: VA’s determination that your disability is permanent and total, can be a little tricky to find sometimes. When you receive a rating decision from VA, you receive the cover letter, you receive the narrative decision, which is all of the reasons why VA has awarded you a benefit. And then at the end of that, you should also be receiving something called a code sheet. Sometimes, it is listed on the code sheet that, VA has determined that your rating is permanent and total. Sometimes to be able to tell you that you’re now eligible for dependent educational assistance, DEA. That is something only permanent and total ratings would have hit and tackle you too.
Do you guys have any other advice about how to figure out if you’re permanent and total? because it is not always something that VA tells you.
Michael: Sometimes, it is indicated on the rating that you will be scheduled for a re-examination. That is a very simple example of VA telling you that your condition is not permanent because they are going to, at some point, schedule you for an examination.
Jenna: There are chances that you are a permanent total but tread carefully, I guess, in that regard. Well great! Thank you guys so much. This is a complicated area. And it can be really sensitive and frustrating because a veteran has already gone through so much to try to get this rating. And then to get this notice,
that VA is now proposing to reduce. It can be upsetting. It is really important to know your rights. Know what VA has to follow and make sure that you talk to your rep or your attorney. Whoever is helping you because, as we mentioned, this is a complicated area.
Kayla: I would just reiterate the importance of attending those exams. As we said, it is going to be a make-or-break for some of these reductions, where if you do not attend these exams, VA will likely reduce you without them. If you, for some reason, are not able to attend the exam make sure that you do try to get it rescheduled or if you are not comfortable with attending for Covid restrictions. See if there is any way that you can schedule it under a different means, like a Telehealth exam or something of that nature. It is really important to attend these exams when they are scheduled. You do not want to be fighting the reduction if it is not necessary.
Michael: Yeah. I would just like to emphasize the importance of responding to the proposal to reduce within the 60 days that they allow. It is much easier to fight against any proposed reduction while the rating is still in place as opposed to having to go through a lengthy appeal process, once the rating has already been taken away. Those 60 days, 30 days for hearing, the 60 days to submit evidence and legal argument, are really important. And veterans and veterans’ advocates must respond within that time period with evidence. Because in many cases, I have found that doing so provides for the best chance and the fastest chance to fight back and keep the current rating, you do not get bogged down. And sometimes the lengthy appeal process, that can ensue afterward.
Jenna: Great. Thanks for joining us today. For more information on the topics we mentioned in this video, please check out our blog at cck-law.com and we will see you next week.
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