When Do VA Disability Ratings Become Permanent?

Video Transcription

Nicholas Briggs: Good afternoon everyone and welcome to CCK Live. My name is Nicholas Briggs and I’m an accredited agent here at Chisholm Chisholm & Kilpatrick. I’m joined today by fellow accredited agents, Michelle Detore and Frank Padula, and in this video, we’re going to be explaining when VA ratings become permanent.

So, first and foremost, what is a permanent rating? VA deems a disability permanent when it’s reasonably certain based on medical evidence that the level of impairment is going to continue for the rest of the veteran’s life. For this reason, VA is allowed to take age into consideration when determining the permanent status of a condition because it necessarily means that they’re considering the stability of the condition for the rest of the veteran’s life. And for this reason, it’s often difficult for younger veterans to have permanent and total ratings and permanent disability ratings in particular. So, when VA decides that a particular service-connected disability is permanent, that condition no longer requires additional re-examination to determine the current status.

So, with that in mind, Michelle, can you tell us a bit more about how a veteran can tell when their disability rating is permanent?

Michelle Detore: Yeah, so, unfortunately, there’s no one clear way. So, it can make it a little difficult to know, but there are a few things you can look for when you get your rating decision. So, on some rating decisions, there is a clear check box that says that you are permanent and total. A clear indicator which we see more often is the eligibility to dependency educational assistance or chapter 35 benefits as well as CHAMPVA is established. They’ll be a clear notification saying that you don’t need any future examinations.

And a lot of times when you’re reading the body of the rating decision, where it talks about that they’ve awarded benefits and why, it will say that your condition has been noted to be permanent in nature, and then if they’re just also deciding its permanent, you won’t see any language saying that you’re required to go to another future exam on the condition. Unfortunately, it varies by the Regional Office so that’s why it’s not clear, but those are a few things you can look for and if you’re not sure it’s always good to reach out to VA themselves or if you are working with a representative, they should be able to tell you too.

Nicholas: Perfect. And like you mentioned, the disability and whether or not it’s permanent can affect whether or not a new VA examination is going to be scheduled. So, one surefire way to tell whether or not a condition is permanent is whether or not they decide to schedule you for a new exam or they tell you on your code sheet that future exams will be scheduled. So, that’s definitely something good to keep in mind.

One of the reasons why the permanent status of a particular condition is important is because it affects when and how a VA can reduce a veteran’s rating for that condition. So, with that in mind, Frank, can you tell us a bit more about when and how VA can reduce ratings?

Frank Padula: Definitely, and it’s important to note that veterans with service-connected disabilities that are not considered permanent, may be sent to future compensation and pension, or just C&P examinations. And during those examinations, VA will evaluate the severity of those disabilities, and then rate them appropriately.

But you have to remember a rating reduction can only take place in cases where VA has reviewed the veterans’ entire medical history. The veteran undergoes a thorough examination that is adequate for rating purposes and VA finds sustained improvement in the veterans’ ability to function under the ordinary conditions of life and work. So, sustained improvement is considered to have been demonstrated when the
preponderance of the evidence portrays a lessening of service-connected symptoms that have persisted consistently over time across situations and under the conditions of ordinary life. So, in other words, the improvement must not be circumstantial in nature or attributable to mitigating factors such as temporary alleviation by prolonged rest.

So, it’s also important to note that when reducing ratings, VA is required to issue a notice of that proposed reduction. That notice must give the veteran 60 days to submit evidence to show why that reduction should not take place and 30 days to request a hearing. However, if the reduction does not change the actual amount of compensation that a veteran is receiving, VA does not need to give them notice.

Nicholas: Perfect. Thanks, Frank. And like, we talked about before, those are the sort of basic rules that VA needs to adhere to and follow whenever they’re trying to reduce a veteran’s rating, generally speaking.

There are, however, some rules that kick in when a veteran meets certain requirements that impose additional requirements on VA before they can take the step of reducing a veterans’ condition. So, in the case of 100% total ratings, say a 100% rating assigned for PTSD, VA can only reduce a total rating if there’s a material improvement in the veterans’ condition. And beyond that material improvement, there needs to be improvement demonstrated under the observable change in their ability to function under the conditions of ordinary life. And if the VA exams and the evidence that VA relies on doesn’t specifically address the veteran’s ability to function under their daily life, then VA is going to have a hard time reducing and upholding a reduction from a 100% total rating.

Another example of a situation where it becomes harder for VA to reduce a condition is when a condition is stabilized, meaning that the same rating has been in place for five years or more. And in those cases, as we said, the regulations consider the condition to be stabilized, but what that really means in terms of practical reasons, is that VA can’t rely on that single re-examination to reduce your rating. They’re going to look at the exam and they’re going to look at the evidence contained therein, but they need to look for other evidence and point to that other evidence as well. And like Frank mentioned, they need to be able to show sustained improvement across multiple pieces of evidence and medical treatment records in the appeal period.

If and when the VA tries to reduce a condition that’s been in place for five years or more based on a single service-connected disability, that’s something that a veteran should consider appealing or reaching out to an accredited representative for assistance with appealing.

So, up to this point, we’ve talked mostly about when and how VA can reduce a veteran’s condition. But Michelle, could you tell us a bit about situations where VA can’t reduce the veterans’ rating?

Michelle: Yeah, so with VA, if your condition is considered static, that’s a way of saying that it’s unchanged or it’s not going to change, they will not reduce your rating. Typically, what you’ll see language in rating decisions say that a disability proceeds as permanent in nature or character and there is no likelihood of improvement. That’s a very big common terminology you’ll see is that there’s no likelihood of improvement.

If you’re over the age of 55, keep in mind, there are some exceptions that do apply to that, so it’s not just across the board. And then, if your rating is the minimum prescribed rating, so, let’s just say the fact that you have a 0% rating, and that’s a minimum. A good example usually is using tinnitus. Tinnitus, the minimum and the max is 10%, so typically you don’t see that get reduced.

Then on top of that, there are some protected VA disability ratings where Congress has determined that under certain situations and conditions it’s not necessary for VA to use resources to check on a veteran’s service-connected condition. So, therefore some service-connected conditions can fall under what we call the protected rating criteria, meaning that it can’t be reduced or revoked even by a VA future examination and that’s a big thing here. Because that’s honestly most notable where we do see examinations are usually the most common reason that VA does reduce a veteran’s rating.

Nicholas: Thanks for that Michelle. And with that in mind, Frank, can you go into a bit more detail about some examples of these protective conditions or protected VA ratings?

Frank: Yes. So, the first is what you might call the 10-year rule and that means VA cannot sever service connection for veterans who have been rated for that disability for 10 years or more. VA can reduce the veteran’s rating but not terminate benefits unless there’s evidence of fraud.

Along the same lines, for 20 years or more, this means that service-connected disabilities rated at or above a certain disability rating level for 20 years or longer are considered to be called continuous. So, VA cannot reduce a continuous rating below the original level unless they determine the rating was based on fraud. So, for example, if a veteran’s service-connected depression was originally rated at 50 percent disabling and then fluctuated between 50% and 70% over the next 20 years, VA could not reduce the rating below 50% after that.

Nicholas: Okay. Thanks for that Frank. And again, we’re talking about these permanent and total ratings because there are additional protections that kick in for these veterans who are being paid at a certain level, and at a certain point, they have this expectation that 10, 20 years down the line, VA isn’t going to come out of anywhere and try and schedule them for a new exam and reduce their benefits for no reason. It’s built into the regulations to try and protect these veterans and make sure that their ratings stay in place when that severity is really warranted.

But another reason why the idea of permanence is important in VA law is because of the concept of permanent and total disabilities. So, in situations where a veteran has that combined 100% rating or TDIU benefits and they’re determined to be permanently and totally disabled, the same thing goes with those additional protections. You’re not going to have your rating reduced unless there’s some prompt that puts VA in a position where they can’t reduce you.

So, oftentimes we see veterans who have that permanent and total status, but they either file new service connection claims or new increased rating claims. And when you give VA a reason to schedule you that new VA exam, you do run the risk unfortunately of them potentially reducing or removing your permanent total status. So, that’s why the two kind of go hand in hand. On the one hand, if you have a permanent and total, you’re not going to have those new VA examinations but if you give VA a reason to schedule those examinations, there is always that small chance that they could reduce some of your ratings that have been in place. All the rules and protections that we talked about earlier are still there, but it is something important to keep in mind.

And then on TDIU in particular, it’s not always permanent. VA can only reduce or revoke your TDIU status if they can demonstrate actual evidence of employability with a clear and convincing level. So, that’s a pretty high standard. It’s not just at least as likely as not. VA is going to need to show that you’re actually working, not that you hypothetically can work, and that work needs to be substantially gainful.

So oftentimes we see situations where veterans are receiving TDIU benefits and they return to work on an extremely limited marginal basis. VA might try and reduce them in that circumstance, but that’s not the same thing as returning to substantially gainful employment.

So, those are the sorts of things to keep in mind with your TDIU status in particular. It’s going to vary on a case-by-case basis, obviously. So, if you do have any questions about your long-term TDIU status or returning to work, or VA has reduced your condition you think unfairly, it might be a good idea to look into reaching out to an accredited representative.

So, with all that in mind Michelle, is there a way for veterans to ask VA to make their conditions permanent or their total rating permanent?

Michelle: Yes, there most certainly is. You basically would be applying as, it gets a little more complicated in the world of the Appeals Modernization Act. So, I would say that if you do want to make your rating permanent, because it gets a little complicated as to what form, where to go with it, who to reach out to, you know, either an accredited practitioner or your local veteran service organization just to kind of make sure you’re going the right way with it. But you most certainly can, and you’re basically asking VA to make your condition permanent and total.

With this, and the same thing with any other claim or appeal, you need medical evidence, treatment records, doctors’ opinions, anything that’s going to show that your condition is what they call static, meaning it’s not going to change and there’s no expected likelihood of improvement. But again, keep in mind, I’m talking about submitting evidence. That’s why again, with the Appeals Modernization Act, you need to really be making sure you’re going into the right appeal lane or, you know, submitting the right proper form. So, it is very beneficial to reach out to somebody ahead of time, just to ensure that one, you’re not already permanent and total, and two, to make sure that you’re applying correctly for this benefit.

Nicholas: And not to belabor the point but as we talked about earlier, anytime VA gets the chance to schedule you for a new VA exam, there’s always the chance that they could reduce you. So, if you ask for permanent status when you already have it, and that triggers a VA exam for one reason or another, you could be putting yourself in a position to get your benefits reduced unnecessarily. So, it’s just something to keep in mind and there are always service organizations or accredited attorneys out there that can assist you when these issues do come up.

So, that’s all we have for you today on permanent ratings and how they work. Michelle, Frank, anything else to add that we haven’t talked about already?

Frank: I think, you know, thanks for watching, and if anyone has any questions about anything at all or needs any more information, you can always check out our website, our YouTube channel, and any other resource that we have out there for you.

Nicholas: Okay. Thanks, Frank. Good afternoon all.