Rules Regulating the Reduction of VA Disability Ratings

Posted by Gregory M. Rada | June 19, 2021 | Disability Compensation, Health Benefits, State Veteran Benefits

A VA disability rating is not truly protected until it has been in effect for 20 years or more. At the 20-year mark, the VA cannot reduce a rating unless it determines that the rating was based on fraud. Prior to then, however, there are certain situations where VA can reduce a disability rating if it believes a disability has improved. But before the VA can reduce a rating, it must satisfy a variety of legal requirements. 

Protections Against VA Disability Rating Reductions

Prior to the 20-year mark, your rating can still receive some level of protection that requires VA to make certain findings before they can lawfully reduce your rating:

• Unprotected Cases – These are cases involving a rating that has been in effect for less than 5 years. Even though these cases are considered to not have any “protection” against a reduction, VA still must make certain findings before it can reduce the rating. Any proposed reduction for a rating in effect less than 5 years (1) must be based upon a review of the entire history of the disability, (2) must include a determination that there has been an “actual change” in the disability, (3) must include a determination that any improvement reflects actual improvement in the veteran’s ability to function under the ordinary conditions of life and work, and (4) must be based on a thorough, adequate examination. 
• 5-Year Protection – These are cases where a disability rating has been in effect for at least 5 years. In addition to the above requirements for unprotected cases, here, the VA must make a determination that there has been “sustained improvement.” And furthermore, the VA generally cannot rely upon a single VA examination to reduce a rating that has been in effect for at least 5 years. 
• Total (100%) Disability Rating Protections – Cases involving a total disability rating require the VA to compare the evidence it relied upon when granting the 100% rating to the current evidence. If no material improvement has occurred, the VA cannot reduce the 100% rating. Furthermore, even if the VA is justified in reducing a 100% rating, it must consider entitlement to a total disability rating based on individual unemployability (a TDIU) if the evidence indicates the veteran is unable to engage in substantially gainful employment. And if a veteran is in receipt of a TDIU, the TDIU cannot be discontinued unless “clear and convincing evidence” establishes that the veteran is capable of “actual unemployability.” Clear and convincing evidence is usually evidence showing the veteran has maintained substantially gainful employment for a period of at least 12 consecutive months.

What Happens When VA Proposes a Rating Reduction?

If the VA proposes to reduce one or more of your disability ratings, and the reduction would result in your combined rating decreasing, then the VA is are required to (1) provide you with notice of the proposed reduction, (2) provide you with a predetermination hearing prior to the reduction, and (3) give you time to submit additional evidence as to why the VA should not go through with the reduction. There is, however, an important exception to these notice and hearing requirements – if the rating reduction does not reduce a veteran’s overall combined rating, then the VA is does not have to comply with the above notice and hearing requirements. 

A common mistake that veterans make trying to appeal a the proposal to reduce – remember, a proposal is not a rating decision, and it cannot be appealed. If you receive a proposal to reduce a rating, you will have 30 days to request a predetermination hearing and 60 days to submit evidence in support of your case. A predetermination hearing will give you the chance to speak directly with a VA employee and you may be able to convince them to stop the proposal if you can show your disability has not improved. The VA will not go through with the proposal until you’ve had your predetermination hearing (as long as you requested the hearing within 30 days).

Although the VA is trying to do its job, it is oftentimes very aggressive (and wrong) in rating reduction cases, and it is important that you respond in a timely manner to any proposed rating reduction if you disagree with the VA’s proposal.

What Happens if VA Reduces a Disability Rating?

If the VA reduces a rating, you have normal appeal rights – i.e., you can file an appeal within 1-year of the rating reduction and provide argument and evidence showing that the VA should not have reduced your rating. Oftentimes, this requires going all the way up to the Board of Veterans’ Appeals because once a regional office reduces a rating, they usually do not change their mind. 

Importantly, if you missed the appeal deadline, you can sometimes overturn a final rating reduction by filing a clear and unmistakable error (CUE) claim. With a CUE claim, it’s possible to reverse a rating reduction decision that occurred well in the past. This is because every rating reduction decision must follow the regulatory requirements for a reduction. Oftentimes, the VA fails to follow the regulatory requirements, and when they make that error, they commit CUE by effectuating a reduction “without observance of law.” So, even if you’re outside the appeal period for a rating reduction, you should still contact an attorney to see if the reduction can be overturned via a CUE claim. If successful, the remedy is to reinstate the rating as if the reduction never occurred. This can result in substantial past-due benefits owed to a veteran.

Experienced Veterans Disability Attorneys

After Service LLC can help you fight a VA disability rating reduction. Call us today at (844) 838-7529 or contact us online to schedule your free initial consultation. 

FAQ

Can the VA Reduce My Benefits?

Under certain circumstances, the VA can reduce a disability rating if they believe that there has been an improvement in the disability.

Can I Fight the VA’s Rating Reduction?

Absolutely. You have the right to be heard and to file an appeal.

How Do I Fight a Rating Reduction?

You should hire a lawyer and submit evidence of your own to show that your disability has not improved.