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Can My Disability Rating Be Reduced By The VA?

Veterans who are seeking an increased rating or service connection for a new disability often ask whether re-opening their file can cause the VA to reduce their existing rating. This is a valid concern. Disabled veterans must weigh their options and determine whether their disability has really worsened so as to deserve an increased rating or whether they are entitled to service connection for their new disability prior to filing a new claim. If the veteran has a valid claim, though, it is probably worth filing the new claim.

If the VA determines that a veteran’s disability has improved, it can, in fact, reduce the current disability rating. It may do this at any time that a medical exam indicates that the veteran’s condition has improved—whether or not the veteran has filed additional claims. While the VA may legally reduce a veteran’s rating, however, there are rules about when and how the VA can accomplish a reduction. Even for an “unprotected” rating—one which is less than 100% and has been in effect for less than 5 years, the VA must review all of the evidence and not reduce merely on the strength of an exam which is not thorough and supported by the evidence. In addition, the VA must notify the veteran of its intent to reduce the rating and allow the veteran to respond. At that point, it is important that the veteran take an active role in providing the VA with any evidence that shows the severity of the disability has not improved. The veteran should attend any medical examinations required by the VA to avoid being reduced merely for not showing up to the exam.

Once a veteran’s disability rating has been in effect for at least five years, the VA considers that disability “stabilized” or “protected.” Again, the VA should consider all medical evidence pertaining to the veteran’s disability and may not reduce the rating based on a single medical exam that indicates improvement where the remainder of the medical evidence indicates that the veteran’s disability is still at the same level. In addition, though, VA must show that the veteran’s condition has undergone a sustained improvement in order to reduce a stabilized rating. Certain disabilities become symptom-free after extended periods of bed rest, but that does not mean the disabilities have improved for VA rating purposes. The VA may not reduce a stabilized rating where the improvement is only due to the veteran’s having been on bed rest or if it is otherwise clear that the veteran’s improvement could not be maintained if the veteran returned to the ordinary conditions of life. If there is any doubt about whether a stabilized rating has improved, the VA should not reduce that rating.

After ten years, service connection of a disability gains an additional protection. Once a veteran’s disability has been service connected for ten years, the VA may not sever that service connection unless the original grant of service connection was based on fraud by the veteran or if the veteran clearly did not the required length of service or character of discharge. The actual disability rating may still be reduced, according to the requirements for a stabilized rating, but the VA may not sever service-connection for the disability.

In the case of a veteran whose disability has retained a certain level of disability rating for at least twenty years, VA may not reduce that rating for anything less than a showing that such rating was based on fraud by the veteran.

One other type of protected rating is a total or 100% disability rating. Where a veteran has been granted a total disability rating based on the severity of his condition (not including a 100% rating based on unemployability), that rating should not be reduced without an examination which clearly shows material improvement and, in addition, shows that such improvement happened while the veteran was working or actively seeking work or otherwise participating in the ordinary conditions of life such that the veteran could work and still maintain this improvement. This is true regardless of whether the veteran’s disability rating has been in effect for more or less than five years.

Different rules apply when the veteran’s 100% rating is an unemployability (IU or TDIU) rating. Here, if there is clear evidence that the veteran has had a marked improvement and can work or is working. Because of this, a veteran who has a total rating based on unemployability should pay close attention to the reporting requirements for this type of rating. It is crucial that a veteran submit the annual employment certification forms required by the VA indicating that he has not worked in the past year to avoid a reduction.

In short, VA is permitted to reduce disability ratings. VA is required, though, to follow the rules and regulations in making such a reduction. If VA proposes to reduce your disability rating or sever service connection for your disability, you should consider seeking help with your claim.

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by Attorney Shannon Brewer
December 14, 2012

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