You have finally gotten the correct rating and effective date for your disability. The fight for your benefits is done, and you can finally rest easy. Time passes, and you receive a letter from the VA proposing a rating reduction. How does this happen? What can you do?
First, do not panic. There are safeguards in place to make sure that rating reductions, or termination of service-connection, are not taken lightly. The first letter you receive is going to be a Notice of Adverse Action. After you receive this letter, you have 60 days to respond before the rating can be reduced. This is the time to submit evidence showing that the adverse action should not be taken. Buddy statements, doctor’s opinions, and a personal statement regarding the disability can all be helpful in this case. Additionally, a veteran can request a hearing within 30 days of the notice.
Here are some of the rules involved when the VA proposes to reduce a rating:
- A proposed reduction must be based on a review of the entire history of the veteran’s disability. This means that the VA cannot just reduce your rating because of one good doctor’s visit or a good exam. In the same vein:
- The VA must determine there has been an actual change in the disability since the last rating decision.
- The actual change must reflect a material improvement in the veterans ability to function, and
- Material improvement must be based on a thorough examination.
In addition to the general rules above, the M21-1 provides that the rating decision must:
- Outline the period on which the reduction is based,
- Describe the specific evidence of sustained improvement after one review examination or a sustained improvement based on more than one examination, and
- Provide an explanation as to why it is reasonably certain that the improvement will be maintained.
In addition to the above rules, there are special provisions for ratings that have been in effect for longer periods.
Rating Older Than 5 Years
If the rating has been effective for 5 years or more, it is considered a stabilized rating. The VA cannot reduce a stabilized rating without all evidence of the record pointing to sustained improvement of the disability.
In effect, the means the VA cannot use a single examination as a basis to reduce a rating. 38 C.F.R § 3.344(a), states that the VA must consider “the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of the general examination and the entire case history.” Once the VA has determined that the entire record shows material improvement, the board has to consider “whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.” Or, The VA must prove that the improvement will remain given day-to-day stressors, illness, etc.
If there is doubt in the rater’s mind as to whether the condition has improved, OR would continue to be improved under ordinary conditions, the VA should not reduce the rating.
When a condition has been rated for twenty years, or more, at a continuous level, the VA cannot reduce the rating below the original rating level unless it is determined the original rating was based upon fraud. This includes retroactive and CUE claims going back over twenty years.
An example would be a decision by the BVA (today) granting PTSD back twenty years, to 1997, at 70% disability. The 70% is then protected by the twenty-year rule. If in the future, the veteran’s condition improves and a C&P examiner assigns a 50%, or even 30%, the rating cannot be reduced below the original 70% because it has become a protected rating.