While it is easy to assume that once a veteran is awarded the correct rating with the correct effective date that the fight with the VA is now over, unfortunately there are some circumstances in which the VA seeks to reduce a disability rating or terminate service connection entirely. The good thing is that there are legal safeguards in place to assure that these reductions are not taken lightly. For instance, before reducing a veteran’s disability rating, the VA is required to send the veteran a notice of proposed reduction. The veteran then must be given 60 days to respond before the rating can be reduced. The veteran is also able to request a hearing within 30 days of the notice of proposed reduction. During that 60 day period, the veteran should submit any medical evidence that shows that his or her disability has not improved. It may also be a good idea to obtain an independent medical opinion, especially if the reduction is based on an unfavorable Compensation & Pension exam. After the 60 day period, a final rating decision may be prepared. At that time, the veteran has another 60 day period in order to submit evidence that shows the rating should not be reduced.
There are some situations in which it is more difficult for the VA to successfully reduce a veteran’s disability rating. If a veteran has a continuous, stable rating for a disability for five years or more, that rating cannot be reduced unless all evidence of the record shows that the disability has improved. This means that a single unfavorable piece of evidence (such as a C&P exam) is not enough on which to base a rating reduction. Evidence that is used to reduce a rating must be looked at in the entire context of the history of the disability, and an exam used to reduce a favorable rating must be at least as complete as the exam used to grant the rating. A reduction also may not be based on a temporary improvement of a disability, unless sustained improvement is shown.
If a veteran has a disability that has been continuously rated at a certain level for 20 or more years, the VA is not allowed to reduce the rating below that level unless the rating was based on fraud. Note that this rule applies even if there is a change in the nature of the disability or the disability improves. If a veteran has a 100 percent disability rating, the VA may only reduce that rating if there is material improvement in the veteran’s physical or mental condition. In determining whether a reduction from a 100 percent rating is allowed, the VA must compare the evidence it relied on in the most recent rating decision that continued the 100 percent rating with the evidence it wants to use to discontinue the 100 percent rating. As noted above, in such a case it would be a good idea for the veteran to get an independent medical evaluation and submit any evidence he or she has that shows there has been no material improvement in the veteran’s physical or mental condition. If the VA does not follow the correct procedures for a rating reduction, the remedy is reinstatement of the rating back to the date on which the rating was unlawfully reduced.
The process regarding severance of service connection, and the due process protections, are the same as the rules for rating reductions. The most common reasons that the VA severs a veteran’s service connection is fraud or clear and unmistakable error in the original service connection determination. Similar to the rules for rating reductions, service connection is protected in certain cases, such as if a veteran has been service connected for a certain condition for 10 years or more. In such cases, service connection can only be severed due to fraud.
Severance of service connection due to fraud is for the most part self-explanatory. If the VA alleges fraud, the veteran still has due process protections, including the right to submit evidence, the right to a hearing, and the right to representation by counsel. The other most common reason for the severance of service connection, clear and unmistakable error (CUE) in the decision that granted service connection, is more complicated. In such cases, the burden of proof is on the VA to show that in light of all the accumulated evidence, the diagnosis on which service connection was based is clearly erroneous. This requires the VA to show more than that there is just a difference of opinion. For instance, if one C&P examiner diagnoses a veteran with depression, and he is granted service connection based on that opinion, the fact that a later C&P examiner instead diagnoses the veteran with a personality disorder is not enough in and of itself to sever service connection. The VA is required to look at the evidence as a whole to determine whether the original grant of service connection was clearly erroneous.
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