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 a rating reduction or to terminate service connection entirely. The good thing is that there are legal safeguards in place to protect veterans from arbitrary reductions. 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. In all cases, 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. This is especially important for disabilities that are prone to episodic improvements, such as manic depressive episodes, epilepsy, arteriosclerotic heart disease, asthma, gastric or duodenal ulcers, and many skin conditions. Ratings for such conditions should not be reduced on the basis of any one examination, except where all the evidence of record clearly shows sustained improvement.
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 schedular 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.
Finally, for the VA to reduce a 100 percent rating for individual unemployability, it must show that actual employability is established by clear and convincing evidence. As you may imagine, this is a high evidentiary burden for the VA to meet. In such situations, it may be a good idea to get an independent vocational opinion to show that you continue to be unemployable due to your service connected conditions.
If the VA does not follow the correct procedures for a rating reduction, the remedy is the reinstatement of the rating back to the date on which the rating was unlawfully reduced.
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