In a previous blog post, we discussed general rules which the VA must follow in reducing a veteran’s current rating. We also discussed two special cases – protected ratings for disability ratings that have been in place for 5 years or more and for 20 years or more. In this blog post, we are going to talk about several additional special cases.
Ratings that are Total (100%)
Ratings that have been evaluated as total at 100%, or are being paid at the 100% rate due to Individual Unemployability (IU), are protected from reductions unless there is clear and convincing evidence to prove that the condition has materially improved or that the veteran can now maintain substantially gainful employment. This protection, however, does not apply to Temporary 100% ratings due to convalescence or to pre-stabilized ratings (under 38 C.F.R. § 4.28, 4.29, and 4.30).
According to the VA’s internal adjudication procedures (the M-21), total ratings cannot be reduced without medical evidence showing material improvement in the physical or mental condition. The key here is “material”. The regulations specify “material improvement”, as opposed to “some improvement” or “limited improvement”. This means that the VA has to prove two things: 1) that the improvement was substantial and not minimal, limited or inconsequential; and 2) that material improvement was attained under the ordinary conditions of life while working or actively seeking work. Likewise, the VA adjudicators must also consider whether the material improvement was attained by bringing the symptoms under control by prolonged rest or generally by following a regimen in which maintaining employment would not be possible.
Even if the VA determines that the particular condition has materially improved, the 100% rating may not be entirely lost. If the veteran’s file reflects that the veteran is still unable to work due to the service-connected disability, the VA is required to award a total (100%) rating based on IU (as long as the new rating satisfies the requirements for Individual Unemployability under 38 C.F.R. § 4.16).
Rating Reductions in Unprotected Cases
(Cases involving disabilities that have not been rated as total or been in effect for 5 years or more)
In cases involving disabilities that are not protected, the VA still has rules that they must follow in deciding to reduce a rating. We discussed these general rules in the previous blog post on this topic. These rules include the following:
- Any proposed reduction must be based upon review of the entire history of the veteran’s disability
- The VA must determine whether there has been an actual change in the disability since the last rating decision
- Any improvement must reflect a material improvement in the veteran’s ability to function under the ordinary conditions of life and work
- Examination reports reflecting any such change must be based on thorough examinations
The Federal Regulations are very specific about reduction rules. For example, 38 C.F.R § 4.13 states that “when any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms.” In addition, the VA must explain why it is reasonably certain that the improvement can expect to be maintained under the ordinary conditions of life.
The good news is, when it comes to reductions, the VA bears the burden of proof. This means that the VA has to prove, without the shadow of a doubt, that the condition has materially improved—and improved under ordinary conditions of life (as in, not due to extended bedrest or a low-stress, low-key routine).
Reductions of Running Award
Running awards are disabilities that are not static and that may improve or worsen over time. The VA periodically schedules a reexamination so that the VA can assign an evaluation that accurately reflects the present level of the claimant’s disability. After the RO reviews the examination report, the claimant’s evaluation may be increased, reduced, or continued at the same level.
If the VA decides to reduce the rating, based on a C&P examination, the VA is required to issue a notice of proposed reduction. However, the VA is not required to notify the claimant of an award reduction if the reduction does not result in an alteration of the veteran’s current monthly compensation.
Notice of Proposed Reduction
A Notice of Proposed Reduction gives the veteran 60 days to submit evidence—essentially to dispute the proposed reduction—before the VA makes a final decision on the reduction. It should be noted that a notice of proposed reduction is not a final decision and cannot be appealed at this point. The veteran has 30 days to request a hearing. If the veteran does not respond within the 60 days, the RO will issue a final decision which enforces the proposed reduction. The VA will then begin the adjusted payments 60 days after the decision is issued.
If the veteran submits evidence within those 60 days, the RO is required to review that evidence and determine if the nature of the evidence establishes a reasonable basis for re-evaluating the condition. Likewise, if the veteran requests a hearing within 30 days of the date of the notice, the VA cannot begin to enforce the reduction until the hearing has taken place and a final decision has been issued.
The VA, in its own way, recognizes that veterans suffered for our country and worked so hard to obtain benefits that they so rightly deserve. So it would not be fair for VA adjudicators to reduce ratings—and ultimately monthly compensation—because they felt like it or happened to be in a bad mood that day. The strictness of the Federal Regulations is meant to prevent reductions from happening left and right. However, in the event that a veteran does receive notice of a proposed reduction, the veteran would benefit greatly by obtaining an expert opinion by a doctor or specialist to prove that the reduction is not warranted.
