When it comes to assigning rates to a condition, the VA is held to very strict regulations. This is meant to help minimize the amount of errors in assigning ratings. Of course, we all know that mistakes happen – a lot. The same goes for rating reductions. The VA has to abide by a stringent set of rules when they decide to reduce a rating. The purpose of this blog post is to go over some of these rules so that you—veterans receiving benefits—have an idea of what the VA can and cannot do when reducing ratings.
While there are specific rules involved in reducing specific kinds of ratings, there are several general rules that the VA must follow:
- 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
In addition, the VA Procedures Manual (M21) provides further requirements that the VA raters must follow when adjudicating rating reductions:
- The VA must outline the time period during which the condition is said to have materially improved
- The VA must cite evidence of sustained improvement after one review examination (C&P), or show that evidence predominantly demonstrates sustained improvement based on more than one exam.
- The VA must explain why it is reasonably certain that improvement will be maintained under the ordinary conditions of life
The VA has identified special cases in which certain ratings are protected from reduction in the absence of extenuating circumstances. These special cases are described as follows.
Ratings that have been in effect for 5 years or more:
Any rating that has continued at the same level for five years or more is considered to be a stabilized rating—whether it is at 10 percent or 100 percent. The VA cannot reduce such a rating unless all evidence in the record shows sustained improvement of the disability.
What does this mean? This means that the VA cannot rely on a single examination as a basis to reduce a rating that has been in effect for five years or more. In accordance to 38 C.F.R. § 3.344(a), the VA must consider “the entire record of examinations and medical-industrial history […] including all special examinations indicated as a result of general examination and the entire case history.” That is not all. Furthermore, in the event that the entire case history reflects a material improvement in a mental or physical condition, the rating board has to consider “whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.” In other words, the VA would have to prove that the improvement of the condition would remain improved under the ordinary stresses, illnesses, etc. of daily life.
This regulation also applies to conditions which can be subject to temporary or episodic improvement, such as manic depression or other psychosis, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, some skin diseases, etc. The VA cannot reduce a rating of such conditions based upon the results of one C&P evaluation.
If there is doubt as to whether or not a) the condition has improved or b) the condition would remain improved under the ordinary conditions of life, the VA should continue the current rating.
Ratings that have been in effect for 20 years or more:
For conditions which have been rated at or above a certain rating level for twenty years or more, the VA cannot reduce the rating below the original rating level unless they determine that the rating was based upon fraud. For example, if a veteran’s mental condition was originally rated at 30%, and fluctuated between 30% and 70% over the next twenty years, the VA cannot reduce the rating of the mental condition to a rating below the original 30% after that 20-year mark, unless it is proven that fraud was involved.
This rule also applies to CUE claims. If it was determined that, due to a Clear and Unmistakable Error, a veteran would receive a retroactive rating increase of twenty years or more, that rating would be protected from reduction later on down the road.