There are several different approaches the VA can take to reduce benefits. Of course, the possibility of a rating decrease is heavily dependent on whether the case is protected or unprotected.
The Requirement of Sustained Improvement
If a rating has stabilized or continued at the same level for five years or more, the VA must show that all evidence of record indicates a sustained improvement in the disability. This means the medical history for the disability in question must be considered when reviewing records for a possible rating reduction. If the VA cannot show sustained improvement, it cannot reduce a Veteran’s rating.
The VA must also review the entire record of examinations to determine whether such examinations are full and complete. If not, they may not be considered in a VA rating reduction.
If the disability has shown temporary or episodic improvement, it cannot be reduced unless all evidence clearly shows sustained improvement. The VA must also consider whether the material improvement shown “will be maintained under the ordinary conditions of life.”
The Requirement of Fraud
If a Veteran’s disability has been rated at the same level for 20 or more years, the VA cannot reduce it unless it can show that the disability rating was based on fraud.
The Requirement of Material Improvement
When the VA considers reducing a 100% rating (including TDIU based on individual or combined rating), it must determine whether there has been a material improvement in the physical or mental condition evaluated at 100 percent. An examination is necessary for the VA to do this.
Additionally, if the Veteran has experienced material improvement on a schedular rating, VA must still consider whether he or she qualifies for TDIU.
Even if a Veteran’s rating has not been in place for five years or more, the Court of Appeals for Veterans Claims has established the following:
- Proposed reductions must be based on review of the entire history of the Veteran’s disability.
- The VA must make a determination as to whether there has been an actual change in the disability.
- Improvement in the disability must be shown in the Veteran’s ability to function under the ordinary conditions of life and work.
- Examinations reporting any such improvement must be thorough.
DUE PROCESS PROTECTIONS
When the VA determines a rating reduction is proper, due process protections apply. The VA must provide prior notice to the Veteran of the proposed reduction. The Veteran must be given 60 days after the notice to submit evidence to rebut the proposal (the 60-day notice requirement is not enforced in cases where the Veteran’s compensation will not be altered as a result of the reduced rating).
The Veteran also has a right to a predetermination hearing, which must be requested within 30 days of notification of the proposed VA rating reduction. The proposed reduction, if implemented, would not take effect until after this hearing has taken place.
In the event a Veteran receives a proposed VA rating reduction, it is important to provide any and all evidence to fight the VA’s proposal. If the VA schedules an examination, attendance is critical. Failure to do so will result in an automatic reduction.
Veterans Serving Veterans
If the VA unfairly reduces your rating, don’t give up. There are many ways to fight this decision. One of them is hiring a Veterans’ law attorney.
With many Veterans counted among our attorneys and staff, we know firsthand the struggles service members face when they return home with injuries and disabilities. Our firm has worked closely with Veterans for fifty years and we have recovered millions of dollars in back pay awards.