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Responding to Rating Reduction & Proper VA Procedure

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The VA process from start to finish can be a very long road.  However, once benefits are granted with the proper effective date and rating there can still be more involved and it is important to understand proper VA procedures to be prepared.  Unfortunately, the VA may believe a reduction ought to take place after a rating has been assigned to a service-connected disability.   To prevent reductions from being implemented lightly, they are only permitted when the legal guidelines have been satisfied.

As a part of the reduction process, the VA is required to send a notification proposing the reduction that is to take place, if the decrease will change your monthly benefit amount.  Otherwise, a notification letter is not necessary. This due process letter serves only as a proposal of what may occur and is not yet grounds for an appeal with a Notice of Disagreement. But you can still respond to fight the reduction.

Once the notification has been sent, a 60-day period begins for you to submit a response that must elapse prior to a final decision being prepared. Even though you have a full 60 days, the first 30 days of that time period is the most important.  Within the first 30 days, you are able to request a predetermination hearing that must be conducted by personnel unrelated to the proposed adverse action.  This is can be beneficial as it provides more time to gather evidence and explain why the reduction should not take place as nothing final can be adjudicated until the hearing has occurred.

It is important to submit as much medical evidence possible as all evidence filed must be reviewed prior to a final decision being issued.  Submitting an outside independent medical opinion can be especially important if there was an unfavorable compensation and pension exam performed.  If you choose not to submit evidence within the 60-day period, a final decision will be prepared and issued.  In the event the reduction has become finalized, you may now file an appeal with the proper Notice of Disagreement form.

In addition to the above procedure to limit reductions, there are also specific circumstances that help to protect your ratings.  If a rating is less than 100% and has been in effect for less than 5 years, it is considered unprotected but still has to follow the outlined regulations.  Once the rating has been in place for at least 5 years, it is considered stabilized and protected.  When a reduction is proposed, all evidence of record must show an improvement.  In other words, one exam cannot be the sole basis for the decision.  Additionally, if your disability is subject to temporary and episodic improvement, evidence must show sustained, continual improvement to allow a decrease.

After your rating has been continued for 10 years, there’s additional protection.  It may still be reduced if all of the implemented procedures are implemented, but it cannot be severed unless the original grant was from a fraudulent claim. Furthermore, if your rating has been in effect for 20 years or more, it cannot be reduced below the original percentage it was granted at.  For example, if a disability was assigned a 30% rating over 20 years ago, and then increased to 60%; the VA cannot reduce the rating below 30%.  Therefore, if you have a protected rating (and the VA does not find any fraudulent information from the original grant) the benefit will be guaranteed at the set minimum it had been assigned.  While it can be upsetting and frustrating to receive a reduction, the VA must reinstate any improperly reduced benefits if the above requirements were not met so it is imperative to respond urgently upon receiving a due process letter.

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