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Can the VA Decrease My Disability Rating?
Can the VA Decrease My Disability Rating?
We often hear from Veterans who are upset that their disability rating was decreased. They ask a question something along the lines of, “Can the VA decrease my disability rating? I am entitled to that money.” So, can the VA decrease your disability rating? The short answer is, “yes.” The long answer is, “it depends.” The VA does, from time to time, schedule re-examinations by a VA physician to determine the exact nature and extent of your current service-connected disabilities. The VA is not allowed, by law, to reduce your benefits without first giving you written notice: this is called Due Process. This is not unheard of for conditions that might get better over time with medications and other treatment. Some of those conditions include:
- obesity due to a disability
- range of motion of limbs that get better with physical therapy
- back pain that gets better, etc.
One of the worst things you can do that may put your disability rating at risk is to choose not to go to one of these re-examinations.
If you miss your re-examination, the VA may decrease or discontinue your benefits coverage and payments. There are some disabilities that are unlikely to improve, for example: a limb that is missing, your symptoms have persisted without improving for five or more years, you are over 55 years of age, or you are already at the minimum rating (0%). However, simply going to your exam will not “guarantee” that your rating will not be reduced. Here’s what to keep in mind when you attend (and you should attend) your exam:
- Be honest, brutally honest: the VA can only rate you depending upon your “actual” symptoms, if you have an embarrassing symptom, tell them – you can only get rated for what you tell your examiner.
- Do not minimize your symptoms: if your back hurts like hell, tell the examiner – this is commonly a problem for Veterans because they’ve been taught to “suck it up,” “embrace the suck,” “don’t be a whiner,” and so forth.
- Talk about flare ups: the VA examiner only knows what they see in the exam room, they do not see you reaching up for your painful shoulder after a long day of working or trying to get your trick knee “working” when you get off your knees at the end of the day. This information, about how you are “when you are at your worst,” is your true “disability picture” – make sure you share it with the examiner (see the two bullet points above).
- Bring a Buddy: this may seem odd, but a friend or spouse that is around you all the time may help you get over being shy or not wanting to talk. For some, a spouse may know you better than you know yourself.
- Write it down: this seems like common sense, and it is. When you are experiencing your symptoms and flare ups, write them down and bring them to the exam.
Continuous Rating & Incarceration
If your condition has been rated at a certain level for at least 20 years, it is considered a “continuous rating” and it cannot be reduced. The VA can increase your rating, but not decrease it. So, if you are 70% disabled for 23 years, the VA cannot reduce you to 30% after those 23 years.
It would not be advisable to get sent to jail in any case, but being incarcerated can reduce your benefits as well. After 60 days of confinement, the VA can reduce your benefits to only 10%, regardless of what it was before you “went in.” Stay out of trouble!
Preventing the VA from Decreasing Your Disability Rating
If the VA proposes to reduce your benefits, there are ways to prevent this (although it is not guaranteed to keep it from happening). You can see if a re-examination has been scheduled and, if not, schedule one. Then, DO NOT MISS IT! Sometimes, the VA schedules an exam and the Veteran does not get notified of the exam. If this occurs, contact the VA, inform them what happened, and request another exam. Another thing you can do is contact a VSO or an attorney to represent your interests.
VA Disability Attorneys
When choosing who to represent you in your claim against the VA, make sure you choose a Firm that has experience fighting the VA and is competent to represent you. You don’t have to go at it alone, we’re here to help. As always, don’t let an ad be the sole reason you choose to hire a law firm: look at their reputation, their attorneys. and their experience. Choose a law firm that fits. You’ve fought long enough, let us fight your next battle.
Established in 1965 by Vietnam War veteran and attorney John Stevens Berry Sr., Berry Law Firm is a team of veterans dedicated to defending, safeguarding, and fighting to protect the rights of veterans. Over the decades, thousands of veterans from across the country and all branches of the military have trusted our firm with their cases and, more importantly, their futures.