Nearly every Veteran seeking VA benefits knows another Veteran who has had their benefits reduced or severed. It is one of the most common fears expressed by Veterans seeking legal counsel. They wonder, “If I appeal this claim for benefits, will I risk losing what I already have?” Along with this worry, they also wonder if their rating will ever be protected from such risk. The VA system does have some protections which can alleviate some stress about older or more severe claims. However, there are also some risks when appealing that Veterans should know about.
For Veterans who reach a 100% rating, they may be given a “permanent and total” distinction. While this does not guarantee any type of protection, it does mean that the VA will not schedule any further C&P examinations to check up on the status of the applicable disabilities. In other words, if the Veteran takes no further action, they are very unlikely to be reduced simply because the VA will continue to accept the status quo.
The other side of the coin is that appealing certain claims might result in the VA becoming aware (whether mistakenly or in fact) of improvements in the permanent and total condition. Since there is no protection for this type of distinction, the VA may reduce the underlying claim and sever the permanent and total distinction. This can be particularly upsetting because it would also mean the loss of Dependents’ Educational Assistance.
Unlike the permanent and total distinction, there are true protections for claims running longer than 10 and 20 years. Keep in mind, these protections are for individual claims, whereas permanent and total often covers the combined evaluation for several claims.
For individual claims in effect for 10 years, the VA cannot sever that benefit completely. However, the VA could reduce the claim from the current percentage rating, in some cases down to 0%. The protections for reduction do not come until 20 years have passed.
After a claim has been in effect for 20 years, it is considered continuous. That means that the VA can no longer sever or reduce the claim below the original rating level. Note that this does not mean 20 years since the date of the award of benefits (i.e., the Rating Decision), but rather the effective date. Theoretically, a Veteran could fight a claim on appeal for 20 years, be granted the effective date retroactively, and immediately incur these protections.
There are a few things to keep in mind, though, when relying on these protections. If the claim was ever increased within the 20-year period, only the original rating will be protected—not the increased rating. For both the 10- and 20-year protections, they can be severed in the case of fraud. If a Veteran lied about their disability, it wouldn’t matter how long they had been paid for it. The VA would be able to reduce or sever.
Berry Law is America’s Veterans Law Firm, and your fire support team to battle the VA. If you need assistance getting the VA disability compensation you deserve, we may be able to help. Contact our team of Veteran attorneys today for a free case evaluation.
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