Many Veterans are nervous that they could potentially lose their disability benefits in the future. If the VA thinks a disability potentially reduced in severity over time, they may send a notification of rating reduction. This does not mean your rating will be reduced without first having a chance to prove your disability has not improved.
There are several different approaches the VA can take to reduce benefits. However, if they do propose reducing your disability rating, this is not final. You can still do certain things to maintain your current disability rating. Of course, the possibility of a rating decrease is heavily dependent on whether the case is protected or unprotected.
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.”
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. This is known as the 20 year rule, and protects veterans from a reduced rating.
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.
When Veterans have unprotected disability ratings, there is a potential that their disability rating could be reduced. This does not mean the VA can reduce your rating for no reason. 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:
If the VA cannot prove any of the above, your rating should not be reduced.
When the VA determines a rating reduction is proper, due process protections also 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. If you recently received a notification of a rating reduction, you should ensure you are prepared to use evidence to demonstrate that your disability has not improved over time.
If the VA reduces your rating, don’t give up. There are many ways to fight this decision. One of them is hiring Berry Law Firm’s team of veterans’ law attorneys.
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. In fact, many of the Veterans on our team have current disability ratings. Our firm has worked closely with veterans for over fifty years and we have recovered millions of dollars in back pay awards on their behalf.
If the VA has reduced your disability rating, contact Berry Law Firm today. Your consultation is free. Don’t go to battle alone. Let Berry Law help you fight the VA for the disability compensation you earned.
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