The A to Z Guide to VA Disability Benefits
JimStrickland912
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Your application for veterans disability compensation benefits completes a lengthy and complex process before you learn of the outcome or decision. You must apply, your eligibility must be verified, the diagnosis of your claimed condition is confirmed with evidence gathered by or for you and at the end of all those steps, the accumulated data is placed in front of a Ratings Veterans Service Representative.
The RSVR then considers applicable law, rules and regulations together with the data in your file and determines a rating for your condition. This rating is multi-faceted and will be comprised of the degree of the disability stated as a percentage, whether the condition is anticipated to be permanent or temporary and whether the condition(s) are thought to be totally disabling.
The Percentage of Disability
In the VA system, ratings are assigned in degrees of 10% to signify the severity of the condition and what it may represent in lost income to you.
The RSVR uses his or her education, experience, training and multiple reference sources to determine the rating. An often referred to guide for the RSVR is the M21-1MR.
While that may sound reasonable on the surface, it quickly becomes very complex. To fully understand the ratings one must look at not only the M21-1MR but also The Schedule For Rating Disabilities and The Index of Disability Examination Worksheets.
If a single condition has been the focus of the claim, the process is relatively easy to understand. For example, a knee joint that was injured in a fall while in training may have limited motion. The RSVR will look at how limited the motion is and assign a percentage of disability that will probably fall within the 10% to 40% range.
If there are multiple conditions involved, VA does not total those up by adding one percentage to the next and so on. If you have applied for and been awarded a service connection for 3 conditions that are rated as 20% and 20% and 40% disabling, it's not very likely that your final rating will be a total of 80%.
Your VBA uses the Combined Ratings Table to total the accumulated ratings.
It is explained that; "Table I, Combined Ratings Table, results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less
disabling conditions, if any, in the order of severity. Thus, a person having a 60 percent disability is considered 40 percent efficient. Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled, as shown in table I opposite 60 percent and under 30 percent."
I've not found a simple way to explain the CRT. It's best that you open the link above and follow the examples presented and then set up a few exercises of your own.
100% Disabled
Ratings of 100% are unique. You may be rated at 100% disabled after having a condition or multiple conditions that equal 100% on the Schedule For Rating Disabilities (A 'schedular' rating) or you may be assigned a 100% rating due to Individual Unemployability (IU).
The payment to you is the same no matter which category you are assigned. Either of the 100% categories may be rated as temporary or permanent. There is no rationale to believe that one 100% rating is "better than" the other. There are differences between the 2 ratings but to most veterans, that you are schedular rated or IU isn't a point that matters much.
The single most important difference between a 100% schedular rating and an IU designation is that the veteran rated with the Individual Unemployabilty label is not allowed to work to a level of gainful employment while the veteran who is schedular rated may work at any profession and achieve any income he or she is able to. "Gainful employment" is usually defined as full time work that earns an income that is about equal to the defined federal poverty level.
Neither rating is fully protected from a future action to lower the rating. Only after 20 years of a continuous rating of 100% is the veteran protected from action by VBA to reduce the rating.
It's simple enough to understand how a schedular rating is achieved. The Individual Unemployability designation is much more complex.
Individual Unemployability
The VBA recognizes that although a veteran may not have a disability or set of disabilities that add up to 100% on The Schedule, the severity of the service connected conditions, when seen as a part of the whole, may prevent the veteran from seeking and holding gainful employment.
If the veteran has a disability or a set of disabilities that add to 100%, the rating is often called "100% Schedular" to differentiate from 100% IU.
In this case the veteran may be assigned a 100% rating as Individually Unemployable. To meet the requirements that will allow the veteran to apply for an IU rating, he or she must have a single rated condition of at least 60% or multiple rated conditions that total 70% with one of those conditions equaling at least 40%.
One of the best descriptions available that will clearly define what IU is was made in 2005 as an address to a Senate Veterans Affairs Committee. Click here to read that testimony.
FAQ's
Q: If a veteran is rated 100% IU, is the veteran allowed to work?
A: The veteran may be allowed to pursue part time employment. The IU rating prohibits "substantially gainful employment". Gainful employment is considered to be full time, 12 months per year work that earns an income greatter then the federal poverty threshold.
Q: I received an employment questionnaire from the VA. I haven't worked in years and I'm not ever going to be able to return to work. My rating is P & T. Why do I have to fill out this form?
A: You are currently required to complete this form each year that you are rated 100% IU. The VA should mail it to you on or about the anniversary of your IU benefit award. If you don't complete and return the form, the VA will almost certainly proceed to propose to lower your rating. The wise veteran will remember this annual event and if VA doesn't mail the form, the veteran should download and complete and mail a form to VA. As with all mailing to VA, return the form using certified mail, return receipt requested. Your obligation to return the form ends at age 70.
Q: My spouse has just received a large inheritance. How will this additional family income affect my IU compensation?
A: It won't. A disability compensation award isn't subject to family income or a means test. The award is made only by guidelines that determine a veterans conditions and the resulting degree of disability. Windfall cash in the form of inheritances, gamblings winnings, the sales of property or any other income that isn't the result of substantially gainful employment will not have any effect on the rating.
Q: I've been told by my friends that I should file for more ratings so the I can achieve a schedular 100% rating and get out of the IU category. They say it's somehow a better and safer rating. Is this true?
A: Not particularly. VA may reexamine you at any time no matter if you are rated at 100% schedular or 100% IU. If they believe there has been improvement in your condition, VA may propose to lower your rating to a more appropriate percentage.
§ 3.327 Reexaminations.
(a) General. Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability.
As a rule, if the veteran holds a 100% schedular rating, to successfully reduce the rating VA must show improvement in the condition. If the veteran holds a 100% IU rating VA must show improvement in the condition and the ability of the veteran to hold substantially gainful employment.
Also see §3.326 Examinations.
Permanent or Temporary?
The veteran is finally rated 100%. She sees on the award letter “future exams are scheduled”. She learns that this means her spouse isn't eligible for CHAMPVA and her kids won't see the C-35 DEA benefits she hoped would help pay for their college.
The state she is in has generous benefits for permanently disabled vets but the “future exams are scheduled” keeps her out of those benefits. Her disability is one that does not seem to be likely to improve and she believes that she should be P & T and qualified to apply for CHAMPVA and DEA.
Should she ask VA for P & T? Is there a legal or regulatory basis to do so?
For more on Permanent and Total ratings, click here.
Also see;
§3.341 Total disability ratings for compensation purposes.
§3.342 Permanent and total disability ratings for pension purposes.
§3.343 Continuance of total disability ratings.
§3.344 Stabilization of disability evaluations.
Records
National Personnel Record Center
Reductions and Severances
How To Challenge A VA Proposal to Reduce or Take Away A Veteran’s Monthly Compensation
Katrina J. Eagle, Attorney at Law
www.veteranslawoffice.net
It is of primary importance for veterans to understand that no matter how entitled to VA compensation they may be, it does come with strings attached. VA service-connected compensation is meant to do just that – compensate a veteran for the inability of that veteran to earn a living or “obtain and, or maintain gainful employment” because of his or her service-related medical conditions. The VA takes the stance that all medical conditions have the potential to improve, resolve, and, or disappear completely (unless determined to be “permanent and total”). Thus, the VA orders re examinations in order to assess the current severity of the veteran’s service-connected disability.
Here are the key VA Rules and Regulations relevant to this issue:
a. The VA can (and will) schedule reexaminations for veterans who receive compensation benefits at any time. See 38 CFR § 3.327(a), (c) (2007).
b. If the veteran fails to appear for a reexam without good cause, the VA can (and will) reduce or discontinue the veteran’s monthly disability payments. See 38 CFR 3.655(c) (2007).
c. Generally, reexams are scheduled within 2 – 5 years of last VA exam, and are conducted so that the VA can assign a rating that reflects current severity of veteran’s disability.
d. But, the VA should not schedule a reexams if any of the following situations exist:
The disability is static;
Symptoms have persisted w/o material improvement for 5 years or more;
A disability from disease is permanent and not likely to improve;
The veteran is 55 y.o. or more; or
The rating assigned is the minimum rating or a reduction in a disability rating would not affect total combined rating. See 38 CFR § 3.327(b)(2) (2007).
e. Any rating evaluation that has “stabilized”, i.e., that it has “continued for a long period of time (5 yrs or more) at the same level” may not be reduced unless all evidence of record shows SUSTAINED IMPROVEMENT in the disability. See 38 CFR 3.344(a),(c) (2007).
Note: “Sustained improvement” must be based on all evidence of record; i.e., a change in rating cannot be based on single examination “in isolation of rest of the record”.
So, despite fitting into one of the 5 categories listed above, a veteran gets a letter in the mail from the VA informing him or her of the VA’s “proposal to reduce” the veteran’s disability evaluation for one or more service-connected conditions. First important aspect to realize: this letter (and any accompanying documents) is not a decision to which a veteran can submit a Notice of Disagreement. It is a proposal, but should be handled with the same care and concern as though the VA had made an actual decision.
The Process by Which the VA Will Attempt to Reduce a Veteran’s Service-Connected Disability Rating:
VA must send a notice specifying the proposed adverse action. See 38 CFR §§ 3.103(b)(2), 3.105(e) (2007).
VA must provide the veteran 60 days from the date of the notice by which to “submit evidence for purpose of showing that adverse action should not be taken.” BUT, VA need not give notice if the actual amount of compensation paid is not reduced as a result of proposed rating reduction.
In same notice, VA must inform veteran about right to a Predetermination Hearing. If the veteran wants one, he or she must request it within 30 days of notice. See 38 CFR § 3.105(i) (2007).
Predetermination hearing must be conducted by VA personnel NOT involved in initial proposed rating reduction. Whenever possible, request a predetermination hearing because it will delay the VA’s implementation of the reduction by some 2-3 months, thereby buying the veteran some time to obtain evidence to support his opposition to the proposed reduction.
Under the auspices of VA’s duty to assist, it must advise the veteran about the types of evidence – medical and nonmedical – that the veteran should submit to avoid a reduction in the disability rating. If the VA failed to properly notify the veteran, write a letter to VARO and ask for clarification and specificity.
If the veteran fails to respond and, or submit evidence within 60 days, then the VA issues final rating decision with notice that benefits will be reduced in 60 days.
Ways to challenge a VA proposal to reduce a veteran’s disability rating:
a) Review the most recent VA medical evaluation – was it “full and complete”? Any exam that is less thorough than the exam used to GRANT benefits may not be used as a basis for a reduction. See 38 CFR 3.344(a).
b) Consider the nature of the medical condition. If the disability is prone to temporary and episodic improvement, it cannot be reduced based on the findings of any one exam UNLESS all the evidence of record “clearly warrants the conclusion that sustained improvement has been demonstrated” AND the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. See 38 CFR § 3.344(a) (2007).
c) Review the VA’s historical evaluation(s) of the disability – has the VA assigned it a continuous rating? If a disability has been rated continuously at or above a particular rating level for 20 years or more, the VA cannot reduce the rating below that level, unless fraud has been committed. See 38 CFR § 3.951(b) (2007). Such a continuous rating is often referred to as a “protected rating.” This same 20-year rule also applies to rating levels that are assigned retroactively when a previous decision was revised based on CUE.
Beware of the misleading language in the VA regulation! The VA can reduce a “protected rating”, just never below the lowest rating ever assigned to it so long as it stayed at or above that lowest rating for 20 years or more.
Ways to challenge a VA proposal to reduce a veteran’s TOTAL disability evaluation:
a. In order for the VA to properly reduce a total (100%) disability evaluation, it must have examination findings of MATERIAL IMPROVEMENT in the disability. See 38 CFR § 3.343(a) (2007). But, “material improvement” must also be shown “under the ordinary conditions of life, i.e., while working or actively seeking work.” So, VA rationale must include review and comparison of the disability’s past AND current symptomatology. Also take note that the VA cannot reduce a total rating simply because its current symptoms equate to a lesser disability rating in the Diagnostic Code’s Schedule of Ratings.
b. Even when the VA properly shows MATERIAL IMPROVEMENT such that a total rating warrants reduction, if the veteran is unable to engage in “substantially gainful employment” because of the service-connected disability, the veteran must be awarded a total (100%) rating based on individual unemployability (aka “TDIU” or “IU”). See 38 CFR § 4.16 (2007). The VA cannot reduce a total rating based on TDIU unless “clear and convincing evidence” establishes that the veteran is capable of “actual employability.” See 38 CFR § 3.343(c) (2007).
Ways to challenge a VA proposal to reduce a veteran’s UNPROTECTED disability rating:
Even cases that involve disability ratings in effect for less than 5 years and, or less than total (100%) disability ratings (aka “unprotected cases) are subject to several VA rules and regs with which VA must comply:
a. Any proposed reduction must be based upon review of entire history of veteran’s disability;
b. The VA must determine whether there has been an actual change in the disability;
c. Any improvement must include the veteran’s ability to function under the ordinary conditions of life and work; and,
d. Exam reports reflecting any such change must be based on thorough examinations. See 38 CFR §§ 4.1, 4.2, 4.13 (2007).
Consider these arguments when challenging a reduction in an unprotected case:
a. The VA must outline the time period in which application of 38 CFR § 3.344 (re stabilization of disability eval) is based.
b. The VA must specify the medical evidence relied upon for proof of sustained improvement.
c. The VA must explain how it determined with reasonable certainty that improvement of the veteran’s medical condition(s) will be maintained under the ordinary conditions of life.
d. Thus, the VA may not lawfully reduce a disability rating unless it addresses whether the condition has actually improved since the time it was either granted or continued. See Manual M21-1MR, Part III, subpart iv, 8.D.12(b) 38 CFR §§ 4.1, 4.2, 4.13 (2007).
Regarding the VA’s severance of service-connected compensation, these are the two common circumstances:
a) Due to Fraud by Claimant –
b) The process and the due process protections are identical to when VA proposes a disability rating reduction.
c) Service-connected and DIC benefits (aka “widow benefits") are protected from severance after 10 years UNLESS fraud or lack of required length or character of service is discovered.
d) Due to clear and unmistakable error (C&UE) in the decision which granted service connection.
e) In these types of cases, the burden of proof is on the VA to substantiate C&UE. It’s worth also noting the C&UE in the context of severance is not the same as C&UE regarding other issue; in severance cases, evidence and, or info after decision was made can be considered.
f)Also, the VA need not prove C&UE in cases where service connection was “clearly illegal.”
Katrina’s tips for veterans facing a VA proposal to reduce a service-connected disability rating:
1. Ask for Predetermination Hearing whenever possible; make sure the veteran is credible and sympathetic!
2. Review VA proposals for findings that amount to “unsubstantiated medical conclusions”
3. Whenever possible, get a medical opinion from a treating physician that will counter a VA medical evaluation
4. Emphasize fact that veteran’s disability has not improved such that employment capabilities have improved; thus, reduction is improper.
See Vietnam
Ratings
Your application for veterans disability compensation benefits completes a lengthy and complex process before you learn of the outcome or decision. You must apply, your eligibility must be verified, the diagnosis of your claimed condition is confirmed with evidence gathered by or for you and at the end of all those steps, the accumulated data is placed in front of a Ratings Veterans Service Representative.
The RSVR then considers applicable law, rules and regulations together with the data in your file and determines a rating for your condition. This rating is multi-faceted and will be comprised of the degree of the disability stated as a percentage, whether the condition is anticipated to be permanent or temporary and whether the condition(s) are thought to be totally disabling.
The Percentage of Disability
In the VA system, ratings are assigned in degrees of 10% to signify the severity of the condition and what it may represent in lost income to you.
The RSVR uses his or her education, experience, training and multiple reference sources to determine the rating. An often referred to guide for the RSVR is the M21-1MR.
While that may sound reasonable on the surface, it quickly becomes very complex. To fully understand the ratings one must look at not only the M21-1MR but also The Schedule For Rating Disabilities and The Index of Disability Examination Worksheets.
If a single condition has been the focus of the claim, the process is relatively easy to understand. For example, a knee joint that was injured in a fall while in training may have limited motion. The RSVR will look at how limited the motion is and assign a percentage of disability that will probably fall within the 10% to 40% range.
If there are multiple conditions involved, VA does not total those up by adding one percentage to the next and so on. If you have applied for and been awarded a service connection for 3 conditions that are rated as 20% and 20% and 40% disabling, it's not very likely that your final rating will be a total of 80%.
Your VBA uses the Combined Ratings Table to total the accumulated ratings.
It is explained that; "Table I, Combined Ratings Table, results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less
disabling conditions, if any, in the order of severity. Thus, a person having a 60 percent disability is considered 40 percent efficient. Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled, as shown in table I opposite 60 percent and under 30 percent."
I've not found a simple way to explain the CRT. It's best that you open the link above and follow the examples presented and then set up a few exercises of your own.
100% Disabled
Ratings of 100% are unique. You may be rated at 100% disabled after having a condition or multiple conditions that equal 100% on the Schedule For Rating Disabilities (A 'schedular' rating) or you may be assigned a 100% rating due to Individual Unemployability (IU).
The payment to you is the same no matter which category you are assigned. Either of the 100% categories may be rated as temporary or permanent. There is no rationale to believe that one 100% rating is "better than" the other. There are differences between the 2 ratings but to most veterans, that you are schedular rated or IU isn't a point that matters much.
The single most important difference between a 100% schedular rating and an IU designation is that the veteran rated with the Individual Unemployabilty label is not allowed to work to a level of gainful employment while the veteran who is schedular rated may work at any profession and achieve any income he or she is able to. "Gainful employment" is usually defined as full time work that earns an income that is about equal to the defined federal poverty level.
Neither rating is fully protected from a future action to lower the rating. Only after 20 years of a continuous rating of 100% is the veteran protected from action by VBA to reduce the rating.
It's simple enough to understand how a schedular rating is achieved. The Individual Unemployability designation is much more complex.
Individual Unemployability
The VBA recognizes that although a veteran may not have a disability or set of disabilities that add up to 100% on The Schedule, the severity of the service connected conditions, when seen as a part of the whole, may prevent the veteran from seeking and holding gainful employment.
If the veteran has a disability or a set of disabilities that add to 100%, the rating is often called "100% Schedular" to differentiate from 100% IU.
In this case the veteran may be assigned a 100% rating as Individually Unemployable. To meet the requirements that will allow the veteran to apply for an IU rating, he or she must have a single rated condition of at least 60% or multiple rated conditions that total 70% with one of those conditions equaling at least 40%.
One of the best descriptions available that will clearly define what IU is was made in 2005 as an address to a Senate Veterans Affairs Committee. Click here to read that testimony.
FAQ's
Q: If a veteran is rated 100% IU, is the veteran allowed to work?
A: The veteran may be allowed to pursue part time employment. The IU rating prohibits "substantially gainful employment". Gainful employment is considered to be full time, 12 months per year work that earns an income greatter then the federal poverty threshold.
Q: I received an employment questionnaire from the VA. I haven't worked in years and I'm not ever going to be able to return to work. My rating is P & T. Why do I have to fill out this form?
A: You are currently required to complete this form each year that you are rated 100% IU. The VA should mail it to you on or about the anniversary of your IU benefit award. If you don't complete and return the form, the VA will almost certainly proceed to propose to lower your rating. The wise veteran will remember this annual event and if VA doesn't mail the form, the veteran should download and complete and mail a form to VA. As with all mailing to VA, return the form using certified mail, return receipt requested. Your obligation to return the form ends at age 70.
Q: My spouse has just received a large inheritance. How will this additional family income affect my IU compensation?
A: It won't. A disability compensation award isn't subject to family income or a means test. The award is made only by guidelines that determine a veterans conditions and the resulting degree of disability. Windfall cash in the form of inheritances, gamblings winnings, the sales of property or any other income that isn't the result of substantially gainful employment will not have any effect on the rating.
Q: I've been told by my friends that I should file for more ratings so the I can achieve a schedular 100% rating and get out of the IU category. They say it's somehow a better and safer rating. Is this true?
A: Not particularly. VA may reexamine you at any time no matter if you are rated at 100% schedular or 100% IU. If they believe there has been improvement in your condition, VA may propose to lower your rating to a more appropriate percentage.
§ 3.327 Reexaminations.
(a) General. Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability.
As a rule, if the veteran holds a 100% schedular rating, to successfully reduce the rating VA must show improvement in the condition. If the veteran holds a 100% IU rating VA must show improvement in the condition and the ability of the veteran to hold substantially gainful employment.
Also see §3.326 Examinations.
Permanent or Temporary?
The veteran is finally rated 100%. She sees on the award letter “future exams are scheduled”. She learns that this means her spouse isn't eligible for CHAMPVA and her kids won't see the C-35 DEA benefits she hoped would help pay for their college.
The state she is in has generous benefits for permanently disabled vets but the “future exams are scheduled” keeps her out of those benefits. Her disability is one that does not seem to be likely to improve and she believes that she should be P & T and qualified to apply for CHAMPVA and DEA.
Should she ask VA for P & T? Is there a legal or regulatory basis to do so?
For more on Permanent and Total ratings, click here.
Also see;
§3.341 Total disability ratings for compensation purposes.
§3.342 Permanent and total disability ratings for pension purposes.
§3.343 Continuance of total disability ratings.
§3.344 Stabilization of disability evaluations.
Records
National Personnel Record Center
Reductions and Severances
How To Challenge A VA Proposal to Reduce or Take Away A Veteran’s Monthly Compensation
Katrina J. Eagle, Attorney at Law
www.veteranslawoffice.net
It is of primary importance for veterans to understand that no matter how entitled to VA compensation they may be, it does come with strings attached. VA service-connected compensation is meant to do just that – compensate a veteran for the inability of that veteran to earn a living or “obtain and, or maintain gainful employment” because of his or her service-related medical conditions. The VA takes the stance that all medical conditions have the potential to improve, resolve, and, or disappear completely (unless determined to be “permanent and total”). Thus, the VA orders re examinations in order to assess the current severity of the veteran’s service-connected disability.
Here are the key VA Rules and Regulations relevant to this issue:
a. The VA can (and will) schedule reexaminations for veterans who receive compensation benefits at any time. See 38 CFR § 3.327(a), (c) (2007).
b. If the veteran fails to appear for a reexam without good cause, the VA can (and will) reduce or discontinue the veteran’s monthly disability payments. See 38 CFR 3.655(c) (2007).
c. Generally, reexams are scheduled within 2 – 5 years of last VA exam, and are conducted so that the VA can assign a rating that reflects current severity of veteran’s disability.
d. But, the VA should not schedule a reexams if any of the following situations exist:
The disability is static;
Symptoms have persisted w/o material improvement for 5 years or more;
A disability from disease is permanent and not likely to improve;
The veteran is 55 y.o. or more; or
The rating assigned is the minimum rating or a reduction in a disability rating would not affect total combined rating. See 38 CFR § 3.327(b)(2) (2007).
e. Any rating evaluation that has “stabilized”, i.e., that it has “continued for a long period of time (5 yrs or more) at the same level” may not be reduced unless all evidence of record shows SUSTAINED IMPROVEMENT in the disability. See 38 CFR 3.344(a),(c) (2007).
Note: “Sustained improvement” must be based on all evidence of record; i.e., a change in rating cannot be based on single examination “in isolation of rest of the record”.
So, despite fitting into one of the 5 categories listed above, a veteran gets a letter in the mail from the VA informing him or her of the VA’s “proposal to reduce” the veteran’s disability evaluation for one or more service-connected conditions. First important aspect to realize: this letter (and any accompanying documents) is not a decision to which a veteran can submit a Notice of Disagreement. It is a proposal, but should be handled with the same care and concern as though the VA had made an actual decision.
The Process by Which the VA Will Attempt to Reduce a Veteran’s Service-Connected Disability Rating:
VA must send a notice specifying the proposed adverse action. See 38 CFR §§ 3.103(b)(2), 3.105(e) (2007).
VA must provide the veteran 60 days from the date of the notice by which to “submit evidence for purpose of showing that adverse action should not be taken.” BUT, VA need not give notice if the actual amount of compensation paid is not reduced as a result of proposed rating reduction.
In same notice, VA must inform veteran about right to a Predetermination Hearing. If the veteran wants one, he or she must request it within 30 days of notice. See 38 CFR § 3.105(i) (2007).
Predetermination hearing must be conducted by VA personnel NOT involved in initial proposed rating reduction. Whenever possible, request a predetermination hearing because it will delay the VA’s implementation of the reduction by some 2-3 months, thereby buying the veteran some time to obtain evidence to support his opposition to the proposed reduction.
Under the auspices of VA’s duty to assist, it must advise the veteran about the types of evidence – medical and nonmedical – that the veteran should submit to avoid a reduction in the disability rating. If the VA failed to properly notify the veteran, write a letter to VARO and ask for clarification and specificity.
If the veteran fails to respond and, or submit evidence within 60 days, then the VA issues final rating decision with notice that benefits will be reduced in 60 days.
Ways to challenge a VA proposal to reduce a veteran’s disability rating:
a) Review the most recent VA medical evaluation – was it “full and complete”? Any exam that is less thorough than the exam used to GRANT benefits may not be used as a basis for a reduction. See 38 CFR 3.344(a).
b) Consider the nature of the medical condition. If the disability is prone to temporary and episodic improvement, it cannot be reduced based on the findings of any one exam UNLESS all the evidence of record “clearly warrants the conclusion that sustained improvement has been demonstrated” AND the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. See 38 CFR § 3.344(a) (2007).
c) Review the VA’s historical evaluation(s) of the disability – has the VA assigned it a continuous rating? If a disability has been rated continuously at or above a particular rating level for 20 years or more, the VA cannot reduce the rating below that level, unless fraud has been committed. See 38 CFR § 3.951(b) (2007). Such a continuous rating is often referred to as a “protected rating.” This same 20-year rule also applies to rating levels that are assigned retroactively when a previous decision was revised based on CUE.
Beware of the misleading language in the VA regulation! The VA can reduce a “protected rating”, just never below the lowest rating ever assigned to it so long as it stayed at or above that lowest rating for 20 years or more.
Ways to challenge a VA proposal to reduce a veteran’s TOTAL disability evaluation:
a. In order for the VA to properly reduce a total (100%) disability evaluation, it must have examination findings of MATERIAL IMPROVEMENT in the disability. See 38 CFR § 3.343(a) (2007). But, “material improvement” must also be shown “under the ordinary conditions of life, i.e., while working or actively seeking work.” So, VA rationale must include review and comparison of the disability’s past AND current symptomatology. Also take note that the VA cannot reduce a total rating simply because its current symptoms equate to a lesser disability rating in the Diagnostic Code’s Schedule of Ratings.
b. Even when the VA properly shows MATERIAL IMPROVEMENT such that a total rating warrants reduction, if the veteran is unable to engage in “substantially gainful employment” because of the service-connected disability, the veteran must be awarded a total (100%) rating based on individual unemployability (aka “TDIU” or “IU”). See 38 CFR § 4.16 (2007). The VA cannot reduce a total rating based on TDIU unless “clear and convincing evidence” establishes that the veteran is capable of “actual employability.” See 38 CFR § 3.343(c) (2007).
Ways to challenge a VA proposal to reduce a veteran’s UNPROTECTED disability rating:
Even cases that involve disability ratings in effect for less than 5 years and, or less than total (100%) disability ratings (aka “unprotected cases) are subject to several VA rules and regs with which VA must comply:
a. Any proposed reduction must be based upon review of entire history of veteran’s disability;
b. The VA must determine whether there has been an actual change in the disability;
c. Any improvement must include the veteran’s ability to function under the ordinary conditions of life and work; and,
d. Exam reports reflecting any such change must be based on thorough examinations. See 38 CFR §§ 4.1, 4.2, 4.13 (2007).
Consider these arguments when challenging a reduction in an unprotected case:
a. The VA must outline the time period in which application of 38 CFR § 3.344 (re stabilization of disability eval) is based.
b. The VA must specify the medical evidence relied upon for proof of sustained improvement.
c. The VA must explain how it determined with reasonable certainty that improvement of the veteran’s medical condition(s) will be maintained under the ordinary conditions of life.
d. Thus, the VA may not lawfully reduce a disability rating unless it addresses whether the condition has actually improved since the time it was either granted or continued. See Manual M21-1MR, Part III, subpart iv, 8.D.12(b) 38 CFR §§ 4.1, 4.2, 4.13 (2007).
Regarding the VA’s severance of service-connected compensation, these are the two common circumstances:
a) Due to Fraud by Claimant –
b) The process and the due process protections are identical to when VA proposes a disability rating reduction.
c) Service-connected and DIC benefits (aka “widow benefits") are protected from severance after 10 years UNLESS fraud or lack of required length or character of service is discovered.
d) Due to clear and unmistakable error (C&UE) in the decision which granted service connection.
e) In these types of cases, the burden of proof is on the VA to substantiate C&UE. It’s worth also noting the C&UE in the context of severance is not the same as C&UE regarding other issue; in severance cases, evidence and, or info after decision was made can be considered.
f)Also, the VA need not prove C&UE in cases where service connection was “clearly illegal.”
Katrina’s tips for veterans facing a VA proposal to reduce a service-connected disability rating:
1. Ask for Predetermination Hearing whenever possible; make sure the veteran is credible and sympathetic!
2. Review VA proposals for findings that amount to “unsubstantiated medical conclusions”
3. Whenever possible, get a medical opinion from a treating physician that will counter a VA medical evaluation
4. Emphasize fact that veteran’s disability has not improved such that employment capabilities have improved; thus, reduction is improper.