Those people who develop the ability to continuously acquire new and better forms of knowledge that they can apply to their work and to their lives will be the movers and shakers in our society for the indefinite future.
    Brian Tracy




A Proposal To Reduce Benefits


Jim;

I am noticing a lot of VA "reduction in benefits" complaints on your website, and I was wondering what, in your opinion, is the best way to avoid reduction in benefits. I am currently 50% service
connected/combat related from injuries sustained in Iraq.

Reply;

Great question. Thanks for writing.

Most have no worry. The "proposal of adverse action" to lower a rating occurs legitimately in many instances. For example, a veteran who has a cancer (or any other condition) and has treatment that cures the condition. Most often that is prostate cancer in the Vietnam veteran. Once cured, there can't be a rating for cancer. There will be a rating instead for the residuals of treatment such as scarring, loss of function, etc.

The other vets who have to worry a bit are those who are TDIU or "100% IU". Each year those vets are required to send in a form telling VA they have not worked for a salary. VA forgets to send the forms quite often so the vet doesn't send it in and then gets a proposal to reduce the benefit.

In the younger veteran, many conditions like PTSD are purposely awarded as temporary and a review or "future exam" is scheduled in the veterans VA "future calendar". There is a reasonable argument to be
made for this as many vets who undergo intense treatment for mental health conditions do measurable improve. Much like being rated for a badly broken bone, if the bone is fixed and there is no measurable
disabling condition left over, there is nothing to assign a rating to.

Many vets don't get the concept that a rating should reflect the actual degree of a disabling condition at the present time, not the past or possible future.

Older veterans (55 plus) are usually not viewed quite so closely because older folks don't heal as well or quickly.

Most conditions under close scrutiny are at the 100% level. The 100% rating is so much higher than 80% or 90% that it's the target that VA is most interested in reducing.

The goal that veterans should keep in mind is to establish that their condition is chronic and if it isn't getting worse, it is at least static. This means keeping doctors appointments regularly. Check your
medical records through ROI and ensure that your provider is making appropriate remarks. You should see plenty of references to your pain or whatever other symptom you have from your condition.

Vets who have civilian providers should do much the same and still check in with VA once or twice each year to get the visits into the health record.

Never skip prescribed physical therapy, keep prescriptions refilled and so on. If mental health treatment is prescribed, go to group or individual sessions.

You get the idea...building the record is paramount. This will also be a real plus if you believe your condition is worse in 5 or 10 years. To be able to document the progression of the disability will ensure
an easier process when you ask VA for an increase of the rating %.

The ones who lose most often are those who get 100% and have a party and never return to VA. Five years later with no records of treatment VA may assume they are so improved that they no longer need disability pay. Once that happens, the vet has a big problem.


Reductions

No matter what you may have been told, VA may at any time propose to reduce your existing rating.

In the Veterans Benefits Administration (VBA) lexicon, the words Permanent and Total do not mean Permanent and Total.

(This is not unlike 'VA Math where 2 + 2 rarely = 4. See the CRT  for more on that.)

If that seems wrong, incongruous or foreign to you, if you accept it as a fact and deal with it, you'll fare better in the future.

In a Proposal of Adverse Action; Reduction of Benefits, your VBA will refer to:

Title 38: Pensions, Bonuses, and Veterans' Relief, PART 3—ADJUDICATION
Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation, Administrative, § 3.105 Revision of decisions

Within § 3.105 you'll read of the many reasons that may apply to you at any time.

Keep in mind that although some of these seem to be so far removed from your circumstances that they can't possibly apply to you, VBA makes a lot of mistakes. Any one of these could happen just when you least expect it.

* Error (Where evidence establishes such error, the prior decision will be reversed or amended.)

* Difference of opinion (...a decision may be revised under §3.2600...)

* Character of discharge (A determination as to character of discharge or line of duty which would result in discontinued entitlement is subject to the provisions...of this section)

* Reduction in evaluation—compensation (Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.)

* Reduction in evaluation—pension (Where a change in disability or employability warrants a reduction or discontinuance of pension payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.)

* Reduction in evaluation—monetary allowance under 38 U.S.C. chapter 18 for certain individuals who are children of Vietnam veterans (Where a reduction or discontinuance of a monetary allowance currently being paid under 38 U.S.C. chapter 18 is considered warranted, VA will notify the beneficiary at his or her latest address of record of the proposed reduction...)

* Other reductions/discontinuances (Except as otherwise specified at §3.103(b)(3) of this part, where a reduction or discontinuance of benefits is warranted by reason of information received concerning income, net worth, dependency, or marital or other status, a proposal for the reduction or discontinuance will be prepared setting forth all material facts and reasons.)

So much for that "permanent" designation, right?

Only when you've held your rating continuously for 20 years are you in a "protected" category.

§ 3.951 Preservation of disability ratings.

(b) A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes which has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation.


OK Jim, you have my full attention. Now what am I supposed to do?


This information is provided courtesy of;

Katrina J. Eagle, Attorney at Law


Reductions and Severances; How To Challenge A VA Proposal to Reduce or Take Away A Veteran’s Monthly Compensation

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.