The A - Z Guide: Veterans VA Disability Benefits
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Reductions Of Existing Ratings

The Proposal To Reduce Benefits
















































Chapter 2 - Due Process

  • Table of Contents- Updated 9/27/11
  • Section A - General Information on Due Process - Updated 8/4/09
  • Section B - Notice of Proposed Adverse Action - Updated 8/19/05
  • Section C - Adverse Action Proposal Period - Updated 9/27/11
  • Section D - Contemporaneous Notice - Updated 8/4/09
  • Section E - Exhibits - Updated 8/4/09









Chapter 5 - Appeals

  • Table of Contents- Updated 9/27/11
  • Section A - General Information on Appeals - Updated 6/18/13
  • Section B - Notice of Disagreement (NOD) - Updated 6/18/13
  • Section C - Decision Review Office (DRO) Review Process - Updated 3/28/11
  • Section D - Statement of the Case (SOC) and Supplement Statement of the Case (SSOC) - Updated 2/6/12
  • Section E - Filing a Substantive Appeal - Updated 3/28/11
  • Section F - Docketing, Certification, and Claims Folder Transfer - Updated 6/18/13
  • Section G - Board of Veterans Appeals (BVA) Decisions and Remands - Updated 9/27/11
  • Section H - Board of Veterans Appeals (BVA) Hearings - Updated 6/18/13
  • Section I - Court of Appeals for Veterans Claims (CAVC) - Updated 8/19/05
  • Section J - Special Appeal Issues and Cases - Updated 9/27/11
  • Section K - Veterans Appeals Control and Locator System (VACOLS) -












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.