How To Beat A Rating Reduction

How To Beat A Rating Reduction

Let’s talk for a moment about the letter no veteran wants to receive:  A letter from VA advising that it will reduce the veteran’s rating.  The VA is authorized to conduct periodic reevaluations of a veteran’s disability.  If the condition is improved, VA may propose a reduction in the rating.  VA must provide notice to the veteran prior to reducing a rating.  If VA reduced your rating without telling you in advance, that is probably a basis on which to reverse the reduction.

Reexamination

VA may order a reexamination of a veteran already receiving benefits.  Do not ignore the letter scheduling the examination.  If the veteran doesn’t attend the scheduled exam, VA can reduce the rating without further action.  After the veteran misses the exam, VA will reschedule only if the veteran has “good cause” for failure to report.  An example of “good cause” is the illness or hospitalization of the claimant or death of an immediate family member.  Bottom line, attend the exam or, if the schedule date/time is not convenient, work with VA to reschedule the exam.  But do not miss the scheduled examination.

Stabilization
Less than five years:

When a rating’s been in place for less than five years, it is not considered “stabilized.”  That does not mean, however, VA can reduce the rating in the absence of any evidence the condition has improved.   Regardless of the rating level or the length of time the rating was in effect, there are several general VA regulations which restrict the VA’s ability to reduce a current rating.

  • The rating reduction must “be based upon review of the entire history of the veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (U.S. 1993)
  • The evidence must reflect an “actual change in the disability.” Id.
  • The reports reflecting such change must be “based upon thorough examinations.” Id.
  • The improvement must also reflect “an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” Id.

If VA’s reduction relies on evidence which does not meet these requirements, the veteran should file a Notice of Disagreement.

Rating in effect five to twenty years:

When a rating has been in effect for more than five years, it is considered “stabilized.”  38 C.F.R. § 3.344(c).  VA may not reduce the rating unless “all the evidence of record” supports a finding that sustained improvement in the disability has been demonstrated.  38 C.F.R. § 3.344(a).  The VA cannot view the single examination upon which the reduction is based “in isolation from the rest of the record.” Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 CFR § 3.344(a).  Your job as the veteran is to show to the VA that “all evidence of record” shows that the condition has not improved.  Go through your medical records and find each doctor’s comment, lab test, note, or any other indicator that shows the condition has stayed the same or worsened.  Outline these bits of evidence in a Notice of Disagreement filed in response to the rating reduction.

“Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction.” 38 CFR § 3.344(a).  The veteran should also argue that the VA examination on which the reduction is based was not as thorough as the prior examination(s).  Point out any inconsistencies in the new exam’s conclusions. Argue that the exam on which the rating was originally based was more thorough than the new exam.  Does the older exam contain a summary of the veteran’s medical history? Does the older exam have a more complete review of the veteran’s symptoms? Is the older exam based on tests that were not done in conjunction with the new exam?

Rating in effect greater than twenty years:

Ratings in effect for more than twenty years may only be reduced if the VA discovers the rating was based on fraud.  38 C.F.R. 3.951(b).

100% ratings based on the severity of the condition:

Where a veteran is rated at 100% for a single condition (not multiple conditions combined), the 100% rating may be reduced only where an examination shows “material improvement” in the condition.  38 C.F.R. § 3.343(a).  Whether or not the veteran’s symptoms match those in the rating charts for a 100% rating becomes less relevant.  When reducing a 100% rating, the question becomes whether or not the veteran has experienced some “material improvement” in the condition.  Thus, to combat a reduction of a 100% rating, the veteran should gather his or her medical records and outline why there has not been an improvement or, if there is some improvement, that the improvement is incremental at best and does not rise to the level of a “material improvement.”

Also, the VA may only reduce a 100% rating if the improvement took place “under the ordinary conditions of life.”  38 C.F.R. § 3.343(a).  In other words, the VA must consider whether the improvement was made while the veteran was working or actively seeking work or whether the improvement was brought on by prolonged rest.  If the improvement was brought on during a period when the veteran was not working or actively seeking work, the VA must reexamine the veteran after a period of employment.

Total Disability Individual Unemployability (TDIU):

VA may not remove a veteran’s 100% rating based on unemployability unless “clear and convincing evidence” shows the veteran is capable of “actual employability.”  38 C.F.R. § 3.343(c).  First, this evidence must be affirmative evidence.  This means there must be a vocational report, doctor’s report, or some other document that affirmatively states the veteran is employable.  Affirmative evidence is not a lack of evidence which shows the veteran is incapable of work.  The VA must produce this affirmative evidence.  If VA removes a TDIU rating based on something other than a professional’s opinion that the veteran is employable, the veteran should dispute the reduction.  Second, “clear and convincing evidence” is a relatively high evidentiary burden.  The quality and quantity of the evidence stating the veteran is employable must significantly outweigh the quality and quantity of the evidence stating otherwise.

Conclusion

If VA reduced your rating without complying with these rules, the veteran should dispute the reduction by filing a Notice of Disagreement.  Even if the reduction occurred many years ago, an unlawful reduction can be overturned if there was clear and unmistakable error in the decision.  If VA’s reduced your rating, at any point in time, contact us to discuss your options for combatting the reduction.

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