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broncovet

Can the VA reduce your rating??

Question

http://themilitarywallet.com/can-the-va-reduce-disability-benefits/

My summary:  

     Yes, the VA can reduce your rating if your conditions improved.  However, there are protections at 5 year, 10 years, and 20 years which help shield you.  If your rating is temporary, the VA can reduce you rather easily, but if you are over 5 years or P and T, then its tough for VA to reduce you.  

      When ever you seek an increase is "NOT" one of the reasons VA can use to reduce you.  Seeking an increase is independent of a rating reduction.  Whether or not you improved, and whether or not your rating is protected is relevant, but seeking an increase is not relevant to reductions.  If you think you deserve an increase, by all means apply.  

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2 hours ago, broncovet said:

http://themilitarywallet.com/can-the-va-reduce-disability-benefits/

My summary:  

     Yes, the VA can reduce your rating if your conditions improved.  However, there are protections at 5 year, 10 years, and 20 years which help shield you.  If your rating is temporary, the VA can reduce you rather easily, but if you are over 5 years or P and T, then its tough for VA to reduce you.  

      When ever you seek an increase is "NOT" one of the reasons VA can use to reduce you.  Seeking an increase is independent of a rating reduction.  Whether or not you improved, and whether or not your rating is protected is relevant, but seeking an increase is not relevant to reductions.  If you think you deserve an increase, by all means apply.  

What about age> I was awarded 100% P & T in December 2015, and letter stated no more exams. I will be 69 in November. I thought there was some protection if you were over 65?

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Read the link.  It explains the VA isnt "supposed" to call for (reduction) exams over age 55.  

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In a nutshell:

5 years
- Can reduce % if all evidence of record shows sustained improvement
- SC status can be severed (they must follow due process, i.e. fraud, CUE).

10 years
- % can be reduced
- SC status can be severed due to fraud

20 years
- %'s maintained for 20 years cannot be reduced
- SC status cannot be severed

 

Here's a Hadit article about it:
https://www.hadit.com/rating-reduction-or-sever-service-veterans-affairs-proceedings

 

Below are the current regulations involving protected ratings of various degrees. Of course, these do not cover other ways ratings or SC payment can be removed, such as fraud or being incarcerated.

https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=203bd8367355b9442778b10b54ef86e2&mc=true&n=sp38.1.3.a&r=SUBPART&ty=HTML#se38.1.3_1344

Quote

§3.344   Stabilization of disability evaluations.

(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, §3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

[26 FR 1586, Feb. 24, 1961; 58 FR 53660, Oct. 18, 1993]

 

 

 

https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=203bd8367355b9442778b10b54ef86e2&mc=true&r=SECTION&n=se38.1.3_1951

Quote

 

§3.951   Preservation of disability ratings.

(a) A readjustment to the Schedule for Rating Disabilities shall not be grounds for reduction of a disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability to be evaluated has actually improved.

(Authority: 38 U.S.C. 1155)

(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.

(Authority: 38 U.S.C. 110)

[34 FR 11970, July 16, 1969, as amended at 57 FR 10426, Mar. 26, 1992]

 

 

https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=203bd8367355b9442778b10b54ef86e2&mc=true&r=SECTION&n=se38.1.3_1952
 

Quote

 

§3.952   Protected ratings.

Ratings under the Schedule of Disability Ratings, 1925, which were the basis of compensation on April 1, 1946, are subject to modification only when a change in physical or mental condition would have required a reduction under the 1925 schedule, or an increased evaluation has been assigned under the Schedule for Rating Disabilities, 1945 (looseleaf edition), after which time all evaluations will be under the 1945 schedule (loose-leaf edition) only. Such increased evaluations must be of an other than temporary nature (due to hospitalization, surgery, etc.). When a temporary evaluation is involved, the 1925 schedule evaluation will be restored after the period of increase has elapsed unless the permanent residuals would have required reduction under that schedule, or unless an increased evualation would be assignable under a 1945 schedule (looseleaf edition) rating. In any instance where the changed condition represents an increased degree of disability under either rating schedule but the evaluation provided by the 1945 schedule (looseleaf edition) is less than the evaluation in effect under the 1925 schedule on April 1, 1946, the 1925 schedule evaluation and award are protected.

[26 FR 12766, Dec. 30, 1961]

 

 

https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=203bd8367355b9442778b10b54ef86e2&mc=true&r=SECTION&n=se38.1.3_1957
 

Quote

 

§3.957   Service connection.

Service connection for any disability or death granted or continued under title 38 U.S.C., which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The 10-year period will be computed from the effective date of the Department of Veterans Affairs finding of service connection to the effective date of the rating decision severing service connection, after compliance with §3.105(d). The protection afforded in this section extends to claims for dependency and indemnity compensation or death compensation.

(Authority: 38 U.S.C. 1159)

[33 FR 15286, Oct. 15, 1968]

 

 

 

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I think it sucks to make us wait 20 years to be safe grrrr that in its self can make us depressed.

especially when the disability is not expected to improve or its Permanent in Nature.

I am hoping they change the 20 year rule to 10 years, all us older veterans that had to wait 20 years is hard enough, so hopefully the younger veterans won't have to endure the things we older vets had to.

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1 hour ago, Buck52 said:

I think it sucks to make us wait 20 years to be safe grrrr that in its self can make us depressed.

especially when the disability is not expected to improve or its Permanent in Nature.

I am hoping they change the 20 year rule to 10 years, all us older veterans that had to wait 20 years is hard enough, so hopefully the younger veterans won't have to endure the things we older vets had to.

Buck,
You are correct!

Who thought 5, 10 or 20 year thresholds would be a good idea? They introduce adversarial factors into what is intended to be a non-adversarial pro-veteran process.

Veterans are afraid to file claims for new, secondary, or worsening conditions, based on concern their existing conditions may be reevaluated and/or reduced.

Factors like "Permanent and Total" (P&T) and "Totally Disabled" (TDIU) should reflect a clear meaning instead of "until the VA changes their mind".

 

 

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