Reductions In Ratings

[free_spirit_etc]

http://www.hadit.com/2007/ratingreduction.htm

5.9.4 Rating Reduction in Unprotected Cases (Cases Involving Disabilities Where the Veteran Does Not Have Either a Total Disability or a Disability Rating That Has Been in Effect for Five Years or More)

Although the protections discussed above in Sections 5.9.2 and 5.9.3 are limited to total (100%) disabilities and disabilities where the rating has been in effect for five years or more,453 the advocate may still wish to argue that other VA regulations and substantive rules protect a disability rating from being reduced. In Faust v. West,454 the CAVC made clear that the VA is required to comply with several general VA regulations regardless of the rating level or the length of time that the rating has been in effect. For example:

· Any proposed reduction must be based upon review of the entire history of the veteran's disability;

· The VA must determine whether there has been an actual change in the disability;

· Any improvement must reflect an improvement in the veteran's ability to function under the ordinary conditions of life and work; and

· Examination reports reflecting any such change must be based on thorough examinations.

**Advocacy Tip** The following argument includes boilerplate language that an advocate may wish to use in such a case.

VA regulations impose a duty on the VA to make an explicit finding that the preponderance of evidence shows that there has been improvement in any disability rating that the VA proposes to reduce. Specifically, 38 C.F.R. § 4.1 (2002) states that "t is . . . essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history." Similarly, 38 C.F.R. § 4.2 (2002) establishes that "t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." These provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability. . . . Furthermore, 38 C.F.R. 4.13 (2002) provides: "When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms."

Pursuant to these provisions, it is obvious that in any rating-reduction case, the RO and BVA are required to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.455

Thus, the VA is required to review the entire evidence of record and to determine and make an explicit finding as to whether the evidence shows that there is an actual improvement in a veteran's disability since the last rating decision which either granted or continued the disability rating before the VA may reduce the disability rating.

In addition to these VA regulations, the Manual M21-1, Part VI, paras. 9.03(a) and (f) requires the VA to make findings that the evidence demonstrates improvement before a rating reduction is made. It states the following:

Reasons And Bases. An examination which is the basis for reduction must be as thorough as the examination which established the current rating. Cite the symptoms and the findings demonstrating improvement in the context of the whole recorded history and evidence of improved ability to function under the ordinary conditions of life and work.. [sic] In psychiatric cases, outline social and economic adjustments along with the other evidence warranting the reduced evaluation. . . . [sic]

(emphasis added).

Thus, the Manual M21-1 also requires a finding of improvement before a reduction is made in an ongoing disability rating. Therefore, 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.

Footnotes

453. See Smith (Raymond L.) v. Brown, 5 Vet. App. 335, 339 (1993).

454. 13 Vet. App. 342, 349 (2000).

455. Brown (Kevin), 5 Vet. App. at 420-21. See also Lehman, 1 Vet. App. at 342-43 (finding that the Board violated 38 C.F.R. §§ 4.1, 4.2 where the Board relied upon one medical report which drastically differed from all other evidence of record without reconciling the evidence).

[cowgirl]

Free, experience and intuition has probably got me worrying about this particular exam. Honestly, I've had foggy thinking after this 'freindly' exam and then you go and help clarify my concerns using the manuals of all things! Well, ya' hit the bull right on the nose with this post, THANK you! You are so good! Guess I'm calmer now, but can't relax in the saddle until I read the report. I'll post how I feel about the c&p when I get it, thanks bunches!! cg

[free_spirit_etc]

Maybe we should send a copy to your RO - so they can read it too. The we would all be on the same page! ;)

It never hurts to be prepared when dealing with scoundrels. ;)

Free

Free, experience and intuition has probably got me worrying about this particular exam. Honestly, I've had foggy thinking after this 'freindly' exam and then you go and help clarify my concerns using the manuals of all things! Well, ya' hit the bull right on the nose with this post, THANK you! You are so good! Guess I'm calmer now, but can't relax in the saddle until I read the report. I'll post how I feel about the c&p when I get it, thanks bunches!! cg