Need M21-1Mr Citation - Can't Reduce Rating

[tssnave]

Can someone please give me the citation in the M21-1MR that states that a rating cannot be reduced based on a single exam if the disability is episodic and sometimes resolves. I know I've printed it off before but I can't find it.

Thanks,

TS Snave

[jbasser]

At 5 years The VA cannot reduce rating based on a single exam.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=410fb34f33b9c19a1521ac427895d72d&rgn=div8&view=text&node=38:1.0.1.1.4.2.66.143&idno=38

J

[vaf]

Can someone please give me the citation in the M21-1MR that states that a rating cannot be reduced based on a single exam if the disability is episodic and sometimes resolves. I know I've printed it off before but I can't find it.

Thanks,

TS Snave

Jbasser gave you the appropriate statute in 38 CFR. However, you asked about the M21-1, and here is what it states there about rating reductions, in case you need this, too:

Section D. Reductions in Awards

Overview

In this Section This section contains the following topics:

Topic Topic Name See Page

11 Reductions in Compensation Under 38 CFR 3.105(e) 8-D-2

12 Reductions in Percentage Evaluations Under 38 CFR 3.344 8-D-5

13 Reductions in Disability Ratings Under 38 CFR 3.343 8-D-6

14 Reductions Requiring Consideration of Individual Unemployability Under 38 CFR 4.16 8-D-8

15 Changes in Pension Entitlement Under 38 CFR 3.105(f) 8-D-10

11. Reductions in Compensation Under 38 CFR 3.105(e)

Introduction This topic contains information about reductions under 38 CFR 3.105(e), including

• reducing or terminating compensation awards

• handling proof of substantially gainful employment

• when to apply the provisions

• concurrent increases and reductions

• authorizing reexamination

• reviewing new evidence and preparing the final rating, and

• determining the effective date.

Change Date December 13, 2005

a. Reducing or Terminating Compensation Awards The rating activity prepares a proposed rating decision to reduce a combined evaluation, or terminate a running award by reason of a change in the severity of a veteran’s service-connected (SC) disability or employability status.

b. Handling Proof of Substantially Gainful Employment If evidence of substantially gainful employment is received but not clearly shown, refer the case to the authorization activity to develop for continued individual unemployability.

If substantially gainful employment is established, take rating action under 38 CFR 3.105(e).

Continued on next page

11. Reductions in Compensation Under 38 CFR 3.105(e), Continued

c. When to Apply the Provisions Apply the provisions of 38 CFR 3.105(e) only if a lower evaluation of an SC disability would result in a reduction or discontinuance of compensation payments in a running award.

Note: If a case is in full suspense, make a reduction or discontinuance in accordance with the facts found under the authority of 38 CFR 3.500(a), but do not make a reduction or discontinuance based on a rating action prior to the date of last payment.

Reference: For more information on revising decisions, see

• 38 CFR 3.105, and

• 38 CFR 3.655.

d. Concurrent Increases and Reductions When both increased and reduced evaluations are assigned for different disabilities, but the net result is a higher combined evaluation, promulgate the rating evaluation without applying the provisions of 38 CFR 3.105(e).

Apply the provisions of 38 CFR 3.105(e) if the decreased evaluation will result in a reduction of benefits.

Note: The provisions of 38 CFR 3.105(e) do not apply if the combined evaluation, which would result from a decreased disability, is unchanged.

e. Authorizing Reexamination Authorize an examination if evidence, medical or otherwise, received prior to expiration of the first 60-day notice period in accordance with 38 CFR 3.105(e), establishes a reasonable basis for reexamination.

Notes:

• Defer final rating action pending the outcome of the new examination.

• An examination that is the basis for reduction must be as thorough as the examination that established the current rating.

Continued on next page

11. Reductions in Compensation Under 38 CFR 3.105(e), Continued

f. Reviewing New Evidence and Preparing Final Rating Review any new evidence, including a report of reexamination, in the context of the entire record, especially in employability cases. If a reduction is still in order, prepare the final rating decision in accordance with 38 CFR 3.105(e) and the provisions of this Section.

In the Reasons for Decision, 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.

Notes:

• In psychiatric cases, outline social and economic adjustments along with other evidence warranting the reduced evaluation.

• Although the Rating Veterans Service Representative (RVSR) should review the recorded history of a disability in order to assign a more accurate evaluation, regulations do not give past medical reports precedence over current findings. (See Francisco v. Brown (93-76), 1994.)

Reference: For more information on the reduction of total evaluations, including total evaluations based on individual unemployability, see 38 CFR 3.343.

g. Determining Effective Date After the notice of proposed adverse action has been sent and the 60-day period following that date has passed, prepare a final rating decision to reflect a lower evaluation. The lower evaluation is effective the first day of the month following expiration of a 60-day period of time that commences the date the veteran is notified of the final rating decision.

[tssnave]

J,

Thanks so much for the prompt reply. This was really driving me up a wall.

You got it. This is the reg I was looking for, it includes:

"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."

However, I didn't realize that was contingent upon the disability being rated for 5 or more years. Luckily, I'm passed the 5 year mark if for no other reason than it took the VA several years and two NODs before they rated my claim properly.

Thanks again for the prompt reply. I can file this now and try to get it out of my head.

Thanks,

TS

[tssnave]

VAF,

Thanks for the prompt reply.

For those who, like me, find the M21-1MR hard to locate stuff it, here's the whole citation to the Reduction in Awards section you posted:

M21-1MR, Part III, Subpart iv, Chapter 8, Section D

Have you ever wondered just how big and how many notebooks the entire M21-1MR actually is when it's printed out in its entirety? It's got to be massive.

Thanks,

TS

[deltaj]

Athough I don't known the M21 citation on this, it might be appropriate for you to do some reading online about rating reduction. Try searching on google under void ab inition AND veteran. Then try searching the website of the U.S. Court of Veterans Appeals under the phrase void ab initio. These searches should get you some interesting rating reduction cases.

[jbasser]

I would have posted the M21R but there is only 1 minor sentence at the bottom that actually refers to the regulation, so I posted the reg instead.

Aytime TS

J

Edited August 22, 2010 by jbasser