Protected Ratings

[carlie]

When the issue of Protected Ratings comes up

it usually is in reference to the 10 and 20 years

levels of protection.

Sometimes a comment might be thrown in about

a 5 year level of protection.

I just finished reading (2 hours of reading) a document

that makes specific mention of the 5 years protection rule.

http://www.bva.va.gov/docs/VLR_VOL3/4-DeutschAndBurriesci-DueProcessInTheWakePages220-262.pdf

Due Process in the Wake of

Cushman v. Shinseki: The Inconsistency of Extending

a Constitutionally-Protected Property Interest to

Applicants for Veterans’ Benefits

Emily Woodward Deutsch and Robert James Burriesci

" Once a beneficiary has been in receipt of benefits at a

particular rating for five or more years then the rating is considered

to be stabilized and additional requirements must be met prior

to reducing the evaluation.

191

After five years, in addition to the

above requirements, VA must provide the beneficiary with a full

and complete examination, in comparison with the examination

that was relied upon to grant the evaluation, prior to reduction,

and reduction will not be effected unless the examination reveals

sustained, material improvement.

192

In addition, after a particular

evaluation has been in effect for 20 years or more, then ordinarily

it may not be reduced.

193

The special protections triggered by an attempt to sever

or reduce a beneficiary’s entitlement make clear that VA provides

protections in excess of those required by the Due Process Clause’s

provision for a fair hearing as these due process protections focus

the burden of proof on the Government. As such, VA regulations

more than comply with the Due Process Clause."

The five years is alo supported by 38 CFR

Sec. 3.344 Stabilization of disability evaluations.

© 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 1