Question On 20 Year Rule

[lotzaspotz]

If an RO mistakenly pyramided a rating, which is to the benefit of the veteran, and the pyramided rating has been in existence over 20 years, does the RO have any statutory legal grounds to revoke the rating, once it discovers what happened? This is assuming there was no fraud involved, nor any misrepresentations made by the veteran.

Also, if the RO fails to lower a rating, say in the case of a kidney transplant, down from 100%, because it failed to schedule a C&P exam after one year, and the veteran has this rating for 20 years before the RO discovers it's oversight, can this rating be reduced? Also assuming no fraud or misrepresentations.

If the RO can revoke, even after 20 years, can I get the statute, please?

[brokensoldier244th]

I dont' think CUE's get the benefit of the '10 and 20' year rules.

[jbasser]

(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.

No they cannot reduce of sever if their mistake. You may have to fight it but the reg wins

Basser

[Tbird]

38 CFR 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]

Doing a search on USCAVC for the terms "Preservation of disability ratings" I'm not sure if any of these will be helpful but thought I would include them for your reference.

1. . 09-0158 (Quick View | Details | Similar)
b), entitled "Preservation of disability ratings ," provides in pertinent 17 Jun 2011

2. . (Quick View | Details | Similar)
for more than 20 years. The Secretary contends thatpreservation of disability ratings as specified in the second 26 Jun 2007

3. . 11-1342 (Quick View | Details | Similar)
at 21; see R. at 1983-85; cf. 38 U.S.C. § 110 (Preservation ofdisability ratings ); 38 C.F. 09 Jul 2012
3 hits
65.8K

[broncovet]

I agree with Basser/Tbird. "Finality" of ratings is a tool the VA uses against us often. We apply for benefits, the VA makes a mistake, but we dont appeal within a year. The mistake becomes "final". Now, the Vetran could try to get the mistake rectified by alleging CUE. However, the rules for CUE are strict and it must be "undebateable". So, you cant meet the "Cue" standard of review and you lose.

Yours is an example where the Veteran could benefit from finality. And the answer is yes. I think there are, indeed, Veterans who are getting benefits due to VA errors. And, the VA wont even be able to correct those errors after 20 years unless they can show fraud on your part.

The regs are designed to "stabilize" ratings. VA benefits are not supposed to be a ping pong game. A disabled Veteran does not need his income going up and down up and down every month while the VA tries to figure out how to rate you.

[lotzaspotz]

Thank you all, I appreciate your input!

[john999]

That one word "undebateable " will knock about 98% of CUE claims. The error in a CUE must be undebateable. Almost any legal error is debateable. That is why we have courts of law. Only the VA has such a concept as "an error must be undebateable". I have said it before, but you can have five board certified M.D.'s on one side of a debate, and one medical clerk on the other side, and if the medical clerk is on the VA side your CUE will fail. The debate may be on your ability to work, and if the clerk said you could and the five doctors say you can't then in a CUE you lose. This is a chimera and a sham.

John