5 Year Rating Protection

[broncovet]

Some VSO's incorrectly state that a Veteran has no protected ratings until 20 years. This is not true. There are protections at 5 years, 10 years and 20 years.

(Thanks to survivir at another site)

Protections at 5 years

5.10.1 The Requirement of Sustained Improvement to Reduce a Rating Level That Has Been in Effect for Five or More Years

Any rating evaluation that has stabilized, that is, continued for [a] long period[] at the same level (five years or more), 523 whether it is at the 10 percent or 100 percent level, may not be reduced unless all the evidence of record shows sustained improvement in the disability. 524

Because 38 C.F.R. 3.344(a) requires that all the evidence of recordsupport the conclusion that sustained improvement in the disability has occurred, the VA cannot view the single examination upon which the reduction is proposed in isolation from the rest of the record. 525 In other words, the entire medical history of the disability must always be considered in conjunction with any rating examination upon which a reduction is proposed. 526 In Schafrath v. Derwinski, the court explained the purpose of this rule as follows:

These requirements for evaluation of the complete medical history of the claimants condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. These considerations are especially strong in a ratings reduction case. 527

It is precisely because a disability is stabilized that the VA must take care when proposing to reduce the rating evaluation assigned to it. Because uch disabilities are considered stabilized, . . . the regulation thus requires a high degree of accuracy in decisions reducing those ratings. 528

There are several other rules the VA must follow before reducing a rating that has been in effect for five years or more. The VA must review the entire record of examinations and the medical-industrial history . . . to ascertain whether the recent examination [upon which the VA is relying to reduce the rating] is full and complete. 529 Any examination that is less full and complete than that examination on which payments were authorized or continued may not be used as a basis of reduction. 530 If the disability is subject to temporary and episodic improvement, it will not be reduced on any one examination, except in those circumstances in which all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. 531 Even though material improvement in the physical or mental condition is clearly demonstrated, the VA will [consider] whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 532

For more information see CFR 3.344a:

Edited March 21, 2015 by broncovet

[deltaj]

Thank you for posting this broncovet. You are amazing. I wasn't aware of this 5 year protection. I was aware that V.A. used to have a regulation that a veteran's rating couldn't be reduced based on one V.A. exam (38 CFR 3.343 and 38 CFR 3.344). I was also aware that there was a 10 year protection once service connection had been granted and a 20 year protection for percentage of ratings.

[Chuck75]

A VA arguement I've seen used is that the original rating was flawed. Thus CUE'ing themselves.

[Pete53]

I don't think that a Veteran is ever fully protected from VA

[Fat]

Good information.

[Notorious Kelly]

I don't think that a Veteran is ever fully protected from VA

Amen

[broncovet]

Permanent and total is the same as the 5 year protection. For the record, I first "got" this from Ask nod, who pointed out to me there is, indeed a five year protection as well as the classic 10 year and 20 year.

The last sentence in the quote, above, is critical.

In order for VA to reduce a rating in effect for 5 years or more, they have to show sustained improvement "under ordinary conditions of life", that is, while WORKING. If you are not working, then you have not demonstrated sustained improvement "under ordinary conditions of life", since "ordinary" people have to work.