5 year Rating Protections

[broncovet]

Most Vets know well the 20 year protections, and even the 10 year protections for service connection.  But, some of you may not know about your "5 year Protections", that also apply to P and T.   I will include the entire regulation, then list the 5 year protections "in list form"

Quote

3.344 Stabilization of disability evaluations.

(a)Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. 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. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b)Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c)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.

1.  Exam (to reduce) must be COMPLETE (including that the doc read your history).  

2.  Ratings subject of ""temporary or episodic" improvement will not be a basis for reduction.  NOTICE THE "EG" which means, "for example".  It does NOT mean you have to have one of those listed, they are used as examples and are not intended to be the complete list.  You can have something wrong with you from stuff that is NOT on the list, which could also be subject to "temporary" or "episodic" improvement.  Just because you feel better today, does not mean your disability went away.  

3.  The VA has to show "material improvement" under "ordinary conditions of life".   

4.   Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction.;  Dont overlook this one.  "or continued" means if you get a rating decison "continuing" your rating, then VA has to show "actual improvement" from the time they continued your rating, in a rating decision.  That means even if you got better, but there is not evidence you got better SINCE YOUR LAST DECISON, then someone in Va has already decided to continue your rating and res judicata prohibits VA from going back and revisiting that decision absent CLEAR Unmistakable Error.  

[Buck52]

 I realize you mean good broncovet

but what if a veteran gets a C&P from a VA Doc? and they state that your disability has improved....it will cause the veteran all kinds of problems  and  would have to get an IMO/IME to rebute the VA Doc  and a lot of vets don't have the $$ for this   I know I sure don't.

It's a crying shame if the VA does this to veterans that's been on the same disability for 5 or 10 years concurrent...no matter what his rating is.

 

some say if a VA Dr DON'T LIKE YOU THEN HE WILL START WATCHING YOU WHEN YOU COME TO THE VAMC and write up a bad report on the veteran

JUST ALL VA BS in my opinion

Why can't they just leave us veterans alone when it was them that decided we are approved our benefit's and give us a rating & FOR THEM TO HAVE THE POWER to take away a veterans disability payments is just plain and simple  WRONG.

[Gastone]

Remember 55, it's not just a Speed Limit, VA Rating Dept is precluded from requesting SC C & P Re-exams unless you claim a Secondary or file for an SC increase.

Vets under 55 can and should be prepared for a "Diary Dated" SC Re-exam in 3 to 5 yrs from the Award Date unless they get a T & P No Future Exams Award. The Digitization of all C-File will make it easier for the Rating Dept to track and Schedule Re-exams to beat the 55 cut.

Semper Fi

[broncovet]

Buck, I didn't "mean well", but instead copied the regulation word for word.  It says you not only have to have "material improvement" but it has to be under ordinary conditions of life.  Very little of this post was "my opinion", but rather mostly direct quotes from the regulations.  Yes, a thousand times, yes, VA gets away with violating the regulations, but when they do, you get your rating back...and the applicable back pay.  Way, way too many Vets need "something" to worry about, and a reduction...unless you meet the criteria above, should not be one of them.  The VA loves it when Vets, fail to apply for an increase as they are worried they will be decreased instead.  

The regulation does NOT contain the phrase:

WHENEVER THE VETERAN APPLIES FOR AN INCREASE, REDUCE HIM INSTEAD.  The VA can not reduce you UNLESS you meet the above criteria.  They also have to do a proposed reduction, 60 days in advance, and give you an opportunity for a hearing as to why your rating should not be decreased.

I JUST WENT THROUGH a proposed reduction.  It was a breeze, and I pointed out that I did not meet the above criteria.  I got a VARO decision which stated my current rating will remain in effect.  

Crazily, the VA proposed to reduce my comp because of dependents.  I have been married to the same woman for 10 years.   I had her sign an affadavit that we were still married.  Its crazy.  How do you prove a "universal negative"?  How can I "prove" that I did not get a divorce in all 50 states or countries of the world?  Its a logic error to try to prove a universal negative.  Its like:

"Ok, I have checked my bedroom, my bathrooms, and every where in the house.  Therefore, since my keys are not there, they are no where in this world."  

You can not prove a universal negative.  Somewhere, there are keys.  The fact that I can not find them does not mean they are "gone", it means I have not looked in the right place yet.  Sure, they could have been thrown in the trash and even melted down. (unlikely).  But they are somewhere.  Its impossible for me to prove my keys do not exist.  

Edited May 30, 2017 by broncovet

[Judy]

Wow Broncovet, I really appreciate this post and especially since you are quoting regs as written.

Was this reg revised and if so, I wonder what year? 

I am in a head to head battle here over a 1970 decreased rating (100% to 30%) of my deceased vet husband (DOD 1990) and very old, convoluted case to say the least. I fought a denied DIC from DOD 1990 for five years and gave up. Reopened DIC claim 2007, hired Dr. Bash and after another RO denial, went to BVA and finally won in 2009 (only 2 years retro of course). 

My current battle (one of two claims) is a CUE case (from 1970 as mentioned here) and I had a BVA hearing May 2016, was remanded due to "BVA lack of jurisdiction"...back to RO to issue "final SOC"..they did. Denied. Now yesterday (June 6, 2017) back to BVA for a SECOND time (on the same issue). The 2016 original Judge was not brought in but a judge new to my case was used instead. This judge Didn't even want me to enter my statement, said, " if it contains only those facts that you stated in the previous (2016) BVA hearing then I don't want to hear that again; it is in the record and I can see it. So are you telling me that you have "new and material" evidence in today's statement?" I replied to this  judge that last month (MAY 2017) I had received a CD of the RBA and it consisted of 942 pages. I have spent a great deal of time and a lot of hard work going through it and it is possible that I have found evidence\facts  which have not been entered into the record by me. I also found errors."

Judge asked," what kind of errors" and I told her that I received a transcript of the 2016 hearing in the mail and some things that were said in that hearing were not mentioned and also there were MANY places where the transcript said "....inaudible"..... I also pointed out that the copy of the (SAME) transcript contained IN the RBA was different than the one I was mailed, and in fact they did not match.

Okay, didn't mean to write a book here, sorry. 

I'm wondering if this reg you posted was in effect back in 1970 as it would aid my CUE claim.

Thanks for all that you do for the veteran's needing assistance.

PS. I have had no luck with ANY SO organization that I have used over the years (and there are several) so I have represented myself since 2007 (in the DIC) and continue to do so in this CUE claim although I do have Dr. Bash on board. 

If this isn't won after this second BVA hearing, I shall go to CAVC and will need an attorney.

I already have another claim "open" on a "EED" for my original DIC case (won) and have received a ton of snail mail from as many attorneys on that one. I just received 60 day notice to file a "brief" on that one as it is now at CAVC. 

Thanks again,

Judy

[broncovet]

Judy:  I dont have an answer as far as the date goes.  Was your husband reduced in 1970?  But you may find some tidbits on rating reductions, here:

http://www.purpleheart.org/serviceprogram/Training2013/16-T-Rating Reductions-Ron.pdf   They are consistent with my post.  As this points out, the burden of proof lies upon VA to reduce.  Did they give sixty day notice of the proposed reduction?  

Frankly, however, all this said, you would be well advised to seek attorney representation.  It may not cost you all that much and may cost nothing.  Reason:  EAJA fees are often awarded and the attorney can only collect from you, not from you and EAJA, up to the fee agreement amount (often 20 percent_).  

I have personally hired a lawyer for my own case.  She has won EAJA fees already.  This means the first 6000 of my attorney fees are paid by EAJA.  So, unless my retro is more than 30,000 I will pay zero attorney fees.  If the retro is more than 30,000 then I pay 20 percent of anything over 30,000.  I will be delighted to pay attorney fees in this instance, I hope I pay enough fees for the lawyer to buy a yacht.  I will get more than 5 times more than the lawyer, in all cases.  (If I win).  

Do you have a Veterans Benefit Manual?  Its the one published by NVLSP, not the "Dick and Jane" one published by VA.  The VBM is supported by hundreds of case law, and written by lawyers.  Its often used as a training for lawyers.  The VBM is about over 100 dollars.  Its available on DVD or print.  Its excellent and you should not represent yourself without one, or at least access to it.  

I have 2 VBM's, but mine are at least 2 years out of date.  

Edited June 7, 2017 by broncovet