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Question

How long do you need to be getting 100 percent T+P before your locked in at that rating?

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From Hill and Ponton

Protected Ratings – When the VA Can’t Reduce Your Rating

April 21, 2016 | in Veterans | by Anne Linscott, Attorney

If there is evidence that a veteran’s service-connected condition has improved, the VA might notify the veteran that they are going to reduce the rating currently assigned. However, there are certain instances where a veteran’s rating is protected and cannot be reduced by the VA. Today, we will look at when the VA is not allowed to reduce a certain rating.

The 20 Year Rule

If a service-connected disability has been continuously rated at or above a certain rating percentage for 20 years or more, the VA is prohibited from reducing the rating below that level. The only exception for this rule is if the VA discovers that the rating was based on fraud. For example, a veteran has been rated at 50% for PTSD for over 20 years. He then files a claim for an increased rating for his PTSD. The VA schedules the veteran for a C&P examination to evaluate the current severity of his PTSD symptoms. The C&P examiner ends up finding that the veteran’s PTSD symptoms actually meet the criteria for a 30% rating. Regardless of the C&P examiner’s findings, the veteran’s PTSD rating cannot be reduced under 50% because it is protected.

Sometimes a veteran might have just recently received an increased rating for a service-connected condition that they had previously been rated at a lower level for at least 20 years. When this is the case, the veteran’s CURRENT rating can be reduced, but it cannot be reduced below the rating that had been in effect previously. The current rating is not protected, but the lower rating is. For example, a veteran was rated at 20% for his back condition from 1990 to 2010. In 2010, the veteran received an increased rating of 30% for his back condition. The 30% rating can potentially be reduced if the VA finds evidence that the condition improved, but they cannot reduce the veteran’s rating below 20% because the 20% rating is protected.

The 20 Year Rule – Retroactive Awards

Once a veteran receives service connection for a condition, the VA has to assign a rating and an effective date. If the veteran ultimately receives a rating that goes back for 20 years or more, that rating is protected even though the rating decision was just issued. For example, a veteran has been fighting to get his PTSD service-connected. The BVA finally grants service connection and sends the case back to the RO to assign a rating and effective date. The RO assigns a 30% rating with an effective date of at least 20 years ago. The veteran’s 30% rating is protected.

The same concept applies if a veteran receives a retroactive increased rating. Let’s say the same veteran who received the 30% PTSD rating after the BVA granted service connection, appeals the rating because he feels it should be higher. If the rating is increased to 70%, and the veteran can show that his condition should have been rated 70% all along, he will then have a protected rating of 70%.

The 20 Year Rule – Combined Ratings

Ratings for individual conditions aren’t the only ratings that can be protected. If a veteran has a combined rating that has been in effect for 20 years or more, that combined rating is protected and can’t be reduced. So even if a combined rating has been improperly assigned by the VA, that combined rating is protected if it has been in effect for at least 20 years.

The 20 Year Rule – Changes in Conditions & Symptoms

What about when a veteran’s condition progresses and begins to manifest in new ways? If a veteran’s condition progresses to a point that the current diagnostic code does not provide an accurate reflection of the veteran’s symptoms, a new diagnostic code will need to be assigned. When this happens, the VA is required to close out the original diagnostic code and assign a new diagnostic code that represents the progression of the condition. The new rating assigned under this new diagnostic code will not have the same effective date as the original rating. So, the new rating is not protected.

Sometimes a veteran’s condition may progress over the years causing the veteran to suffer from completely new symptoms in addition to the symptoms they have had over the prior years. These new symptoms may warrant a rating under a different diagnostic code. Although these symptoms may have been caused by a condition that has a protected rating, the rating assigned under the new diagnostic code will not be protected. This is because the VA considers the new symptoms as a separate and distinct disability that warrants a separate evaluation. The symptoms that have been present since the original rating will have a protected rating, but the new symptoms will not.

Another tricky situation arises when a veteran has 2 conditions that have been incorrectly rated as one disability for more than 20 years. In this case, the VA is allowed to re-rate the conditions as separate disabilities as long as the following requirements are met:

• The combined rating of the separate disabilities equals or is greater than the rating assigned to the prior single disability, and
• The effective date of for the separate disabilities is the same effective date of the prior single disability.

This means that the now separate disabilities both have their own protected rating. Also, the veteran’s combined rating will be protected.