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Disability Rating Increase Promise Under PACT Act

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pro-se

Question

There has been some recent VA chatter about the PACT Act.  From what I read (as quoted below, from military.com).

"Veterans who already have a partial VA disability rating could have their rating increased now that the VA covers more conditions under the PACT Act, and they don't need to fear that applying could potentially cause their rating to decrease instead, VA officials told Military.com."

Unfortunately, based on my experience with the VA, I'm concerned the VA might just go ahead and decrease my current rating, despite their promises.

Has anyone had an experience with the VA where they have reduced a rating?  Can you please share some details of your experience on that issue.

Thanks 

 

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  • Moderator

Unless you have sustained improvement there isn't any reason to consider reducing a rating. After 5 and 10 yrs the bar is substantially higher to propose that kind of action (google protected ratings). The first 5 yr period after a rating is a 'stabilization period'. If there are no substantial improvements or worsening of the condition at that point it is considered static and not likely to change, so no reason for a routine future exam, either. 

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Yes, I have had VA TRY to reduce my rating twice.    Both were a joke and I easily refuted and defeated their "Proposal to reduce".  

Read the regulations, dont listen to a VA employee or VSO who tells you if you file for an increase, VA will reduce you instead.  Its just plain not true, "when Veteran applies for an increase" reduce him instead is not contained in any regulation.  

Instead, it is actually hard for VA to reduce you.   "Not only" do they have to show you "actually improved" under ordinary condtions of life (this means working, ordinary people work, while disabled people do not), but they also have to show you have had 'SUSTAINTED" IMPROVEMENT.    This applies to P and T, or those over 5 years.  Yep, if you get a temporary rating, its much easier for VA to reduce you.  

Read it for yourself, here, dont take my word for it:

https://www.law.cornell.edu/cfr/text/38/3.344

 

DONT be afraid of applying for an increase because you fear a reduction.  Its a plan cooked up by VA using "fear" to get Veterans to "settle" for less than they deserve.  

Unfortunately, their plan works, but only for the uninformed.  You, sir, however, have been informed (after you carefully read the above regulation), and it should not work for you, and I promise it does not work for me.  

Fear is a motivator, and VA knows that.  If your house is on fire, you probably should not worry about how many bars your phone has.  

Edited by broncovet
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From my experience from 85 to 91 the VA could not reduce my PTSD rating based only upon one C&P revaluation but could and did reduce me from 50 to 30% on a second revaluation exam one year later.  After initial PTSD rating in 85 then the VA scheduled me for revaluation exams every year thereafter.  I believe this is still true today unless you have a static rating of at least 5 years from original initial rating.   Even better if you are at the 10 year mark and better still after 20 years as VA cannot reduce or terminate your rating unless they prove you committed fraud in obtaining the rating.

If your are P&T then not likely your primary disability rating will be reevaluated or reduced at all.

From 85 to 91 I had no or very sorry poor DAV VSO representation then and thereafter I successfully represented myself in many claims and appeals to the BVA and U.S. CAVC court.  All is good now for over 25 years .

My comment is not legal advice as I am not a lawyer, paralegal or VSO.combinedphotoofWOPerkinsinUH-1HdustoffandUpliftDustoff.jpg.3a1cba1b94292e66165bdd46db80653c.jpg

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@pro-se It might be worth it to contact the author of that article and ask them to show you where it says they don't have to worry about a reduction. Ask specifically where it is in the law, regs, or VA policies involving the PACT act.

Of course, that's still one of those things the lawmakers should in future laws. It would remove the anxiety of vets and allow them to be comfortable when filing new or increased claims.

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What the Mod's and others have said hear is spot on regarding re-evaluation of ratting's. There is a lot of miss information that is put out there by some miss informed well meaning VSO. (And some not so well meaning VSO woh doesn't want to do the paperwork.) If you are in the 5, 10, or 20 year range it is unlikely that the VA will screw with it. When you apply for the pack act in most cases you are applying for something that is considered presumptive. Meaning if you have X-cancer it is considered to be service related. (depending on where you served and what you did when you were in.) 

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There is no evidence that "applying for an increase" would instead result in a reduction of benefits.  Instead, the VA must go "by the criteria" for reduction, not reduce every Veteran who applies for an increase.  Veterans who meet the criteria for reduction can be reduced at "any time", whether or not they have applied for additional benefits.  

Generally, paraphrasing the regulation I posted above, the VA cant reduce your rating "unless you have actually improved" under ordinary conditions of life, and this improvement is not "episodic" but is sustained improvement.  Of course, this applies only to permanent ratings.."Temporary" ratings can be reduced without this.  

And, a rating under 5 years can be temporary or it can be permanent, check your decision and see.  Va sometimes does "convalescent" ratings...temp ratings while you get surgery, for example..which can last around a year, while you recover.  

If your rating is temp, then VA can reduce it rather easily, as the criteria in 38 CFR 3.344 a, and 38 CFR 3.344 B, do not apply.   This is explained in 38 CFR 3.344 C, all of which I posted in the link above.  

If in doubt, read the regulations, dont guess.  Ask someone to help if you dont understand the regulation.  Hadit members can often help explain it.  

 

 

Edited by broncovet
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