5, 10, 20 Rule VA Disability Rating Protection

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The 5, 10, 20-year rules...

 

Five-Year Rule 

 

38CFR3.344(c) Stabilization of disability evaluations

 

The five-year rule states that the VA can’t reduce a veteran’s disability that’s been in place for five years unless the condition improves over time on a sustained basis. The veteran will likely need to present medical evidence to prove the material improvement of their condition. Hill and Ponton

The VA Disability Five-Year Rule: What Veterans Need to Know

The VA Disability Five-Year Rule, which requires the VA to re-evaluate veterans with certain types of disabilities periodically, can have several effects on veterans.

One potential effect of the Five-Year Rule is that a veteran’s disability rating may be adjusted based on the re-evaluation results.

If the VA determines that a veteran’s condition has improved, their disability rating may be reduced, which could decrease their compensation.

On the other hand, if the VA determines that a veteran’s condition has worsened, their disability rating may be increased, which could increase their compensation. Hill and Ponton

 

For clarity on the 5-year rule: This says the VBA must have proof of sustained improvement. An example might be when a Veteran has a mental health condition yet does not go to a psychologist/psychiatrist. Or if the veteran has never had his service-connected back status noted in the current medical records. Those situations would suggest a sustained improvement because the Veteran did not seek treatment or therapy or at a minimum get a current status noted in the medical records.

 

Ten-Year Rule

38CFR3.957 Service connection Ten-Year Rule.

Service connection for any disability or death granted or continued under title 38 U.S.C., which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The 10 years will be computed from the effective date of the Department of Veterans Affairs finding of service connection to the effective date of the rating decision severing service connection, after compliance with § 3.105(d). The protection afforded in this section extends to claims for dependency and indemnity compensation or death compensation.

 

Twenty-Year Rule

38CFR3.951 Preservation of disability ratings Twenty-Year Rule.

(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 improved. 

(Authority: 38 U.S.C. 1155)

(b) A disability that 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 that 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 years will be computed from the effective date of the evaluation to the effective date of reduction of evaluation. 

Protection when veteran reaches 55:

38 CFR 3.327(b)(2)(iv) Reexaminations (iv) In cases of veterans over 55 years of age, except under unusual circumstances

VA M-21 IV.ii.1.A.1.e.   As is discussed in M21-1, Part IV, Subpart ii, 1.A.1.d, and with only rare exceptions, Veterans over the age of 55 must not be routinely recalled for reexamination. Whether a case is found to involve the “unusual circumstances” described above and in 38 CFR 3.327(b)(2)(iv) is an individual, fact-specific determination left to the discretion of the rating activity.

Reference:

For more information on protection resulting from retroactive increases, see VAOPGCPREC 68-1991.

Quote

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]

 

NOTE: The service connection can be removed until a percentage is in place for 10 years. After that, the service connection is protected.

 

For example, 2020 using the same disability rating

 

1998 - Initially Service Connected @ 10%

RESULT: Service Connection Protected in 2008

RESULT: 10% Protected from reduction in 2018 (20 years)

2020 - Service Connection Increased @ 30%

RESULT: 30% is Protected from reduction in 2040 (20 years)

2022 - Service Connection Increased @ 50%

RESULT: 50% is Protected from reduction in 2042 (20 years)

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The second example for 2020:

 

Example of protected percentages:

• A Veteran gets awarded @ 30% in 1991.

• The Veteran files for an increase and is awarded 70% in 2004.

• The Veteran files for and is awarded TDIU status in 2005.

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RESULT: In 2001 (10 years), the condition's service connection is protected.

RESULT: In 2011 (20 years), the 30% is protected from reduction (except for fraud).

RESULT: In 2024 (20 years), the 70% is protected from reduction.

RESULT: In 2025 (20 years), the TDIU will no longer be monitored yearly for income and is protected from reduction. In addition, the Veteran is automatically P&T.

Further Reading:

• 38 CFR § 3.344 - Stabilization of disability evaluations
• Rating Reductions and Severance Of Service Connection - 2019 - NVLSP

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