Once the VA determines that your current medical condition is related to your military service, it will assess the severity of your current condition. Using a VA medical exam report and/or a review of your medical records, the VA will consider the severity of your symptoms and the impact of your condition on your ability to work. Once the VA makes this assessment, the adjudicator will issue a “rating” using the VA’s Rating Schedule. This rating corresponds to a monthly compensation amount, which can be found VA’s website.
As long as your condition stays the same, so will the rating.
But what happens if your condition improves?
Legally, the VA is allowed to reduce a rating. However, the VA must follow certain rules when doing so. Below we will discuss the rating reduction process and your rights.
Why Would the VA Reduce a Rating?
Because VA ratings are meant to compensate you for the symptoms you experience as a result of your military service, it follows that when a condition gets worse, the rating goes up and when the condition improves, the rating goes down.
For certain conditions, improvement is likely and the VA takes this into account when issuing the initial rating. For example, for certain types of cancer, remission or surgery are possible and can improve the condition, so the Rating Schedule will account for that. The rating for malignant neoplasms of the gynecological system, for example, includes the following note:
A rating of 100 percent shall continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination.
Therefore, for conditions like this one, it is possible for a rating to be reduced after six months if the condition has improved.
For ratings that are not likely to change or that don’t account for the possibility of change, a rating reduction may still occur if the VA finds that the original rating was an error, the record includes evidence of fraud, or a condition has “materially improved.” A determination of “material improvement” must be based on your entire medical history and ability to function under the ordinary conditions and stressors of life and work.
What Does the VA Have to do Before Reducing a Rating?
Before the VA can reduce your rating, the VA must provide (1) notice of the proposed reduction, and (2) 60 days for you to respond.
First, the VA must send you and your representative Notice of the Proposed Reduction. Every notice must include the following elements:
- a statement of the proposed decision, including proposed rates of payment for all affected periods of entitlement, including past periods for which an overpayment may or may not be created;
- the proposed effective date of the decision;
- information on the possible creation of an overpayment;
- detailed reasons for the proposed decision; and
- information on your right to:
- present evidence,
- request a personal hearing, and
- have representation.
The VA must then provide 60 days for you to submit evidence refuting the VA’s proposed reduction.
If the VA follows these procedures and still finds the reduction proper, the VA will issue a Final Decision Notice, which will outline the following:
- the decision (including new rates),
- the effective date(s),
- the detailed reasons for the decision,
- overpayment information, and
- appeal rights.
If the VA fails to provide any of this information and/or the required 60-day period, then the VA cannot move forward with the reduction.
There is one exception to these procedures: if you received a temporary grant or increased payment for a condition following an event, such as a joint replacement or heart attack, for which the rating schedule provides a temporary evaluation for a specified period of time. In those cases, the VA’s original award letter will specify the date or condition when a reduction will be triggered. In that case, the VA’s notice will have been provided in the original award letter so the VA will not send a separate Notice of the Proposed Reduction.
How to Avoid a Rating Reduction
If you receive a Notice of the Proposed Reduction, you have at least 60 days to respond. This Notice is not a final decision, so it cannot be appealed, but you should respond. In your response, you may submit new evidence (within 60 days) or request a hearing (within 30 days). Your payments will continue at the current rate if you request a hearing within 30 days of the date the Notice of the Proposed Reduction is sent.
If you want to avoid a rating reduction, your evidence and testimony will need to establish that your condition has not materially improved. You can outline your symptoms, and how they have stayed the same or worsened. You can submit statements from family, friends, or coworkers who have observed your ability to function in daily life and/or at work. You can also submit medical evidence showing that your condition has not materially improved.
If, after 60 days or the review of your submitted evidence, VA sends a final decision that reduces your rating, you can appeal.
Which Ratings are Protected?
Some VA ratings cannot be easily reduced due to the length of time the rating has been in place or the nature of the condition. These rating protections help ensure stability for certain veterans.
For example, a disability rating at any level that has been continuously in effect for 20 years or more cannot be reduced to a lower evaluation except when there is evidence of fraud. This is called the 20-Year Rule.
Similarly, the 10-Year Rule provides that if a condition is service-connected or a cause of death has been in effect for 10 or more years, the VA can only propose severance if there is evidence of fraud or the veteran did not have the requisite service or character of discharge.
After 5 or more years, the VA cannot reduce a rating without showing sustained improvement in the condition. In other words, the VA must follow the general rating reduction rules but also must show that any improvement in your condition is sustained. This means that one examination or one record is typically not enough to show sustained improvement, and the VA will have to establish a pattern of improvement and an explanation of why they are reasonably certain your condition will continue to show sustained improvement. This is called the 5-Year Rule.
If your VA benefits fall into these protection classifications, the VA should not move forward with a rating reduction without addressing these protections.
Contact Vets National Advocates
If you have been issued a rating reduction improperly, it is important to contact your representative now.
You fought for our country, now let us fight for you. Vets National Advocates is here to help you appeal an unfavorable decision from the VA. Contact Vets National today for assistance with your appeal, at 877-777-4021.
