Veterans Disability Compensation: Can the VA reduce a Veteran’s benefits for service-connected injuries, diseases or disabilities?By Chris Attig | Permalink
March 17th in VA Benefits.
Veterans often go through years of administrative paperwork, fighting, and waiting before being approved for disability compensation benefits for the military service-connected injury. Often veterans feel that when they finally get the rating that they are happy with, that is the end of the process. However, the VA can and does reduce ratings previously assigned to Veterans. There are so many ways that the VA can attempt to reduce a rating that no one post can cover them all. This post attempts to explain, very generally, the law relating to reduction of VA disability compensation ratings.
The VA may reduce Veteran Disability Compensation due to incarceration. Any veteran incarcerated in a federal, state or other local prison or jail for more than sixty (60) days won’t get their compensation beginning on the 61st day. If the veteran had a service connected disability that was rated at 20% or higher, the VA is not required to pay an amount an higher than that listed in the law – currently 10%.
That is as straightforward as the law governing Veteran Disability Compensation reductions will get. To understand more, you will need to understand the difference between a “protected” and an “unprotected” rating.
“Unprotected ratings” are Veteran Disability Compensation ratings that are less than 100% ratings, or that have been in effect for less than 5 years. Special rules apply to the reduction of an unprotected rating. The VA must provide notice of its intent to reduce the benefit to the Veteran, schedule a pre-reduction exam, pre-reduction hearing, and give the Veteran an opportunity to submit evidence and argument against the proposed reduction. When the VA decides to reduce a benefit, any reduction that it proposes has to be based on a review of the entire history of the veteran’s disability. There has to be an actual change in the veteran’s disability – not just a temporary retreat of symptoms. The improvement in the disability must be reflected in the veteran’s ability to function under the ordinary conditions of life and work. Finally, the exam on which the proposed reduction is based must be as thorough as the exam on which the initial disability rating was based.
A whole different set of rules and regulations apply to “Protected ratings”. There are at least three (if not more) types of “protected ratings”.
The first type of “protected rating” is a “stabilized rating” – when the disability and rating evaluation has continued for 5 years or more at the same level, it is considered to be stabilized. The Veteran’s Disability Compensation for a stabilized rating may not be reduced unless all of the evidence in the VA records shows that there is “sustained improvement” in the disability.
The second type of “protected rating” is a “100% disability rating”. In order for the VA to properly reduce a total 100% disability rating, it has to schedule an exam, and the exam must find that there has been “material improvement” in the disability AND ”material improvement” under the ordinary conditions of life, while working or actively seeking work. In other words, the VA must review the entire history of the condition, compare the past and current symptomatology, and consider the veteran’s entire work history under the past and current symptomatology before it can conclude that there has been a “material improvement”. One error that the VA commonly makes is to reduce a 100% rating simply because the VA re-exam determines that the Veteran’s current symptoms match a lower rating in the Impairment Tables and Diagnostic Code’s Schedule of Ratings. Most veterans don’t realize this – and assume the VA is correct.
The last type of “protected rating” is a “continuous rating”. If a Veteran’s disability has been rated continuously, for 20 years or more, at or above a particular rating level , the VA cannot reduce the Veteran Disability Compensation rating below that level, unless fraud has been committed.
Usually the first step in the reduction process is that the Veteran will get a letter proposing reduction and/or a letter scheduling a re-examination. DO NOT MISS THE RE-EXAMINATION appointment, or the VA can reduce your Veteran Disability Compensation benefits on those grounds alone.
Generally speaking, re-exams are set by the VA every 2 or more years, so that the VA can insure that its impairment rating reflects the current status of the veteran’s disability. The VA should not schedule a re-examination under the following circumstances:
1) the Veteran’s disability is static;
2) the Veteran’s symptomatology has continued, or persisted, without material improvement for more than 5 years;
3) The disability is permanent, and not likely to improve;
4) The veteran is over 55 years of age;
5) When the rating for a disability is the minimum ratings; or,
6) A reduced Veteran Disability Compensation rating would not affect the total combined rating.
If you get a letter from the VA proposing to reduce your hard-earned Veteran Disability Compensation Benefits, do two things:
1) Do not miss the re-examination
2) Contact a competent and aggressive Veterans’ advocate as soon as you receive the letter – the fight can be won before the VA makes its decision to reduce the benefits; even if the VA ultimately reduces the benefit, the guidance of an aggressive Veterans’ advocate can prove invaluable in preserving the VA’s errors for a BVA hearing or CAVC appeal down the road.
It is very important that we note that each and every Veteran’s claim is different. Just because we were able to secure substantial past-due benefits for one Veteran does not mean or imply that we will be able to do so for you. In some cases, we may not be able to secure you any financial compensation due to the facts of your particular case.
It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case. If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appeals, contact the Attig Law Firm, PLLC, for a free consultation with a VA Benefits attorney.