You’ve received a decision on your VA disability claim, including an assignment of your VA disability ratings – individual as to each type of disability and an overall rating. Is your VA disability rating permanent? Will this seemingly arbitrary number of an overall VA disability rating determine forever what your monthly disability payments will be? Probably not. This article will give you a better understanding of what to expect regarding potential changes to your VA disability rating.
VA disability ratings are percentage numbers from 0% to 100% that are applied to individual disabilities that the VA determines are service-connected for purposes of monthly disability benefit payments. If you have more than one disability, the VA uses a complex mathematical process to combine your individual VA disability ratings into a single overall VA disability rating. That overall disability rating number determines the dollar amount of your monthly benefit payments.
A VA disability rating is not “permanent” unless the VA considers it permanent. Sometimes the VA will actually use the word “permanent” (like a “permanent and total” finding, but other times it will simply apply benefits that are consistent with being permanent. The VA may request a re-evaluation of your condition between the 2-5 year time period after the commencement of your disability to see whether your condition has materially improved.
If you don’t want your initial VA disability rating to be permanent, you are in luck. There are several ways to increase your VA disability rating(s) and thus increase your monthly benefit amounts. You have a year from the initial decision to file an appeal challenging any part of the decision you believe was wrong, including an underrating of one or more of your disabilities. You can also later request a re-evaluation. For example, if your disability seems to be worsening, you can file for an increase.
If you want your initial VA disability rating to be permanent so you can feel comfortable knowing approximately what monthly benefits you will be getting in the future, you’ll just have to be patient. Sometimes the VA will change either your individual or overall VA disability rating during a re-evaluation between the 2nd and 5th year after the initial claim decision. If your condition(s) are relatively the same, your VA disability rating should remain the same but could increase or decrease. After you have been rated at the same percentage for five years, unless your condition is in sustained improvement, the VA can’t reduce the disability benefits, and you won’t have to continue to be re-examined. Sustained improvement is generally shown when you have two exams within a five-year period that show that you have improved. Sometimes this limitation is referred to as the “5-Year Rule.”
As noted above, the VA is allowed to reexamine a veteran’s condition within the first five years after the initial decision, and they are likely to do so if material improvement to your condition is expected over time. Some disabilities have more likelihood of improvement than others. If you lost a limb, that isn’t going to change. If you have anxiety and depression, that might change.
The so-called “5 Year Rule” states that the VA cannot reduce a VA disability rating if it has been in place for at least five years without material change. The exception to this 5 Year Rule is if the veteran’s condition shows sustained improvement from when the initial rating decision was made.
Other rules protect veterans over time from having any re-evaluation or reduction in their disability rating. However, if the initial disability was fraudulent, these rules wouldn’t protect the veteran.
There are a series of milestones within the VA disability process that add more permanence to your VA disability ratings, either due to the passage of time, your age, or the level of your rating.
The 5-Year Rule described above relates to the VA having reduced authority for re-examination or reduction of VA disability ratings after they have been in place for five years.
The 10-Year Rule states that the VA cannot sever or change their service-connection finding for any disability after it has been in place for ten years. They cannot, after that time, decide your disability was caused by something entirely separate from your military service.
The 20-Year Rule is that the VA cannot reduce your individual VA disability rating that has been in place continuously for 20 years.
The 55-Year Rule means that once you, the veteran, have reached the age of 55, your VA disability rating generally would not get set up for a future examination.
Yes. As noted above, the VA has, and often exercises, the right to request a re-evaluation of your condition after two years and before five years after the start date (effective date) of your disability. These re-evaluations aim to see if your condition has significantly improved, so an increased VA disability rating is possible. The amount of change in your condition that would result in a change has to do with the same rating level criteria used initially. If your symptoms have changed in a way that places your condition into a different ratings level, then your VA disability rating can change.
You can also initiate a change in your VA disability rating if you ask for a re-evaluation because your condition has deteriorated. This process usually focuses only on the severity of your condition. It is unlikely to revisit whether your condition was service-connected or you actually have the condition they found to exist. This process looks for material change, one way or the other, in the severity of your condition(s).
A VA disability appeal can be filed as to any aspect of an adverse VA disability claim decision, including underrating. A VA disability rating dispute, via appeal, must be filed within one year of your decision letter.
There are currently three types of decision review (or appeal) depending on what you want to have reviewed and how it should be reviewed: Supplemental Claim, Higher-Level Review, or Board Appeal.
A Supplemental Claim appeal may be best if you have new evidence to add to your initial claim file. A Higher-Level Review appeal may be best if you want a more experienced reviewer to review the file again. A Board Appeal may be chosen if you want a Veterans Law Judge at the Board of Veterans’ Appeals in Washington, D.C., to review the file and have a live hearing. These hearings can be done by videoconference or in person in Washington, DC.
It is highly advisable to have a VA disability attorney involved in your case at this point. With the assistance of an experienced VA disability claim attorney, you can select and file the appropriate paperwork with the VA requesting one of these three types of appeals.
VA claim appeals can sometimes take several years. If you are still dissatisfied with the outcome of an appeal, there are additional options to appeal again until the VA gets it right.
Do you have a VA disability claims decision that you want to appeal? Do you think your claim was underrated? Let Veterans Law Group look at your case and give you a free evaluation of your options.