Veterans frequently contact The Veterans Law Group (VLG) in cases where the VA proposes a reduction of their disability ratings. It is important to be aware that VA law provides for protection against rating reductions, although the amount of protection can depend upon various factors, including the length of time of the disability rating, the age of the Veteran, and the level of the disability rating.
In this article we will go over the different protected VA disability ratings
All Disability Ratings Are Entitled to Some Protection
Many Veterans and their representatives overlook a very basic rating principle: All non-temporary (non-convalescent) disability ratings are entitled to a minimum level of protection. Namely, they may not be reduced unless the medical evidence shows improvement in the severity of the disability since the last rating decision. And this showing of improvement must satisfy several requirements. First, the evidence supposedly showing improvement must reflect an actual improvement in the disability level. (Many disabilities have fluctuating symptoms, with good days and bad days. The medical evidence must show a permanent change in the disability level, not a snapshot of one good day.). Second, the purported improvement must be based upon all the medical evidence, including the Veteran’s treatment records, not just the VA examination reports. Third, the VA examinations reflecting such change must be thorough. An inadequate VA examination, such as one lacking a rationale or basis for its opinion, is not a thorough examination. Fourth, the purported improvement must be shown under the ordinary conditions of life and work. In other words, the Veteran’s alleged improvement may not be based upon some artificial or improbably setting. For example, a Veteran’s back disability must be considered in terms of normal activity, e.g., sitting, walking or standing. Improvement cannot be shown if the Veteran is lying on his bed, or resting for prolonged periods, as this would not constitute ordinary conditions of life and work.
Another very important point: The VA often confuses the standard for a rating reduction with the standard for the original disability award. The Veterans Law Group often sees proposed and implemented rating reductions based upon a finding that the severity of the Veteran’s current disability does not warrant his/her current rating. That’s incorrect. Let’s take an example: Veteran files a back claim and the VA examination shows limited forward flexion of forty-five (45) degrees. This finding warrants a twenty (20) percent disability rating under the VA Rating Schedule. However, the VA adjudicator awards a forty (40) percent disability rating. The Veteran undergoes a subsequent VA examination, which again shows limited forward flexion of forty-five (45) degrees. The VA may not properly reduce the Veteran’s rating on the basis that his/her current back disability does not meet the criteria for a forty (40) percent rating. Only medical evidence showing an improvement over the findings of the first examination – limited forward flexion of forty-five (45) degrees – could support a rating reduction.
The Rule for Veterans 55 Years or Older
For disabled Veterans who are fifty-five (55) years or old, the general rule is that the VA will not request periodic VA examinations or otherwise attempt to reduce disability ratings. This rule does not apply to temporary 100% disability ratings, so-called convalescent ratings.
100% Schedular Disability Ratings
One hundred (100) percent schedular disability ratings, whether based upon a single or two or more disabilities, may not be reduced unless VA examinations clearly show material improvement under ordinary conditions of life. Thus, a VA adjudicator must compare the findings of the VA examination supporting the most recent rating decision with the VA examination purportedly showing material improvement. The later examination must show material (substantial) improvement compared to the former examination. Moreover, the Veteran’s relevant treatment records must be considered in this determination.
This protection applies to all 100% disability ratings regardless of the length of time they have been in effect. However, the protection does not apply to temporary/convalescent 100% disability ratings.
Awards of total disability based upon individual unemployability (“TDIU”) may not be reduced unless clear and convincing establishes that the Veteran is actually employable, notwithstanding his/her service-connected disability(ies). This protection applies to all TDIU awards regardless of the time they have been in effect.
There is another layer of protection for TDIU awards. Even if a Veteran with a TDIU award engages in substantial gainful employment (earning above the federal poverty threshold), his or her award may not be reduced unless he/she maintains continuous employment for one year. However, short, temporary breaks in employment will be considered continuous employment.
A permanent disability rating means that the service-connected condition is unlikely to improve during the Veteran’s lifetime. This is a determination based upon the medical evidence. In such cases, the Veteran will not be requested to undergo periodic medical re-evaluations nor will his/her award be subject to a reduction. Examples of permanent disabilities are: paralysis of a body part, serious heart condition, hearing loss, blindness, nerve damage, to name a few.
5, 10, and 20-Year Disability Rule
20-Year Disability Rule
When a specific disability rating for compensation purposes has been in effect for at least twenty (20) years, it is protected and may not be reduced unless there is a showing of fraud. The twenty-year (20) rule applies to ratings which have been given retroactive effect. For example, let’s say the Veteran was initially awarded 40% for a back disability, with an assigned effective date of June 2010. If today is June 2024, this means the award has been in effect for fourteen (14) years. Later, the VA grants the Veteran an earlier effective date of June 2002 for the 40% back disability. Now, the Veteran has a 40% disability rating in effect for twenty-two (22) years. The twenty-year (20) rule now applies to his/her rating.
There is a caveat. The rating must be continuously at the same or higher level for twenty (20) years. Let’s change the facts of the hypothetical above so that the Veteran was initially awarded 40% for a back disability with an effective date of June 2010. However, the VA later grants him/her an earlier effective date of June 2002 but at a 20% disability level. The Veteran would be entitled to the twenty (20) year rule for the 20% disability rating, but he or she would have to wait until June 2030 to obtain protection for the 40% disability rating.
10-Year Disability Rule
Awards in effect for ten (10) years or more may not be terminated unless there is a showing of fraud. However, such disability awards may be reduced upon a showing of improvement in the service-connected condition.
5-year Disability Rule
A disability award in effect for five (5) years or more may not be reduced without a showing of material (substantial) and sustained improvement. By sustained, the VA means improvement which has been continuous for a significant period of time.
Procedural Requirements for All Rating Reductions
When the VA intends to reduce a disability rating it will first issue a proposed rating reduction. The proposed rating reduction will set forth the reasons for the sought reduction and provide notice and an opportunity to submit additional evidence. It is important to remember that a proposed rating is not the official rating reduction. Your disability payments will not be reduced until sixty (60) after the VA issues the implemented/official rating reduction.
More specifically, the proposed rating reduction will give notice that the Veteran may present additional evidence in the next sixty (60) days to defend against the proposed reduction. In addition, the proposed rating reduction will advise the Veteran that, within the next thirty (30) days, he/she has the right to request a pre-determination hearing. This hearing will be conducted as a live audio/visual conference with a VA rating specialist, the Veteran, and his or her representative, if any. Again, any rating reduction will not take effect until after sixty (60) following the VA issues its final rating reduction determination.
One caveat: These procedural requirements do not apply to rating reductions if the Veteran’s overall combined rating remains the same. This is a common occurrence. Let’s say a Veteran has the following service-connected disabilities: 40% for the back, 50% for psychiatric disorder, and 10% for tinnitus. If the VA were to reduce the 10% rating for tinnitus to 0%, the aforementioned procedural rights would not apply. Under the VA’s combined rating table, the Veteran’s overall combined rating would still remain at 70%.
