Our team empowers veterans with service-connected disabilities to refute unjust rating reductions from the VA to maintain the benefits they need.
Summary
- Veterans can challenge unjust rating reductions by the VA through the appeals process, which often starts with filing a Notice of Disagreement.
- The VA may reduce a disability rating if it finds evidence of improvement during reexamination, but reductions must comply with specific legal requirements.
- Ratings stabilized for over five years or 100% disability ratings require strong evidence of sustained or material improvement before reduction.
- A veterans disability lawyer can help gather medical evidence, challenge reduction errors, and navigate the VA appeals process effectively.
- Legal representation can expedite appeals and improve veterans’ chances of reversing unfair rating reductions.
Let’s talk for a moment about the letter no veteran wants to receive: A letter from the VA advising that it will reduce the veteran’s rating. The VA is authorized to conduct periodic reevaluations of a veteran’s disability. If the condition is improved, VA may propose a reduction in the rating.
However, the VA must provide notice to the veteran prior to reducing a rating. If the VA reduced your rating without telling you in advance, that is probably a basis on which to reverse the reduction, and you should seek the legal counsel of a VA-accredited lawyer.
At Werner, Hoffman, Greig & Garcia, our veteran disability benefits lawyers are ready to help you appeal. Call us at (800) 320-HELP or submit this online contact form to schedule a free case evaluation.
Learn How To Beat A VA Rating Reduction
In most cases, the Department of Veteran Affairs will reverse or reduce your disability rating based on the following grounds:
1. Reexamination of an Existing Service-Connected Disability
The VA may order a reexamination of a veteran already receiving benefits. Do not ignore the letter scheduling the examination. If the veteran doesn’t attend the scheduled exam, then the VA can reduce the rating without further action. After the veteran misses the exam, the VA only reschedules if the veteran has “good cause” for failure to report.
An example of “good cause” is the illness or hospitalization of the claimant or death of an immediate family member. Bottom line, attend the exam. If the schedule date/time is not convenient, work with the VA to reschedule the exam. But do not miss the scheduled examination.
2. Stabilization of a Disability Rating
The VA has the authority to adjust a veteran’s disability rating within a certain window of time in most cases. The VA’s powers depend on the amount of time that the veteran has held the rating, the severity of their symptoms, and whether they have a protected status.
After a disability rating has been active less than five years:
When a rating’s been in place for less than five years, it is not considered “stabilized” according to the VA definition of the term. That does not mean, however, VA can reduce the rating in the absence of any evidence the condition has improved.
Regardless of the rating level or the length of time the rating was in effect, there are several general VA regulations which restrict the VA’s ability to reduce a current rating.
- The rating reduction must “be based upon review of the entire history of the veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (U.S. 1993)
- The evidence must reflect an “actual change in the disability.” Id.
- The reports reflecting such change must be “based upon thorough examinations.” Id.
- The improvement must also reflect “an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” Id.
If VA’s reduction relies on evidence which does not meet these requirements, the veteran should file a Notice of Disagreement with the assistance of a qualified veteran disability attorney.
For a disability rating in effect five to twenty years:
When a rating has been in effect for more than five years, it is considered “stabilized.” 38 C.F.R. § 3.344(c). The VA may not reduce the rating unless “all the evidence of record” supports a finding that sustained improvement in the disability has been demonstrated according to 38 C.F.R. § 3.344(a).
Additionally, the VA cannot view the single examination upon which the reduction is based “in isolation from the rest of the record.” Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 CFR § 3.344(a). Your job as the veteran is to show to the VA that “all evidence of record” shows that the service-connected condition has not improved.
Go through your medical records and find each doctor’s comment, lab test, note, or any other indicator that shows the condition has stayed the same or worsened. Outline these bits of evidence in a Notice of Disagreement filed in response to the rating reduction.
38 CFR § 3.344(a) states that “Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction”. The veteran should also argue that the VA examination on which the reduction is based was not as thorough as the prior examination(s).
Point out any inconsistencies in the new exam’s conclusions. Argue that the exam on which the rating was originally based was more thorough than the new exam. Does the older exam contain a summary of the veteran’s medical history? Does the older exam have a more complete review of the veteran’s symptoms? Is the older exam based on tests that were not done in conjunction with the new exam?
When a disability rating has been in effect greater than twenty years:
Ratings in effect for more than twenty years may only be reduced if the VA discovers the rating was based on fraud, according to 38 C.F.R. 3.951(b).
Stipulations for 100% ratings based on the severity of the condition:
Where a veteran is rated at 100% for a single condition (not multiple conditions combined), the 100% rating may be reduced only where an examination shows “material improvement” in the condition according to 38 C.F.R. § 3.343(a).
Whether or not the veteran’s symptoms match those in the rating charts for a 100% rating becomes less relevant. When reducing a 100% rating, the question becomes whether or not the veteran has experienced some “material improvement” in the condition.
Thus, to combat a reduction of a 100% rating in a VA appeal, the veteran should gather his or her medical records. Outline why there has not been an improvement or, if there is some improvement, that the improvement is incremental at best and does not rise to the level of a “material improvement.”
Also, the VA may only reduce a 100% rating if the improvement took place “under the ordinary conditions of life”, to cite 38 C.F.R. § 3.343(a). In other words, the VA must consider whether the improvement was made while the veteran was working or actively seeking work or whether the improvement was brought on by prolonged rest.
If the improvement was brought on during a period when the veteran was not working or actively seeking work, then the VA must reexamine the veteran after a period of employment.
Considerations for veterans receiving Total Disability Individual Unemployability (TDIU) benefits:
According to 38 C.F.R. § 3.343(c), the VA may not remove a veteran’s 100% rating based on unemployability unless “clear and convincing evidence” shows the veteran is capable of “actual employability.”
First, this evidence must be affirmative evidence. This means there must be a vocational report, doctor’s report, or some other document that affirmatively states the veteran is employable. Affirmative evidence is not a lack of evidence which shows the veteran is incapable of work.
The VA must produce this affirmative evidence. If VA removes a TDIU rating based on something other than a professional’s opinion that the veteran is employable, the veteran should dispute the reduction.
Second, “clear and convincing evidence” is a relatively high evidentiary burden. The quality and quantity of the evidence stating the veteran is employable must significantly outweigh the quality and quantity of the evidence stating otherwise.
How a Veteran Disability Benefits Lawyer Can Help With a Rating Reduction
If VA reduced your rating without complying with these rules, the veteran should dispute the reduction by filing a Notice of Disagreement. Even if the reduction occurred many years ago, an unlawful reduction can be overturned if there was clear and unmistakable error in the decision. If VA’s reduced your rating, at any point in time, contact us to discuss your options for combatting the reduction.
A veterans benefits lawyer from WHG can help you successfully challenge the reduction of your VA disability rating. We offer the following:
Expert Evaluation of Your Case
A Werner Hoffman Greig & Garcia veteran disability lawyer can provide a thorough evaluation of your case. They will carefully review your VA file to identify any errors or omissions that may have led to the reduction.
This expertise is crucial as it allows them to pinpoint clear and unmistakable errors in the VA’s decision, laying a strong foundation for your appeal.
Guidance Through the Appeals Process
Navigating the VA appeals process can be overwhelming. A skilled attorney can guide you through each step, from filing a Notice of Disagreement to representing you in hearings before the Board of Veterans’ Appeals.
Their in-depth understanding of VA laws and procedures ensures that your case is presented effectively and efficiently.
Strategic Development of Medical Evidence
One of the key components of challenging a rating reduction is presenting compelling medical evidence.
A veterans benefits lawyer can help you gather and develop this evidence, working with medical professionals to provide clear documentation of your condition and its impact. This strategic approach can significantly strengthen your appeal.
Effective Communication with the VA
Having an attorney communicate and file a VA disability claim appeal on your behalf can be invaluable. They know how to effectively speak the VA’s language, ensuring that your arguments and evidence are clearly understood.
This can often expedite the process and lead to a more favorable outcome. Effective communication is essential in legal proceedings, including those related to the VA claims process.
Comprehensive Legal Representation
Beyond just the appeals process, a Werner Hoffman Greig & Garcia lawyer offers comprehensive legal representation. They can handle all aspects of your case, from paperwork and filings to representing you in court if necessary. This full-service approach means you can focus on your well-being while they focus on fighting for your rights.
Schedule a Free Case Evaluation With WHG Today
By leveraging the expertise and support of a veteran disability lawyer, you can effectively challenge a rating reduction and work toward restoring your rightful benefits. If your VA rating has been unfairly reduced, consider reaching out to a qualified attorney to explore your options and protect your interests.
At Werner, Hoffman, Greig & Garcia, our VA-accredited lawyers are ready to support you during this challenging moment. Contact us by calling (800) 320-HELP or submit our contact form. Then, our team will help you schedule a free consultation meeting to discuss your options for combatting the reduction.
