When the Veterans Administration (VA) proposes to reduce a veteran’s disability rating, it creates one of the most stressful times in a veteran’s life.
By Matthew J. Brown, Esq. VA-accredited attorney and partner at Wolf & Brown Law Offices
Routinely, our office encounters a situation where the veteran believed in good faith their service-connected disability worsened in severity and requested an increase in evaluation.
However, sometimes this request results in a determination that the veteran’s disability has decreased in severity – thus, resulting in a proposal to reduce a veteran’s disability rating. This inclusion to Vet-Wire will explain what occurs when VA proposes a reduction action and the various rules that protect veterans against proposed reductions.
Generally, a reduction in a veteran’s disability rating is permitted only where certain circumstances exist and where particular legal guidelines have been satisfied.
In proposing a reduction action, VA must comply with a variety of legal requirements and ultimately bears the burden of proof in establishing, by a preponderance of the evidence, that a reduction is warranted under the applicable regulations.
In some instances, the veteran’s rating is “protected.” In these situations, VA is prohibited by either statute or regulation from reducing the rating.
In one such instance, if a veteran’s rating has been in effect for five or more years, then that rating is considered stabilized. This means that VA may not reduce the rating unless all the evidence of record shows sustained improvement in the disability.
For example, if Jane is service-connected for a right knee patellofemoral pain syndrome and her evaluation is 20 percent, effective January 1, 2020 – if Jane 20 percent rating is in effect for five or more years, meaning the rating stays at 20 percent until January 1, 2025, then VA may only reduce the rating if medical evidence shows sustained improvement in the disability. If VA cannot bear the burden of proof, then VA may not reduce the rating.
In another form of protection, if a service-connected disability has been continuously rated at or above a particular level for twenty to more years, the VA cannot reduced the rating below that level unless they find the rating was based on fraud. This 20-year protection includes ratings levels that are assigned retroactively because a previous final decision is revised based on a finding of clear and unmistakable error (CUE).
If you need assistance with appealing issues in your Rating Decision, reach out to our team at Wolf & Brown Law Offices to schedule a free consultation so we may evaluate your case.
Relevant pages: NJ Vet-Wire; Veterans Disability