You open the big white envelope you just received from the Department of Veterans Affairs, nervously anticipating what actions the VA has so wisely decided to take concerning your VA service-connected disability benefits. “They are reducing me!” you shout. “But my condition has become worse, not better!” Your frustration with the bureaucratic monster sets in, followed by a wave of fear and worry. Your monthly income is going to be cut in half. You think to yourself, “How can the VA do this!?! How am I going to pay my bills and support my family?”
You are not alone in your frustration. The VA can and does frequently take action to reduce a rating. However, many times a rating is reduced without proper due process or observation of law. Compounding the problem are VA examiner performing inadequate exams and undertrained VA adjudicators. I am going to give you seven actions you can take to if the VA proposes to reduce your rating.
- 1. Attend your re-examination!
The VA may require a veteran who receives service-disabled compensation benefits to be reexamined by a VA physician to verify the current severity of your disability. Generally, reexaminations are ordered if evidence indicates a change in the disability or the VA thinks the disability is likely to improve. The examination will generally be scheduled five years from the date of the rating decision. There are five situations in which no reexamination should be scheduled:
- The disability is unchanging;
- Symptoms have persisted without “material improvement” for five or more years;
- You are over 55 years old;
- Your rating is the minimum rating; or
- Your combined rating will not be affected
*TIP* If the VA schedules a veteran for an examination and the disability falls within one of the categories listed above, the Veteran may wish to contact the VA and request that it reconsider its decision to schedule the exam.
A Veteran who fails to report for a reexamination without good cause or without attempting to reschedule the examination may have his disability payments reduced or discontinued. Good cause includes the VA sending notification of the reexamination to the wrong address; illness or hospitalization of the Veteran; or death of an immediate family member. If you have a reasonable excuse for failure to report for a scheduled reexamination, the Veteran should notify the VA of this fact as soon as possible.
At the exam, it is important that you make the examiner aware of all the symptoms of the service-connected disability that is being reevaluated. Do not downplay or minimize your symptoms. It is also important to fully describe to the examiner the effects of your disability upon your ordinary activity. For example, say the Veteran’s back condition is being reexamined. The Veteran’s back may not be painful at the moment the exam is being conducted, but he experiences painful motion and flare-ups in his back while at work. It is important to make this information known to the examiner.
Shy Veterans or those who minimize their symptoms may wish to bring a spouse or another loved one into the exam so that they can provide additional details on the Veteran’s observable symptoms to the examiner.
- Request a hearing.
An important protection in cases where the VA proposes a reduction of service-connected disability benefits is the Veteran’s right to a predetermination hearing. The hearing must be requested within 30 days from the date of the notice of the proposed reduction. If the Veteran requests a hearing within 30 days, the proposed reduction will not be implemented, if at all, until the hearing takes place.
A benefit of asking for a hearing within the 30 day period is that the reduction of benefits is delayed. The reduction will not be implemented until at least 60 days after the final decision to reduce is sent to the Veteran. This buys the Veteran at least two months of benefits at the current percentage and gives additional time to gather evidence. Further, the hearing provides another opportunity for the Veteran to describe his condition and symptoms to the VA adjudicator.
- Obtain a copy of your reexamination report.
You can’t contest a proposed reduction if you don’t know the content of the medical opinion upon which the reduction is based. It is easy to obtain a copy of the report so that you can verify the physician accurately recorded the symptoms of your service-connected condition. Complete this form: https://www.va.gov/vaforms/medical/pdf/vha-10-5345a-fill.pdf and send or bring it to the VA medical facility which perfomed your reexamination.
Once you receive the examination, review it and search for any inaccuracies reported by the examiner. For example, perhaps the VA examiner reports that you have panic attacks only once a week, but you told the examiner you experience panic attacks at least three times a week. You can report this discrepancy to the VA using VA Form 21-4138 or mention it to the VA adjudicator at your scheduled hearing. An exam based on inaccurate facts should be considered of little value and the Veteran should request a new exam is given.
- Acquire your treatment records.
The VA must base any proposed reduction upon a review of the entire history of the Veteran’s disability and not on the single reexamination. If you receive treatment for the service connected condition that the VA is proposing to reduce, it is important that the VA has copies of these records. Treatment records are important so the VA has an accurate picture of the disability. If you receive treatment from a VA facility, you can obtain a copy of your treatment records using the form mentioned in point “3” above. If you are privately treated, ask your private physician how you can obtain a copy of your treatment records and progress notes. It is recommended that you request the last two years of records.
*TIP* You should only submit treatment records that are relevant to the service connected condition that the VA is proposing to reduce. If you overwhelm the VA with hundreds of pages of records, there is a good chance they will be overlooked or not thoroughly reviewed by the VA.
- Ask for Buddy statements.
Ask your friends, family, and co-workers to write letters on your behalf about symptoms they can observe of the service connected disability. Laypersons cannot diagnose conditions, but they are able to testify as to the symptoms readily observable. For example, a friend can write that a Veteran with PTSD once socialized on a regular basis, but that he rarely sees him now because he won’t leave the house. Another example is a spouse writing on behalf of a Veteran with service connected knee injury who can only walk a few blocks before he has to stop due to pain.
- Know the legal standards.
Many VA adjudicators are overworked, undertrained, and don’t understand the nuances of VA law. One of the most powerful things you can do for yourself, is educate yourself on the requirements the VA must meet before it may lawfully reduce a disability rating level. If the requirements are not met, the improperly reduced benefits must be reinstated. The rules that protect veterans against reductions in ratings vary depending on how long the rating level has been in effect.
Five years or more. Any rating evaluation that has been continued at the same level for five years or more, may not be reduced unless all the evidence of record shows “sustained improvement” in the disability. Sustained improvement means the disability has not temporarily improved and the improvement will be maintained under the ordinary conditions of life, such as at work.
Less than five years. The VA must determine if there has been an actual change in the disability. Further, any improvement must reflect an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Lastly, the examination reports reflecting any change must be based on thorough examinations. For example, an exam is not thorough if it does not discuss the symptoms found in the treatment records.
Twenty years. If a disability has been continuously rated at a particular rating level for twenty years or more, the VA cannot reduce the rating below that level unless it discovers that the rating was based on fraud. For example, if a Veteran is granted 30 percent for PTSD and for the next twenty years the rating varies between 30 percent and 100 percent, the rating cannot be reduced below 30 percent in the absence of fraud. The twenty year protection rule applies even to rating levels that are assigned retroactively because a previous final decision is revised based on a finding of clear and unmistakable error.
- Appeal if necessary.
If you do steps 1-6, but the VA still reduces your service connected disability rating, don’t fret! Even if the VA reduces your rating, you can still appeal that decision. If you want to contest the reduction, you have one year from the date of the final determination to file VA Form 21-0958, Notice of Disagreement. It is advisable to speak with a VA accredited attorney or representative before submitting your appeal. If it is found that the ratings were made without observance of law, the rating will be reinstated and the Veteran will be back paid to the date of the erroneous reduction.
Edward M. Farmer is a U.S. Army veteran and attorney. A majority of his career has been dedicated to assisting veterans. More information regarding Edward and his law firm can be found at www.vetlawoffice.com
The material and information contained on these pages and on any pages linked from these pages are intended to provide general information only and not legal advice. You should consult with an attorney licensed to practice in your jurisdiction before relying upon any of the information presented here.