VA Disability Rating Reductions: A Guide to Understanding Your Rights
The VA may lawfully reduce a veteran’s VA disability rating only in specific situations and after complying with various procedural requirements. In each of the situations described below, the VA has to establish by a preponderance of the evidence that a rating reduction is warranted.
While some rules apply regardless of the rating percentage assigned or how long that rating has been in place, veterans that are totally disabled or have had VA disability ratings in place for longer periods of time are afforded additional protections. That’s why it is important to understand which rules apply to a particular veteran’s circumstances.
The Rules That Apply to All VA Disability Rating Reductions
Regardless of how long a VA disability rating has been in place, there are four rules that the VA must comply with.
Any proposed reduction must be based upon a review of the entire history of the veteran’s disability
The VA must determine whether there has been an actual improvement in the disability
Any improvement must actually improve a veteran’s ability to function under the ordinary conditions of daily life and work
Medical opinions or reports relied upon to reduce a rating must be based on thorough examinations
The Rules that the VA Must Follow Prior to Reducing a Service-Connected Disability Rating in Place for More Than Five Years
If a VA disability rating has been in effect at a given percentage for at least five years, a rating reduction is legal only if all the evidence in a veteran’s VA disability claims file collectively shows sustained improvement more closely approximating a lesser rating percentage. This means that the VA cannot legally reduce a rating based on a single examination without considering any improvement in light of a veteran’s entire VA disability claims file.
The VA is also required to ensure that any recent examination relied on to reduce a VA disability rating was thorough. It is illegal for the VA to reduce any VA disability rating based on an examination less thorough than than the examination relied upon to grant it.
Finally, disabilities that are reasonably expected to cyclically improve and worsen cannot be reduced based on any single examination unless the veteran’s entire VA disability claims file clearly demonstrates sustained improvement.
Greater Protections Apply for Service-Connected Disabilities in Place for More Than Twenty Years
If a veteran’s service-connected disability has been rated at a given percentage (or higher) for at least twenty years, the VA can only reduce that rating if it was fraudulently obtained. This is true even where a veteran’s condition improves to a non-compensable level after twenty or more years.
The Rule for Reducing a Totally Disabled Veteran’s Rating
Veterans who obtain a total disability (100 percent) rating are also afforded additional protections. Barring Clear and Unmistakable Error in a prior total disability rating assignment, the VA must determine that there has been a material improvement and confirm it by examination prior to reduction. Minor improvements or those that do not improve a veteran’s ability to work or function under the ordinary conditions of life do not qualify as material improvements.
Additionally, even if the VA determines that reduction of a totally disabled (100 percent rating under the schedular criteria) veteran’s rating is appropriate, the VA must consider whether that veteran is entitled to Individual Unemployability (IU) benefits if there is evidence of unemployability.
Should a veteran obtain a 100 percent TDIU rating instead of a 100 percent rating under the schedular criteria, the VA cannot reduce it without clear and convincing evidence that the veteran is actually capable of employment.
The Remedy for an Illegal Rating Reduction
The VA commits Clear and Unmistakable Error (CUE) if it reduces a veteran’s rating without following the law. Veterans who establish that a rating reduction was CUE are able to get the prior rating reinstated, often with retroactive pay going back to the date of the illegal rating reduction.