I am currently rated at 50%, and I am appealing a decision as well as putting in a new claim to get to 70%. I didnt know if at any point can the VA drop my rating during a C&P exam, or should I just take my 50% and run. I appologize for the dumb question and any help is greatly appreciated.
Can the VA downgrade my disability rating
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Jason Perry
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Reductions in ratings are governed by various laws and regulations. The standards applied will depend on the specific circumstances of the veteran's case. I will discuss some of the more common issues below.
Rating in effect for 5 or more years (Stablized ratings).
38 C.F.R. § 3.344(a) requires that “all the evidence of record” support the conclusion that sustained improvement in the disability has occurred in order to reduce a rating. The VA cannot view the single examination upon which the reduction is proposed “in isolation from the rest of the record.” Schafrath v. Derwinski, 1 Vet. App. at 594.
This means that the entire medical history of the disability must always be considered together with any rating examination upon which a reduction is proposed.
In Schafrath v. Derwinski, the court explained:
"These requirements for evaluation of the complete medical history of the claimant’s condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. These considerations are especially strong in a ratings reduction case."
There are other rules the VA must follow before reducing a rating that has been in effect for five years or more. The VA must review “the entire record of examinations and the medical-industrial history . . . to ascertain whether the recent examination [upon which the VA is relying to reduce the rating] is full and complete.” Brown, 5 Vet. App. at 419 (citing 38 C.F.R. § 3.344(a)). Any examination that is not as full and complete as the examination that resulted in the grant or continuation of a rating may not be used as a basis of reduction. 38 C.F.R. § 3.344(a) (2007)
If the disability is subject to temporary/episodic improvement, it will not be reduced based on any one examination, except in those circumstances in which all the evidence of record “clearly warrants the conclusion that sustained improvement has been demonstrated.” 38 C.F.R. § 3.344(a) (2007). Even if material improvement in the disability is clearly demonstrated, the VA “will [consider] whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.” 38 C.F.R. § 3.344(a) (2007)
Ratings in effect for 20 years
If a disability has been continuously rated at or above a particular rating level for twenty or more years, the VA cannot reduce the rating below that level unless it discovers that the rating was based on fraud. 38 USC § 110
This also applies to ratings that were awarded retroactively as part of an appeal.
Total (100 Percent) Disability Evaluations
The issue in these cases is not whether the criteria for a 100% rating is still met. It is whether there has been material improvement in the physical or mental condition evaluated as 100 percent disabling. In order to reduce a 100% rating, there must be an examination that shows such improvement. 38 C.F.R. § 3.343(a) (2007).
Other cases (not stablized for 5 years or more or not a 100% rating)
In Faust v. West, 13 Vet. App. 342, 349 (2000), the CAVC ruled that the VA is required to comply with several general VA regulations regardless of the rating level or the length of time that the rating has been in effect.
Some examples:
• Any proposed reduction must be based upon review of the entire history of the veteran’s disability;
• The VA must determine whether there has been an actual change in the disability;
• Any improvement must reflect an improvement in the veteran’s ability to function under the ordinary conditions of life and work; and
• Examination reports reflecting any such change must be based on thorough examinations.
Finally, any proposed reduction in rating is governed by 38 C.F.R. § 3.105(e):
e) Reduction in evaluation -- compensation. Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.
(Authority: 38 U.S.C. 5112(b)(6))
Hope this was helpful.
Rating in effect for 5 or more years (Stablized ratings).
38 C.F.R. § 3.344(a) requires that “all the evidence of record” support the conclusion that sustained improvement in the disability has occurred in order to reduce a rating. The VA cannot view the single examination upon which the reduction is proposed “in isolation from the rest of the record.” Schafrath v. Derwinski, 1 Vet. App. at 594.
This means that the entire medical history of the disability must always be considered together with any rating examination upon which a reduction is proposed.
In Schafrath v. Derwinski, the court explained:
"These requirements for evaluation of the complete medical history of the claimant’s condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. These considerations are especially strong in a ratings reduction case."
There are other rules the VA must follow before reducing a rating that has been in effect for five years or more. The VA must review “the entire record of examinations and the medical-industrial history . . . to ascertain whether the recent examination [upon which the VA is relying to reduce the rating] is full and complete.” Brown, 5 Vet. App. at 419 (citing 38 C.F.R. § 3.344(a)). Any examination that is not as full and complete as the examination that resulted in the grant or continuation of a rating may not be used as a basis of reduction. 38 C.F.R. § 3.344(a) (2007)
If the disability is subject to temporary/episodic improvement, it will not be reduced based on any one examination, except in those circumstances in which all the evidence of record “clearly warrants the conclusion that sustained improvement has been demonstrated.” 38 C.F.R. § 3.344(a) (2007). Even if material improvement in the disability is clearly demonstrated, the VA “will [consider] whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.” 38 C.F.R. § 3.344(a) (2007)
Ratings in effect for 20 years
If a disability has been continuously rated at or above a particular rating level for twenty or more years, the VA cannot reduce the rating below that level unless it discovers that the rating was based on fraud. 38 USC § 110
This also applies to ratings that were awarded retroactively as part of an appeal.
Total (100 Percent) Disability Evaluations
The issue in these cases is not whether the criteria for a 100% rating is still met. It is whether there has been material improvement in the physical or mental condition evaluated as 100 percent disabling. In order to reduce a 100% rating, there must be an examination that shows such improvement. 38 C.F.R. § 3.343(a) (2007).
Other cases (not stablized for 5 years or more or not a 100% rating)
In Faust v. West, 13 Vet. App. 342, 349 (2000), the CAVC ruled that the VA is required to comply with several general VA regulations regardless of the rating level or the length of time that the rating has been in effect.
Some examples:
• Any proposed reduction must be based upon review of the entire history of the veteran’s disability;
• The VA must determine whether there has been an actual change in the disability;
• Any improvement must reflect an improvement in the veteran’s ability to function under the ordinary conditions of life and work; and
• Examination reports reflecting any such change must be based on thorough examinations.
Finally, any proposed reduction in rating is governed by 38 C.F.R. § 3.105(e):
e) Reduction in evaluation -- compensation. Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.
(Authority: 38 U.S.C. 5112(b)(6))
Hope this was helpful.
What I am doing is that I am appealing one thing that I do have more evidence on and also adding a claim that I also have medical evidence from the Marine Corps. MY concern is that when I go to have these two issues evaluated that they will for some reason decide to reduce my ratings on something else? Maybe I am being paranoid but I would rather know in advance if that can happen. Thank you for all the help so far!