Can the VA send me to a new exam and reduce my disability benefits?
The Veterans Affairs program evaluates disabilities resulting from various types of diseases and injuries that have occurred as a result of military service. The degrees of disability that are determined by VA are evaluated to reflect the average loss suffered in wages as a result of the attributable diseases and injuries. In certain circumstances, a veteran's condition can be re-evaluated at a new VA exam and his or her benefits can be reduced.
When the VA Can Send You to a Re-Examination
The Department of Veterans Affairs may request a re-examination if it's likely that your disability has improved or there is evidence that there's been a change in your condition. The VA may sometimes reduce your benefits if your disability has materially improved.
Unprotected Ratings. The VA can reduce unprotected ratings, which are those that are less than 100% ratings or ratings that have existed for less than 5 years. The VA must follow certain procedures in notifying you of the exam and scheduling a pre-reduction hearing.
Protected Ratings. Special rules apply to protected ratings, which are:
- stabilized ratings, which have been at the same level for five years. These cannot be reduced unless there is sustained improvement in your condition.
- 100% disability ratings. These can be reduced only after a re-examination has found there is a material improvement in the disability, and a material improvement in ability to funciton in life and work, or
- twenty-year continuous ratings. The VA cannot reduce your benefits if your rating has been in effect for twenty years except in the case of fraud. In terms of keeping your disability rating, Section 110 is clear that your total or permanent disability rating which has been made for compensation, pension or insurance purposes cannot be changed if it has been continuous for more than twenty years or more, unless it can clearly be shown to have been based on fraud.
For more information, see our article on protected ratings and reduction of benefits.
When the VA Can't Send You to a Re-ExaminationUnder 38 CFR 3.327(b)(2), the VA can't send you to a re-examination if:
- the disability has been as established as static or is of a permanent nature with no likelihood of improvement
- when the veteran's symptoms haven't shown improvement for five years or more
- the veteran is over the age of 55
- the rating for the disability falls under a regulated scheduled minimum rating, or
- if a combined disability evaluation (involving more than one condition) would not be affected even if one of the conditions have improved.
Notice of Re-Examination
If your benefits haven’t been reduced yet, but the VA has informed you by letter that the agency plans to reduce your benefits, it is important to cooperate. The VA letter will explain that you must attend a VA examination for the purpose of evaluating your disability rating.
Consequences of Missing the Exam
Please be aware that simply failing to show up for this examination, especially if you do so more than once and don’t explain why, can cause your benefits not just to be reduced, but eliminated. So either show up for the scheduled examination or call to reschedule it. Or, if you failed to reschedule or attend the exam, and you have a good reason for this, call the VA and explain.
If you are a no show, the VA will send you another letter explaining that you must attend a re-examination. If you do not cooperate with the re-examination, your benefits will likely be reduced or eliminated, unless you have a good reason for not being there.
What Counts as a Good Reason for Missing an Appointment
A good reason for missing a VA medical exam includes the death of an immediate family member or your own illness or hospitalization. Under these circumstances, the VA will give you another appointment for an examination.
The VA does not have clear cut rules, however, about what else counts as a good reason for not cooperating with the exam requirement. It’s critical to call the VA as soon as possible to explain why you weren’t there. If you have a reasonable explanation for why you did not show up, you may have a chance to schedule another exam and avoid the automatic reduction or termination of your benefits.
What Happens After the Examination?
Your VA Regional Office will review your new examination report to determine if your medical condition has improved.
Medical improvement. If VA finds that your condition has improved, they will likely reduce your disability rating. The VA must be able to show by the legal standard called “a preponderance of the evidence” that your condition has improved and that your ability to function in everyday life has also gotten better. Otherwise, the agency cannot legally reduce your benefits.
No change. If your examination report shows that your condition hasn’t changed, your benefit rate will stay the same.
Deterioration of condition. If the examination report shows your disability has gotten worse, your benefit rate may actually increase.
Should I Get an Attorney?
If you have an unprotected rating and the VA summons you to a re-examination, you may want to consult an attorney. The VA has legal requirements they must adhere to, such as keeping you notified of what you need to do to keep your benefits and properly examining your medical records, before they can legally reduce your benefits. A disability attorney can assess your situation and determine if the VA made an error reducing your benefits.
If you have a protected rating, it's unlikely your benefits will be reduced. But if they are, contact a disability attorney to help get your rating and benefits reinstated.