Many veterans make the mistake of thinking their fight is over when the VA starts sending them disability compensation checks -- but it isn't. The VA can and will reduce veterans' disability compensation ratings. In this article, I hope to explain the rules on when the VA may or may not reduce a veteran's compensation for a service-connected disability.
It is important to note two things, before getting into the main discussion. First, this is not an exhaustive list. There are many ways, beyond those listed here, that can lead to a reduction of benefits. Those listed here are the most common ways that the VA will reduce veteran disability compensation benefits.
Second, when the VA proposes to reduce a veteran's compensation, it is vital that the veteran act immediately. Do these two things, without waiting. Do not miss the pre-reduction examination, as this alone can be a basis for the VA to reduce your monthly benefits. Find an aggressive veterans lawyer or Veteran Service Organization -- there are things that a competent and zealous advocate can do early to stop the reduction process or ensure that the veteran has a better chance of later reversing the reduction at a BVA or CAVC hearing.
Here are the rules on when the VA may, or may not, reduce a veteran's disability compensation benefits.
The VA can reduce compensation when a veteran is in any local, state or federal jail or prison for more than 60 days. On day 61, the VA can reduce the benefits; if the Veteran was receiving benefits of 20% or more, the VA can reduce the benefit to 10% (this is the current law, and could change).
An "unprotected rating" is when the benefits paid are not total (that is, under 100%) or not stabilized (that is, in effect for less than five years). The VA can reduce an unprotected rating, but only if there is an improvement in the veteran's disability, after consideration of the veterans' medical and work history, and in the ability to "function under the ordinary conditions of life and work".
A VA "stabilized rating" occurs when the veteran's disability, and the rating that the VA assigns to it, have continued for five or more years at the same level. A stabilized rating may not be reduced unless the VA can show a "sustained improvement" in the veteran's disability. A "sustained improvement" can be shown only after the VA has reviewed the entire medical and employment record in the veteran's service treatment records, post-service treatment records, and employment records in the veteran's claims file.
The VA can reduce a total impairment -- a 100% rating -- only if there is a "material improvement" in the veteran's condition. "Material improvement" is more than a subsistence of symptoms or temporary remission of a chronic condition. To find that there has been a "material improvement," the VA must compare the exam that led to the 100% rating to the pre-reduction exam, consider the entire medical history of the particular disease or injury, and must look to see whether there has been a change to the veteran's ability to "function under the conditions of daily life." If all of these criteria are not met, there has not been a material improvement.
One important note here -- the VA frequently makes the mistake of reducing a 100% or total rating because it claims, after the re-examination, that the veteran's current symptoms are consistent with a lower impairment level. This is clear error under the current law. If you have had a 100% or total disability rating reduced by the VA, I cannot stress how important it is that you have a competent veterans attorney or a Veteran Service Organization review the VA's decision as soon as possible.
A "continuous rating" is one where the veteran has received benefits at, or above, a certain percentage for 20 years or more. If this is the case, the VA may not lawfully reduce the rating unless the VA can show that the rating was procured by fraud.
As soon as you get a letter from the VA in which they indicate that they are proposing to reduce your Veteran Disability Compensation Benefits take these two steps without waiting.
1) Look to see if a re-examination appointment has been scheduled; if so, do not miss it.
2) Contact a competent and aggressive veterans' attorney or your Veteran Service Organization immediately after you receive the reduction proposal letter and/or the letter scheduling your pre-reduction medical exam. What is done in this early stage can make the difference between victory and defeat later, before the BVA or the CAVC.
For more information on whether your rating is protected or unprotected, see our article on reduction of veterans' benefits.