Can the VA Send Me to a New Exam and Reduce My Disability Benefits?

The VA evaluates disabilities resulting from various types of diseases and injuries that have occurred as a result of military service. Each disabling condition is assigned a "rating" that reflects the average loss suffered in wages as a result of the attributable diseases and injuries. These ratings can require that veterans attend an initial evaluation and, in some cases, a re-evaluation after separation from service to see whether their impairments have gotten better.

In certain circumstances, a veteran's disability rating can be re-evaluated at a new VA exam and their benefits can be reduced. But the VA can't arbitrarily reduce your benefits on a whim—the agency has to follow specific procedures, and it can generally only send you to a re-examination in circumstances where it looks like your injury or illness may improve significantly.

When the VA Can't Send You to a Re-Examination

38 CFR 3.327(b)(2) is the statute that addresses instances when the VA isn't allowed to send you to a re-evaluation. Broadly speaking, the VA won't send you to a re-examination if the agency doesn't think your disability will improve to the point where you could return to work before retirement age.

The VA Disability "5-Year Rule"

The VA can't schedule a re-examination for you if your symptoms have "persisted without material improvement" for five years or more. Material improvement means that the signs and symptoms of the disabling disorder have substantially lessened or abated entirely. Temporary or minor reductions in symptoms won't count as material improvement.

The VA Disability "55-Years-Old Rule"

If you're over the age of 55, the VA isn't supposed to send you for a re-examination. The only exceptions are for "unusual circumstances." Determining what constitutes "unusual circumstances" isn't well defined in the VA regulations, but it's highly fact-dependent. A veteran who had undergone an experimental therapy that was highly successful in treating an aggressive cancer may qualify as an unusual circumstances exception, for example.

The Disability is "Static"

Static disabilities are considered permanent by their "nature, history, and severity." Any disorder or disease can be static so long as the VA doesn't think it is going to improve. The VA shouldn't send you for reevaluation on a static disability.

The Disability Rating is a Prescribed Scheduled Minimum Rating

A condition that falls under the VA Schedule for Rating Disabilities may have a minimum rating for the disorder. For example, ankle replacement with prosthesis has a minimum disability rating of 20%, so a veteran with this rating won't be sent for a re-evaluation on ankle replacement.

The Combined Disability Evaluation Wouldn't Change

The VA won't send you to a new examination if your combined disability evaluation (involving more than one condition) wouldn't be affected even if one of your conditions has improved.

Protected VA Disability Ratings

"Protected ratings" are ratings that the VA typically can't reduce, and shouldn't schedule a re-examination for. For example, "stabilized" ratings—ratings that have been at the same level for five years—won't be reduced unless you've had sustained improvement in your condition. Other protected ratings include:

• terminating a service-connected disability rating you've had for at least ten years (the "10-year rule")
• reducing the disability rating below the lowest rating you've had for at least twenty years (called a "continuous rating" or the "20-year rule"), and
• reducing a 100% disability rating without evidence of material improvement based on your entire medical history.

Having a protected VA rating makes it rare, but not impossible, that the VA will send you for a new exam. For more information, see our article about when the VA can reduce your benefits following a re-evaluation.

When the VA Can Send You to a Re-Evaluation

The VA 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. If your disability has materially improved, the VA can sometimes reduce your benefits.

Unprotected VA Disability Ratings

The most common reason why veterans are scheduled for a re-examination is when their ratings are "unprotected," meaning they're rated at less than 100% or have existed for less than five years. The VA must follow certain procedures to notify you of your exam and when scheduling a pre-reduction hearing.

If the VA has sent you a letter that the agency plans to schedule a re-evaluation, it's important to cooperate. The VA letter will explain that you must attend a VA examination for the purpose of evaluating your disability rating. You then have 60 days from when you receive the letter to respond with evidence showing that your disabling condition hasn't materially improved.

Don't decide to just not show up for the examination, especially if you disagree with the VA. Not attending the examination—especially if you do so more than once and don't explain why—can result in the VA not only reducing your benefits, but eliminating them entirely. You must either show up for the scheduled examination or call to reschedule it. If you failed to reschedule or attend the exam, and you have a good reason for this, call the VA and explain as soon as possible.

What Happens After the Examination?

Your VA Regional Office will review your new examination report to determine if your medical condition has gotten better, worse, or stayed the same:

• Medical improvement. If the VA finds that your condition has improved, they will likely reduce your disability rating. Keep in mind that the agency needs to show by a "preponderance of the evidence"—meaning "more likely than not," or 50%+1— that your condition and ability to function in everyday life has 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 schedules you for 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.