Most of the time when we work with a veteran’s service-connected disability claim, our focus is on maximizing your monthly disability eligibility. On a few occasions, though, you might be faced with the possibility that Veterans Affairs (VA) can reduce your benefits by reducing your disability rating.
The VA disability 5-year rule effectively places a time limit on the VA within which to review your original disability rating.
Although at first it may seem that the 5-year rule exists to give the VA a way to look for savings by cutting your disability benefits, the true purpose of the rule is to protect your long-term right to receive disability compensation by limiting the time within which the VA can reconsider your disability rating.
The basic effect of the VA disability 5-year rule is that if your disability has lasted for five years with no material evidence of improvement, then the VA will not review it again.
The window of time when the VA is most likely to consider reducing your disability rating is the five-year period after your initial compensation and pension (C&P) examination.
Before we go further into the 5-year rule and how it might affect your VA disability rating, we must explain how the VA classifies disabilities for purposes of reviewing them for rating reduction.
You will see these terms often:
A static disability is an injury that is unlikely to ever improve because of its nature, history, and severity. The loss of a limb is an example of a static injury.
The VA will only review a static disability rating if, during your diagnosing C&P exam, objective evidence exists that the disability might show improvement in the future. Otherwise, the VA considers a static disability to be a permanent disability (see below).
A stable disability is one that, while not static, does not show any material improvement in the five years following the diagnosing C&P exam.
In most cases the VA considers a stabilized disability to be a permanent disability.
If, however, after five years the VA receives substantial medical evidence—such as from your disability treatment records—that your disability has significantly improved and is continuously getting better, then it is possible that the VA could schedule you for a new C&P examination to see if a disability rating decrease is justified.
This improvement must be more than temporary, and the burden of proving your improvement is on the VA.
As we have seen above, a static disability is usually a permanent disability. Also, a disability that has stabilized can also be a permanent disability for VA purposes.
The important thing to remember about a permanent disability is that the VA cannot review it again to reduce your disability rating.
If you have a 100 percent disability rating, and the nature of your disability is permanent, then the VA will not reduce your disability rating for the rest of your life.
After the five-year period has passed, then it becomes harder for the VA to justify a review for disability reduction purposes.
VA regulations generally prohibit the VA from further reconsideration of your disability rating if any of the following are true:
The VA does not review all disability claims within five years. Instead, the 5-year rule applies only in limited circumstances, depending on its own evaluation of your medical records, the history of the disability, and its severity.
Keep in mind that the result of a C&P re-examination may not always work against you. Your disability rating can also increase if the underlying condition worsens.
Typically, the VA determines whether your disability is static or otherwise based on the result of your original claim C&P examination.
Most of the time the VA will not consider your initial disability rating to be static. This is especially true if the VA believes your service-connected disability can show material improvement within five years.
If the VA concludes that your disability is reasonably likely to improve within five years after your C&P exam, then you can anticipate that at some point in that interval the VA will schedule you for a re-examination.
The first signal the VA will send you when it is reconsidering your disability rating will be a notice to that effect. This notice will usually come with a requirement for you to undergo another C&P examination.
If, based on the results of your new C&P examination, the VA concludes that your disability has improved sufficiently to justify a disability rate reduction (along with a potential reduction in your VA benefits), it will notify you of the decision. After that, you will have 60 days from the date of the VA notice letter to challenge the VA’s decision. This reply period is only 30 if you want to request an appeal hearing.
It is important not to let your response period pass without acting. If you fail to reply to the VA disability rating reduction letter, then it is likely that the VA will make a final determination in favor of the reduction. You can still appeal that decision, but it is better not to wait until that point.
Challenging a VA disability rating reduction requires you to provide evidence to the VA within the 60-day period after receiving the notice letter.
It is not necessary to request a hearing within the 30-day time limit. But if you do, then the VA cannot take action on the new disability rating until after the hearing.
Once the VA has reviewed your evidence and, if applicable, held your hearing, then one of two things can happen: the VA will agree with you that no disability rating reduction is needed, or it will deny your challenge.
If the VA denies your challenge to its rating reduction decision, then you still have options. These include:
The 5-year rule exists to protect you from the risk of the VA making an arbitrary or other unfair decision to reduce your VA disability benefits by reducing your service-connected disability rating. Still, sometimes misunderstandings happen that can result in an unfavorable VA rating review.
If the VA sends you a notice letter that it intends to reconsider your disability rating, or that it has decided to reduce your rating, call Stone Rose Law at 480-498-8998. We can help you to gather the evidence you will need to challenge the proposed reduction.
We can also help you with an appeal of a VA rating reduction, including your hearing if you choose.
Remember, you only have a limited time to take action to protect your VA disability benefits. Don’t wait until it is too late. Call one of our VA disability lawyers today to arrange for a free consultation, or contact us online if you have a question or prefer to set up a free appointment that way.
