PROTECTED RATINGS 5,10,20 and 55 Years Old Rule
The VA assigns a "rating" based on how a service-connected condition affects the claimant's ability to perform gainful employment. The determination is based on the average impact on employment, not the specific impact on the particular claimant. The severity of many service-connected conditions can change over time, so claimants have the right to ask for higher ratings when a service-connected condition worsens. The VA has the right to require periodic medical examinations and reduce ratings for conditions that get better.
Congress has determined that it is not necessary for VA to expend resources to check on a claimant's medical status under certain conditions. As a result, some ratings can become "protected" under certain conditions. A "protected" rating is a VA rating that cannot be reduced or revoked by VA in the future, absent fraud in the application. There are only a few types of protected ratings, and they are all described below.
FIVE YEAR RULE -The VA disability 5-year rule means the VA can reevaluate your existing VA disability rating within 5 years of your initial examination, if and only if, your disability condition is expected to show material improvement over time. However, the VA may still reevaluate your disability rating past the 5-year deadline if your condition has substantially improved, as shown by medical evidence. When making a VA reevaluation request, the key principles VA Raters consider is whether your current VA disability condition is considered “Static,” and/or “Permanent.”
A static disability is a disability that is considered “permanent” by its nature, history, and severity. It is assigned a permanent evaluation without the need for future examinations to determine whether or not the disability has improved.
A permanent disability exists when it is reasonably certain, based upon medical evidence, that the level of impairment will continue for the rest of the veteran’s life. Translation: Your disability is unlikely to show material improvement over time. In this instance, the disability will be assigned a permanent evaluation WITHOUT the need for future examinations.VA Raters are required to exercise prudent judgment and refer to 38 CFR 3.327(b) in determining the need for review disability examinations. For example, it is the policy of the Veteran Benefits Administration (VBA) to request future examinations only when absolutely necessary, and every effort should be made to limit cases where future examinations are requested.
TEN YEAR RULE -The VA 10 year rule means the VA cannot eliminate a rating that’s been in place for 10 years or more. However, the rating can be reduced if medical evidence shows that the disability has improved. There is always an exception to this rule if the VA determines that the original disability rating was based on fraud.
TWENTY YEAR RULE -The VA 20 year rule means if your rating has been in effect for 20 years or more, the VA cannot reduce it below the lowest rating it has held for the previous 20 years. Again, the only exception to this rule is if the VA can prove fraud.
THE 55 YEARS OLD RULE - Applies to veterans over the age of 55. Specifically, it states that if you are 55 years old, then federal guidelines dictate that you should be exempt from reexamination, except in rare circumstances or by regulation. For example, a VA regulation requires that they schedule examinations for veterans who have completed treatment for certain cancers six months after they finish treatment. These guidelines also advise that VA does not schedule a reexamination for a veteran younger than 55 but who would be 55 by the future examination date.
PERMANENT AND TOTAL RULE - Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.
Claimants should not confuse a "Permanent and Total" ("P&T") rating with a "protected" rating. A P&T rating is not a protected rating, what VA means by "permanent" because the condition is assumed to be unceasing in nature and not likely to improve. "Total" means that the maximum rating has been assigned. As a result, VA will not schedule a P&T claimant for the routine medical examinations required of other claimants. However, if VA becomes aware of medical improvement, a P&T claim can be reduced just like any other claim. This could result in a lower total rating, even if the new claim is granted. Claimants with a P&T condition should keep this in mind when considering whether to file additional claims because the resulting C&P exam could provide VA a basis to reduce the P&T claim.
VA PROPOSED REDUCTION OF BENEFITS
If VA obtains medical evidence of an improvement in the claimant's condition, VA can seek to reduce the VA disability rating. Before monthly payments can be reduced, VA must follow a formal process first to propose a reduction in the rating and then reduce the rating. Most importantly, a claimant whom VA is seeking to reduce in rating must receive notice of the proposed reduction before any change occurs and has the right to challenge the reduction and submit evidence against the reduction. Further, some long-term ratings have "protections" from reduction. In any case, a claimant receiving notice of a proposed reduction needs to respond quickly (usually within 30 days) to prevent a change in payments before they can challenge the decision to reduce.
Whatever the case, the VA must make several determinations before a reduction. These include ensuring that the proposed reduction is based on a proper medical examination; finding that there has been an actual change in the condition, not just a temporary improvement; and basing a decision to reduce on the entire history of the condition. Each of these determinations can be challenged by a claimant. A decision to reduce can be appealed the same way as an initial denial with the same risk of generating an overpayment.
When the VA decides to reduce a benefit, any VA Benefits Reduction it proposes has to be based on reviewing the entire history of the veteran's VA disability. There has to be an actual change in the veteran's disability – not just a temporary retreat of symptoms. If a veteran does not respond to the proposed reduction or does not receive a copy of the proposed reduction, they respond. Still, VA nevertheless issues a decision that finalizes the reduction; veterans do have the same rights to appeal the decision as they would for any other decision. If you receive a notification to reduce your benefits, contact your advocate immediately.
The VA Disability Advocates Main Office is Located in Las Vegas, NV. We Represent Veterans throughout the United States. 702-209-5722