If you have been awarded disability benefits after a long application process, you can breathe a sigh of relief. However, the VA does not recognize all disabilities as permanent. Basically, the VA can reevaluate your disability rating every 2 to 5 years unless your rating is permanent or protected. Depending on the results of the reexamination and reevaluation, you may see a reduced rating.
Some conditions are likely to fluctuate in severity over time. An example of this? A veteran with a service-connected cancer diagnosis who goes into remission will be compensated differently when the cancer is active than when it is in remission.
This article will cover the VA rules for reviewing ratings and protecting ratings.
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How often does the VA reevaluate disability ratings?
Reexaminations, also called periodic future examinations, are typically scheduled every 2 to 5 years. A veteran who has a prestabilization rating (given to someone with a service-connected condition who recently left the service) is required to be reexamined between 6 and 12 months of leaving the service.
“The purpose of these re-evaluations is to assess the current severity of the disability,” said Cecilia Santostefano, a VA-certified disability benefits lawyer.
The VA will require a reexamination if a veteran’s disability is likely to have improved or if evidence indicates a disability rating is wrong.
The VA must send a notice of the reevaluation exam either by mail or over the phone and give you 60 days to respond. If you do not respond to the notice, the VA has the right to automatically reduce or terminate your rating. If you are unable to attend on the scheduled examination day, you can request that another session be scheduled.
If your rating is permanent or permanent and total (P&T), you will not be scheduled for reexamination. However, VA rating decisions do not always clearly state that a decision is permanent. One indication that a decision is permanent is if your rating decision letter says that no future examination will be needed. If your letter informs you of benefits that are only available to veterans with a P&T rating (such as DEA or CHAMPVA), that is also an indication your disability rating is permanent.
“VA recognizes that not all conditions are permanent,” Santostefano said. “Some wax and wane–meaning that they fluctuate in severity over time.”
When can the VA reduce my disability rating?
Following a reexamination, the VA will reach one of the following conclusions:
- Benefits will be rescinded: You are no longer experiencing symptoms that would make you eligible for compensation.
- Rating will be reduced: You are still experiencing some symptoms but have seen improvement in your disability since your last examination.
- Rating will remain the same: Your symptoms and severity have remained the same since your last examination.
- Rating will be increased: You have seen an increase in the symptoms and severity of your disability since your last examination.
If the VA does decide to reduce your rating, it will state in its decision the date this change will go into effect. It will also typically state whether this change will affect your monthly benefits payment. If you receive a higher rating, you will not get back pay related to the change. If you receive a lower rating, you typically will not have to pay anything back to the VA.
If the VA proposes to reduce your rating, the agency must notify you that it plans to reduce your monthly benefits. You will have 60 days to submit an argument and evidence against the reduction. You also have the option of requesting a hearing within 30 days of the notification about the reduction of benefits. The hearing will be conducted by VA personnel who did not participate in the proposal to reduce your benefits.
After the VA reviews your evidence it will issue a final decision. If you disagree, you can file an appeal.
If you decide to challenge a re-examination result, we strongly recommend that you contact a VA-certified disability lawyer who has experience in this situation.
What steps can I take to challenge a reexamination decision?
- Provide a doctor’s opinion to the VA that supports your continued eligibility for a disability rating. Your doctor can write a report showing that your condition still exists and that you are experiencing symptoms that would entitle you to a disability rating and, therefore, compensation.
- Provide lay statements to the VA from people in your life who are aware of your disability and its symptoms. This statement could be from a spouse, friend, or family member. For example, they could write about the persistence of a mental disorder that may not have been detectable at your reexamination.
- You could also provide a letter to the VA disputing the re-examination if you found that the exam was not thorough enough to verify your symptoms.
Does working affect my VA rating?
Even if you have a 100% combined rating, you can still work and be paid your full VA benefits. However, if you are receiving total disability based on individual unemployability (TDIU) but start working, it is possible that you can lose TDIU, which are benefits only given to veterans who are unable to work.
There are some exceptions about the working rules. If you worked in a protected or sheltered work environment (an employer that allows for altered work requirements for veterans) or have marginal employment (you currently work, but earn below the poverty threshold), you may still be eligible to receive TDIU.
TDIU is only permanent if your disabilities are considered permanent, and you are no longer scheduled for any reexaminations.
You can lose TDIU if:
- You have not submitted your annual VA Form 21-4140–a required form for all veterans who receive TDIU
- Your condition has improved, resulting in a lower rating
- You have gained the ability to maintain substantial employment.
When is my rating protected?
There are certain situations in which VA ratings are considered protected. A protected rating means that a veteran’s rating will not change under a VA rule change.
“The longer that rating has been in place, the stricter the rules are for the VA,” attorney Santostefano said.
Ratings that have been in place for five years or more are considered to be stable and continuous in the VA’s eyes. For any rating that has been sustained over that time period, the VA can not reduce the rating unless the veteran’s condition improves over time.
The VA can not eliminate a rating that has been consistent for 10 years or more unless there is proof of fraud. However, the VA can reduce the rating if the condition has improved.
The only time the VA can reduce a rating that has been in place for 20 years or more, is if there is evidence of fraud.
“For example,” Santostefano said, “if you are granted a 20% rating for hearing loss in 1985, but over the next 20 years your rating fluctuates between 20% and 50%, the VA cannot reduce your rating below the initial threshold of 20% unless it finds that there was fraud involved.”
Any veteran who would be 55 by the date of their next examination is exempt from a reexamination. However, there are certain exceptions including the earlier example of a veteran with cancer who has completed treatment and is in remission.
Other situations in which future examinations may not be needed include:
- When the disability is established as static
- When the disability from disease is permanent in character and of such nature that there is no likelihood of improvement
- When the rating is a prescribed scheduled minimum rating
- When a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions
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Working with Woods and Woods to navigate the reexamination process
Santostefano cautions that the VA can also reduce a rating when a veteran files for an increased rating.
“Because a veteran’s filings can impact his or her rating, and sometimes there’s a risk of reduction, it’s important to reach out to a legal representative,” she said. “We at Woods and Woods do this every day and would love to assist you to navigate the tricky system that the VA has set out.”
Navigating the VA disability benefits system and potential rating reductions can be difficult. The VA-certified disability attorneys Woods and Woods offer free VA claim evaluations.
Contact our team to get started.
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FREQUENTLY ASKED QUESTIONS
Provide a doctor’s opinion to the VA that supports your continued eligibility for a disability rating, provide lay statements to the VA from people in your life who are aware of your disability and its symptoms, and/or provide a letter to the VA disputing the re-examination if you found that the exam was not thorough enough to verify your symptoms.
It is extremely important to not miss any exams ordered by the VA. They have been known to cancel benefits if you miss an exam. Stay in contact with the VA if you need to adjust your appointment time at any point during the 60-day response timeframe.