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12.3. Rating Reductions
There are circumstances where the VA can reduce your disability benefits. When the VA proposes to reduce a Veteran's disability compensation, it is of the upmost importance that the Veteran act quickly by seeking the services of either an aggressive Veterans Service Organization or an Attorney accredited by the VA. The law is very clear that to assist a Veteran in the preparation, presentation, and prosecution of a claim for VA benefits, the individual must be accredited by the VA as an agent, attorney, or representative of a Veterans Service Organization, VSO, 38 U.S.C. §§ 5901-5902, 5904; 38 C.F.R. § 14.629. There is a one time only expception for a non-accredited individual to assist a Veteran in processing a claim under 38 C.F.R. § 14.630.
To verify the VA accreditation of an Attorney, Claims Agent, or VSO Representative, go to website: http://www.va.gov/ogc/apps/accreditation/
Some of the most common reasons for the reduction of you VA disabiltiy Compensation are:
I. Failure to Report for the "Pre-Reduction" Examination.
II. Unprotected Benefit Rating and Your Condition Improves
An Unprotected Benefit Rating is when your disability rating is above the minimum for the disability but below the 100% rating and you have been receiving the rating for less than five (5) years.
When reducing a total disability rating based on the severity of an appellant's condition, the burden falls on VA to show "material improvement" in the veteran's condition from the time of the previous rating examination that assigned the appellant's 100% disability rating. Ternus v. Brown, 6 Vet. App. 370, 376 (1994); Hohol v. Derwinski, 2 Vet. App. 169, 172 (1992); see also Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992); 38 C.F.R. § 3 .343(a). The reduction must be based on "[e]xamination reports showing material improvement[, which] must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life." 38 C.F.R. § 3.343(a).
Pursuant to 38 C.F.R. section 3.105(e), when the RO determines that a rating reduction is warranted, it is required to issue a proposed rating reduction, setting forth the reasons for the proposed reduction, and to allow the veteran a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. Furthermore, when, after such period, the RO issues a decision reducing the rating, that reduction does not become effective until the "[l]ast day of [the] month following 60 days after notice to [the] payee" of the reduction decision. 38 C.F.R. § 3.400(r); see 38 C.F.R. § 3.105(e). The effect of sections 3.105(e) and 3.400(r) combined is that a rating reduction cannot be made effective for a minimum of 120 days after it is proposed in writing to the veteran. Brown (Kevin) v. Brown, 5 Vet. App. 413, 418 (1993).
An important right that can easily be overlooked in the notice of a proposed reduction (because VA buries it in the notice), is the right for a "pre-determination hearing" under 38 C.F.R. section 3.105(i). A claimant has a right to this hearing if he or she requests it within 30 days of the notice of proposed reduction. Requesting a pre-determination is important because VA cannot implement the proposed reduction until after the hearing and it reaches a decision based on the evidence and the hearing. In practice, this means that a claimant can delay a reduction and continue to receive full payments for some months in order to obtain evidence or assistance.
There is a risk, however, in continuing to receive full benefit payments under these circumstances. Should the VA still conclude that a reduction is appropriate, it will create a debt against the veterans for the "overpayments" during the time waiting for the pre-determination hearing and decision. This means that a veteran can end up with lower benefits payments and owe the VA a large sum. Veteran's requesting a pre-determination hearing are, therefore, strongly urged to be careful with their finances until the reduction issue is finally decided
In every rating reduction case, the Board must "ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (requirements "operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition"); 38 C.F.R. §§ 4.1, 4.2, 4.13. Where the Court concludes that the Board has reduced a veteran's rating without observing applicable laws and regulation, such a rating is void ab initio and the Court will set it aside as "not in accordance with the law." 38 U.S.C. § 7261(a)(3)(A); Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); see Brown, 5 Vet. App. at 422; Horowitz v. Brown, 5 Vet. App. 217 (1993).
When determining whether VA was justified in reducing a veteran's disability rating that has continued at the same level for five or more years, "the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted." Sorakubo v. Principi, 16 Vet. App. 120, 12324 (2002) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993)); see also Kitchens v. Brown, 7 Vet. App. 320, 325 (1995) (holding that when the regional office reduces a veteran's rating without observing the applicable VA regulations, the reduction is void). The regulatory requirements for reducing a disability rating that has continued at the same level for five years or more are more stringent than the general requirements for increasing or decreasing a disability rating that has been in effect for a shorter amount of time. See 38 C.F.R. §§ 3.344(a)-(c); Collier v. Derwinski, 2 Vet. App. 247, 24950 (1992). "Such disabilities are considered 'stabilized,' and the regulation thus requires a high degree of accuracy in decisions reducing those ratings." Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (citing 38 C.F.R. § 3.344(c)). In addition, certain regulations "are applicable to all rating reductions regardless of whether the rating has been in effect for five years or more as required by section 3.344(c)," including 38 C.F.R. sections 4.1, 4.2, 4.10, and 4.13. Brown, 5 Vet. App. at 420.
Pursuant to sections 4.1, 4.2, and 4.13, VA is required in any rating-reduction case "to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Brown, 5 Vet. App. at 421; see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (such requirements "operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition"). In addition, "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown, 5 Vet. App. at 421; see also 38 C.F.R. §§ 4.2, 4.10.
The Court has specifically required VA to follow its own regulations when it attempts to reduce a veteran's rating. See Fugere v. Derwinski, 1 Vet. App. 103 (1990) (holding that VA was required to give notice and opportunity to be heard prior to deleting provision of VA Adjudication Procedure Manual M211MR that had provided regulatory-like procedural protections prior to reducing veteran's rating, and noting: "Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures." (citations omitted)), aff'd, 972 F.2d 331 (Fed. Cir. 1992). The Court determines de novo whether VA has followed and applied its own regulations in reducing or terminating VA benefits. See Wilson (Merritte) (making determination de novo without so stating) and Fugere (same), both supra; Brown (Kevin) v. Brown, 5 Vet. App. 413, 41621 (1993) (same); cf. Buzinski, supra (reviewing de novo compliance with VA regulation regarding mortgage foreclosure).
If VA affords to a veteran the applicable procedural protections and nonetheless determines that a reduction in rating is warranted, the determination as to the degree of disability under the applicable diagnostic code is a finding of fact subject to the "clearly erroneous" standard of review. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Faust v. West, 13 Vet. App. 342, 348 (2000).
In reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of section 3.105(e) apply but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. If a veteran with a total disability rating for compensation purposes based on individual unemployability begins to engage in a substantially gainful occupation during the period beginning after January 1, 1985, the veteran's rating may not be reduced solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of 12 consecutive months. For purposes of this subparagraph, temporary interruptions in employment which are of short duration shall not be considered breaks in otherwise continuous employment. 38 C.F.R. §§ 3.343(a), (c); Faust v. West, 13 Vet. App. 342, 352 (2000).
There is a clear distinction between a claim challenging a reduction in a schedular rating and one involving a claim for a restoration or an increase in a schedular rating. See Peyton v. Derwinski, 1 Vet. App. 282 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). "The initial procedural burden regarding proposed rating reductions [pursuant to section 3.343(a) ] ... falls squarely on the VA to show material improvement from the previous rating examination that had continued a veteran's 100% disability rating." Ternus v. Brown, 6 Vet. App. 370, 376 (1994). "[T]he circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary." Dofflemyer, 2 Vet. App.at 280.
That the Court has jurisdiction to review the BVA's failure to decide the improper reduction claim is clear. See 38 U.S.C. § 511(a) ("The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary to veterans ..."); In the Matter of Fee Agreement of Smith, 10 Vet. App. 311 (1997) (BVA failure to adjudicate veteran's claims properly before it was a final adverse decision with respect to that claim); Suttmann v. Brown, 5 Vet. App. 127, 133 (1993) (Board erred in failing to adjudicate a claim reasonably raised to it); see also Carpenter v. Gober, 11 Vet. App. 140 (1998) (an implied claim which is not reviewed by the BVA is considered a denial). Thus, while the Court may not review nonfinal BVA decisions to remand, it clearly mayindeed, mustreview claims explicitly or implicitly raised by the appellant and not adjudicated by the BVA.