Some veterans have what are called Protected Benefit Rates. Even though these veterans may have to go for medical reexaminations, their benefit rates are protected, meaning it is very hard for the VA to reduce their disability rating.
Protected Benefit Rates
In the following circumstances, your benefit rates are protected.
Rating in Effect Five Years or More
If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.
Rating in Effect 20 Years or More
If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.
When considering whether to reduce a disability rating of 100%, it would be logical to expect the VA to evaluate whether your symptoms meet the criteria for a 100% rating. That is not the issue the VA looks at, however. The issue is whether your mental and/or physical condition has materially improved.
The fact that you have had a little improvement is not enough. Unless the reexamination report shows material improvement, the VA cannot reduce your rating. If you can get a private (non-VA) doctor to give a medical opinion that your medical condition hasn't improved since the 100% rating was instituted or continued, this will help protect your rating from reduction.
Even in cases where your disability has materially improved, your rating can still be protected from reduction if you are unable to work due to your service-connected disability. In those cases, you are entitled to a 100% rating based on "individual unemployability."
Unprotected Benefit Rates
If you do not have one of the protected rates, the VA still cannot reduce your rating after a reexamination unless:
- there has been an actual improvement in your disability
- this improvement creates an increased ability to function in your life and at work
- the reexamination report is thorough, and
- the entire medical history of your disability has been reviewed.
If you go to jail, the VA can temporarily reduce your benefits. See Nolo's article on VA benefit reductions if you go to jail.
When Can the VA Terminate My Disability Compensation?
Benefits for disabilities with a service connection can be reduced (as described above), but rarely stopped altogether. If you have been receiving service-connected benefits for ten years or longer, your benefits receive special protection from termination. The VA cannot terminate these benefits unless you committed fraud or unless the VA made a "clear and unmistakable error" in granting you benefits (CUE). A clear and unmistakable error would include granting you benefits if you have a disqualifying type of discharge (for example, dishonorable) or if you had not meet the minimum service requirements.
Even if you have been receiving service-connected benefits for less than ten years, it is still quite rare for the VA to terminate these benefits. In any case, the VA cannot terminate your benefits unless you first receive a notice from the VA telling you about your right to have a hearing. You also have the right to appeal any decision to terminate your benefits.
If you receive a notice from the VA that your service-connected benefits may be terminated, contact a disability lawyer right away.
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