Proposed Reductions
Proposed Reduction
(38 CFR 3.105(e))
Did you receive a letter proposing to reduce your VA disability rating?
1) A proposal to reduce is what they plan to do if they don’t hear back from you in the timeframe allowed.
2) Your proposed reduction letter should state that you can request a predetermination hearing within 30 days ( this gives you time to gather evidence needed ) and 60 days to submit new evidence. If you feel the exam was inaccurate than you can also write to them and let them know the reason with a request for a new one .
3) The VBA (Veterans Benefits Administration) has to show material improvement to reduce you.
4) While there are specific rules involved in reducing specific kinds of ratings, there are several general rules that the VBA must follow:
• Any proposed reduction must be based upon review of the entire history of the veteran’s disability.
• The VBA must determine whether there has been an actual change in the disability since the last rating decision.
• Any improvement must reflect a material improvement in the veteran’s ability to function under the ordinary conditions of life and work.
• Examination reports reflecting any such change must be based on thorough examinations.
• The VBA must outline the time period during which the condition is said to have materially improved.
• The VA must cite evidence of sustained improvement after one review examination (C&P), or show that evidence predominantly demonstrates sustained improvement based on more than one exam.
• The VA must explain why it is reasonably certain that the reduction reflects an improvement in ability to function under the ordinary conditions of life, including employment.
5) Sustained improvement is considered to have been demonstrated when a preponderance of evidence portrays an abatement or lessening of SC symptoms that has persisted consistently over time, across situations, and under the conditions of ordinary life. It must not be circumstantial in nature or intercurrently attributable to any of the mitigating factors discussed in 38 CFR 3.344(a), including but not limited to
• a disability’s predisposition to temporary or episodic improvement.
• temporary alleviation by prolonged rest, or
• less thorough or complete modes of examination.
• If a percentage has been in place for 5 years or more the VBA cannot rely on a single C&P exam.
This is why you must keep all your doctors informed of the status of all rated conditions.
6) Before reducing a veteran’s disability rating, the VA is required to send the Veteran a notice of proposed reduction if the change results in a monetary decrease. Keep track of all your ratings on the https://va.gov website. If the VBA reduces a rating and it does not change your combined rating and pay, they are not required to notify you of the change! The Veteran then must be given 60 days to respond before the rating can be reduced. That is 60 calendar days from the date on the letter.
The veteran is also able to request a hearing within 30 days of the notice of proposed reduction. A request within 30 days for a predetermination hearing with halt any actual reduction until a decision has been made. A predetermination hearing request must be in writing and is best on a VBA Form 21-4138.
During that 60 day period, the veteran should submit any medical evidence including new DBQs, exacerbation logs, photos (EX: skin conditions) or outside medical records that shows that his or her disability has not improved. It may also be a good idea to obtain an independent medical exam (IME), especially if the reduction is based on an unfavorable C&P exam. After the 60 day period, a final rating decision may be prepared. At that time, the veteran has another 60 day period in order to submit evidence that shows the rating should not be reduced.
7) You CANNOT counter a proposed reduction with any other type of appeal if you are still within the 60 days from the date of the notice. This includes Higher Level Reviews (VBA Form 20-0996), Supplemental Claims (VBA Form 20-0995) or full appeals to the Board (VA Form 10182). Until that 60 day mark these are going to be rejected simply because the reduction HAS NOT HAPPENED YET! If you let the reduction happen or your hearing and evidence still results in a reduction, you CAN THEN pursue these types of appeals.
NOTE! If you do not supply enough evidence after you stop the proposed reduction and you do not go into the appeal process, you will need to pay the difference.