VA Proposed to Reduce My Rating: Deadlines, Hearings, and the Rules VA Must Follow

Under 38 C.F.R. § 3.105(e), when a lower rating would reduce or stop compensation payments you are currently receiving, VA must first prepare a rating that proposes the reduction and sets out "all material facts and reasons." VA then sends notice to your latest address of record.

That notice opens two windows, both counted from the date of the notice:

• 30 days to ask for a predetermination hearing. Under § 3.105(i), if VA receives your hearing request within 30 days, your payments continue at the current level until VA makes a final decision. The hearing is held by VA staff who did not take part in proposing the reduction.
• 60 days to send evidence. You have 60 days to submit additional evidence showing your rating should stay where it is.

If you do not ask for a hearing and send nothing new, the regulation says VA's final action "will be based solely upon the evidence of record." If VA does reduce the rating, the reduction takes effect on the last day of the month in which a 60-day period from the notice of that final decision ends. Because the rules count from the date on the letter, not the date you open it, check that date first.

A reduction is not supposed to rest on a single bad day or a thin exam. Several rules shape what VA has to look at.

Ratings that have lasted five years or more. 38 C.F.R. § 3.344 applies to ratings that have continued at the same level for five years or more. VA must review the whole record, not just the newest exam. An exam that is less complete than the one that supported your current rating cannot be used to reduce it. For conditions that come and go, VA should not reduce based on one exam unless "sustained improvement" has been shown. And even when improvement is clear, VA must consider whether it is reasonably certain to last under the ordinary conditions of life. If doubt remains, VA continues the rating and schedules a later reexamination.

Ratings under five years. Under § 3.344(c), those extra protections do not apply to conditions that have not stabilized and are likely to improve. For those, a reexamination showing improvement can support a reduction. The Court of Appeals for Veterans Claims has held that the five years run from the effective date of the rating to the effective date of the reduction, not to the date of the proposal (Brown v. Brown, 5 Vet. App. 413, 417–19 (1993)).

Who has to prove what. In the same case, the Court held that in a reduction, VA must show the reduction is warranted; the Veteran does not have to re-prove the existing rating. The Court also said VA must look at the full history of the condition, and that improvement must reflect a real improvement in the Veteran's ability to function under the ordinary conditions of life and work. It held that a reduction made without following the required rules is void and must be set aside (Brown, 5 Vet. App. at 420–22).

A rating-schedule change alone is not enough. Under 38 C.F.R. § 3.951(a), a change to VA's rating schedule cannot by itself lower a rating that was already in effect. VA needs medical evidence that the condition actually improved.

Two time-based protections come from statute:

• 20 years at a rating level. Under 38 U.S.C. § 110 and 38 C.F.R. § 3.951(b), a disability rated at or above a given level for 20 or more years continuously cannot be rated below that level, except on a showing of fraud. The regulation counts the 20 years from the effective date of the rating to the effective date of the proposed reduction.
• 10 years of service connection. Under 38 U.S.C. § 1159 and 38 C.F.R. § 3.957, service connection that has been in effect for 10 or more years cannot be severed except for fraud, or when military records clearly show the required service or character of discharge was lacking. This protects service connection itself. It does not by itself stop a lower percentage.

If your rating dates are near one of these lines, the exact effective dates in your decision letters matter.

• What is the date on the proposal letter, and when do the 30-day and 60-day windows end?
• How long has the current rating been in effect? Five years? Twenty?
• Which exam is VA relying on, and is it as complete as the exam behind your current rating?
• Does your condition flare up and settle down? Does the record show those flare-ups?
• Do treatment records, work records or statements from people who see you every day show how the condition affects daily life and work?

Your decision letter and your claims file are the best places to find these dates and exams.

If VA finalizes the reduction, you receive a decision you can challenge through the usual review options: a Higher-Level Review, a Supplemental Claim with new and relevant evidence, or a Board appeal. HLR, Supplemental Claim, or Board Appeal? explains the differences, and How Long Do I Have to Appeal a VA Decision? covers the deadlines.

This article is general information, not legal advice about your situation, and no particular result is guaranteed.