- Hi welcome back to Hill & Ponton VA disability blog.
I'm Natalia Jofre, the company COO.
- And I'm Attorney Rachel Cheek.
- So Rachel, today we have a spicy topic.
Which is reductions.
And the $100 million question clients ask us,
why is the VA reducing my benefits?
So-- - Great question!
- I'm assuming there's a multitude of answers.
But generally speaking,
why would the VA reduce someone's benefits?
- Well generally the VA's reasoning now
if that's the actual reason or not
I don't know, up to you to decide.
The VA's reasoning when they will send a reduction proposal
is that whatever condition that they're proposing
to reduce has gotten better.
And so they're saying, okay well,
while you may have this condition was,
say 50% disabling in the past,
we believe that it's improved.
So now we're proposing to reduce it to 20%, 10%.
- Okay, okay.
So it's not necessarily always that
they are taking it all away,
but they just may feel that there's aspects of your claim
or of your condition that have gotten better.
And so they're gonna reduce
the service connected percentage.
- Right.
- So can you ever think of a case
where the reduction in the rating
has actually been accurate or proper?
Because I know that with most conditions
like a VA back condition.
This is not highly unlikely it's ever gonna get better.
You know, PTSD that's never really gonna get,
I mean it may get to the point
to where you can live with the pain
or you can live with the condition
or you treat it to where you can function,
but to the point to where it improves
to have a reduced rating,
that seems highly unlikely for a lot of,
or most conditions that I can think of
that we help veterans with.
But do you have any examples where you can think of
that it's been accurate?
- Sure, so you actually raised some great points.
So we're gonna get into later
as far as whether conditions improve,
how do we show that they've improved?
The one thing that I can think that type of condition
where reductions will be taken and generally,
it is the right decision is cancers.
Cancers will be rated at a hundred percent
while they're active, while you're in active treatment.
But if you later go and you say, have prostate cancer,
you're rated at that maybe rated at a hundred percent
while you're getting treatment,
say you have surgery or the,
whatever treatment you're getting works,
it goes into remission,
you will be then reduced to
whatever the residuals of that cancer costs.
- That's a great example 'cause I know we've seen that,
I've seen that a lot in like breast cancer cases.
So during the time, right.
And then once it's in remission,
'cause we do, we hear it all the time.
I've been in remission for 10 years or 20 years
or whatever the situation may be, okay.
- I'll say this,
sometimes they will just automatically reduce the rating
and it shouldn't be go down necessarily to zero.
So I'll use this as an example.
So the prostate cancer for example,
you're rated at a hundred percent.
It goes into remission or you had surgery,
they might have this happen with one client.
You know, they dropped this rating down to zero.
Well, he still had residuals from this cancer
and he had urination problems.
There were certain issues that still come up
after you have surgery that can be complicated.
However the VA,
rather than looking at these other residual conditions
that he had due to the cancer,
they just dropped his rating down to zero,
saying that he didn't have any issues.
So that was an issue where the reduction
from a hundred percent was proper,
but all the way down to zero was not.
- Was not, okay.
You talked about wanting to get a little bit more
into like PTSD and back conditions.
So what do you see in those types of conditions?
- So, well, it's not the specific conditions per se,
but it is as far as when the VA decides to reduce.
So we'll use that for an example.
So we'll use, PTSD as example.
Say you have, you're rated at 50% for PTSD.
You routinely will have,
be scheduled for C&P Exams periodically
every few years or so.
For most conditions you'll be rescheduled for another exam
every now and again just to see how you're doing.
Some conditions again do get better.
Great majority don't.
So say you have a 50% rating for PTSD.
You've been having the 50% symptoms
from the time you've been rated
it comes around time for your next C&P Exam.
You go, the examiner finds that your conditions improved.
Whether or not that's true,
that's what we're gonna get into.
But the examiner says your conditions improved.
Consequently the VA proposes to reduce your rating,
based upon this one exam.
That's not what they're supposed to do.
VA's not supposed to take a look at one exam and say,
okay, well we're gonna take this over all the evidence
that's already in the record. - I was gonna say,
because normally when you're trying to prove a claim,
I mean you submit tons of records
and different statements and different C&P Exams.
I mean like all of these evidence.
And then based on one exam or one evaluation
for them to take it all away or reduce it.
- It's not proper. - Seems pretty unfair.
Okay, so not proper is accurate.
Okay, so if that happens, then what's your recourse?
- So when the VA proposes to reduce your rating,
they can't just do it out of nowhere.
So unless they reduce your rating,
but your combined rating doesn't go down.
So say you have a a 70% combined rating,
they reduce a very small rating for your left pinky.
It doesn't affect your overall 70% rating.
They don't have to give you notice of that
because it doesn't actually affect
your amount of monthly benefits.
But for the vast majority of reduction cases,
the VA that is going to reduce your overall benefits,
your overall monthly benefits.
The VA has to give you notice.
So, when the VA decides they wanna take a proposal,
of reduction they have to send you a notice
and it'll let you know, hey, this is our proposed action,
we would like to reduce this rating from 50% to 30%
you have 60 days to submit evidence argument.
Tell us why they shouldn't be taken.
So those 60 days are key, so as soon as you get that notice,
you are on notice to start preparing
if you think that this reduction is improper.
A lot of the times they are, so--
- It's almost like start the clock.
- Exactly.
- Yeah, the clock is ticking.
- When we get one of these that's immediately we do,
we put it into the calendar and we note our deadlines.
So important, the first 30 days after you get that proposal
are really important because during those first 30 days,
you can ask for a hearing, for predetermination hearing.
What that effectively does
is that kinda gives you some extra time.
Because when you request a hearing with the VA,
they then can't make a decision
without conducting that hearing.
You have a right to that.
Now, if you don't request a hearing,
the 60 days keeps ticking,
but you're not really getting yourself any extra time
or you're not really giving yourself a chance
to maybe be able to speak with someone
at the VA representative and explain
why exactly your condition has or hasn't gotten better.
So that's definitely something I'd recommend
if you ever get a proposal for reduction
within that first 30 days, ask for personal hearing
it's your right.
Additionally, within those 30 days or the next 30 days,
those 60 days after your notice,
you can be submitting new evidence in the meantime.
So you can show, there can be a statement
hey, my condition hasn't improved.
Here are all the symptoms that I still live with.
Medical records from your doctors.
No, Mr Smith's condition hasn't improved,
here's what's going on.
You may even if the reason the VA's taking this reduction
is based off of a C&P Exam, like we talked about earlier,
that might be you have enough time within those 60 days.
You might wanna get an additional independent examination
to show, look I reviewed the same records
and the condition is not at all improving.
This examiner his findings were incorrect.
- Okay, so what can I do?
A veteran, to stop a VA reduction?
- Sure, so again, the VA has to send you a proposal.
That proposal letter that starts at 60 day clock
within that timeframe,
I mean, if your condition hasn't improved,
it's even possibly getting worse.
You need to do, you should request a hearing,
you don't have to request a hearing,
but it's just a better idea.
It buys you time,
it gives you a chance to really make your case.
Again, VA can't make a decision without holding
that hearing.
So again, request a hearing.
You also need to gather evidence.
You need to figure out,
why maybe the VA is making this decision
or making this proposal.
What can you do to show that your condition hasn't improved?
Again, evidence, statements--
- Basically counter that, right?
- Exactly, exactly.
- Like if they're saying this has gotten better,
you need to submit evidence that shows them--
- It happened. - How and why it doesn't.
- Exactly.
- Okay, perfect.
Are there any health conditions that are more prone
to being reduced than others?
- So we mentioned earlier cancers, when they're not active,
those often are reduced down to whatever the residuals
of the cancer are.
There are certain conditions that are kind of episodic,
so like manic depression, ulcers are another one.
Some people can have, you can have an ulcer condition
and they kinda come and go.
So with conditions like that,
the VA has to show that there's been sustained improvement,
that it's not just, okay well,
yeah, that you're having a good month this month.
Who's to say you're not gonna have a bad month next month.
They have to review your entire medical record.
- I used to see that a lot with MS too,
Multiple sclerosis where the person
when they were having a bad episode,
which a bad episode could last months, years.
But they would become completely wheelchair bound
or needed to use a walker, could barely care for themselves,
feed themselves I mean it was really bad.
And then suddenly they would be able
to function almost normally.
It didn't mean that the MS was cured
because that doesn't exist.
But they wouldn't be in an active flare-up if you will.
And it would get better for a short period of time,
which prompts me to a question.
So let's say you do get better for a little bit,
but then if your condition worsens again,
so let's go back to the cancer example.
So let's say the prostate cancer comes back,
what do you do then?
- So at that point,
you would want to file for increased rating.
So you would just do as you do with any other VA claim,
you'd go ahead, in this case,
it'd be a condition that you're already connected for.
So you would want to do a supplemental claim
with a supplemental claim, you need to submit evidence.
So in this case, that would be as simple as
a medical record from your doctor showing that
the cancer's returned or whatever your lab results may be.
File that.
- Okay, what are stabilized ratings?
- Okay, so stabilized ratings are ratings
that have been in effect for five years or more
at the same rate.
So when a rating's been stabilized,
the VA then they again
they can't make their determination.
They can't make a proposal to reduce
just based upon one piece of evidence in the file.
They have to take into account
all of the evidence in the record.
They have to take into account,
the condition that you were in
at the time that you got rated.
They have to compare whatever examination,
whatever evidence was in the record of that time.
with whatever evidence is in the record at the time now
that they're proposing to reduce.
Again, a lot of times that this will be based
on just one C&P Exam.
I had a case I went all the way up to the board for
where the veteran had PTSD the VA proposed to reduce it.
They actually did reduce it based on one C&P Exam.
However, this man's records throughout the entire time
from the time he got rated
to the time they proposed to reduce
showed very severe symptoms of PTSD that were not improving.
And so that's not right for the VA
to just base that off of one piece of evidence
and not the entire medical history.
- Okay, and so once again, same recourse.
So just because they're not supposed to do it
doesn't mean that they don't.
- Correct.
- Is that accurate? - That's right.
- And so what would you say, what are continuous ratings?
- Continuous ratings.
Okay, so when you've had a rating in effect
for 20 years or more at the, at either the,
this, you haven't been rated at the.
You've been rated for the same condition
for 20 years or more.
This rating may have gone up during that time,
may have gone down, but you've been rated at that condition.
Once you've had a rating in effect for at least 20 years,
the VA can't take that away, even if you've gotten better.
Unless they show that
the initial grant of service connection
or rating was based on fraud,
or clear and unmistakable error.
There was a mistake made in the original determination.
- I know that a lot of veterans worry about that.
So here's my question.
Is that commonplace?
Does that happen frequently?
So if you've already been on benefits 20 years
for this particular condition,
and like perfect example, PTSD,
10% I meet veterans all the time, Vietnam veterans.
And they've been getting 10% for 20 years.
And they have all of these problems
and now we're gonna go for an increased rating.
But they're afraid that they're gonna lose that 10%.
Is that something that they should be fearful about?
Because what they'll say to me
is that they're afraid of a reduction
or having their benefits taken away.
- So that's, I mean, I can understand that fear.
You think, okay, I've got what I've got.
I don't know that I wanna push any further.
I hear that a lot from potential clients.
But the thing is, if you've been receiving
this rating for 20 years and you have had that diagnosis,
you've had,
obviously this evidence is throughout your record.
You know, you've been getting treatment
or you can even just, you have people who know you,
who can submit evidence saying,
no, this has been going on for this long.
It's unlikely that when you have a rating that long,
the VA's suddenly going to find a way to reduce it.
If the VA wants to reduce your rating,
they're not gonna wait for you to put a claim in.
- Right.
'Cause that's the notion though.
People think it's gonna bring attention to my claim,
so the truth is they can review it whenever they want to,
whether you file a claim
or file for an increased rating or not.
- Right, and again,
as far as once a rating has been in place for 20 years,
unless the VA finds that, you were lying in the first place,
which, how often does that happen?
It's so hard for people to tell the truth
and get their claims approved.
The amount of nonsense I see from the VA stating that,
this clear medical evidence, doesn't surprise to the level.
I would honestly be impressed if somebody could lie
and get service connection.
In any case,
it's very unlikely that the VA is going to say,
oh, well we made a mistake 20 years ago.
Let's take this away because you're asking
for what you should be having now.
- Right unless they have hard evidence
that it was fraudulent.
Okay, how difficult is it to stop
a proposed rating reduction?
- So it's less difficult and more of a pain.
I mean, it's just as we were saying,
I mean it's about, it's like proving any claim.
So in this case, even though you don't file a claim,
you're still trying to prove something,
you're trying to prove that your condition
hasn't gotten better.
So it's just the same burn
as pretty much any other process with the VA.
Again, it comes down to the evidence
and it comes down to the procedure.
- Okay, and what applies if they reduce you unlawfully?
Like we hear about severance,
what can you tell us about that?
- Okay, so severance is
not only are they reducing your rating,
but they're discontinuing the service connection altogether.
They're saying, look, we service connected you for,
a back condition.
Turns out we shouldn't have done that at all.
So we're not just taking your rating away
we're decreasing your rating.
We're taking that entire service connection away.
And so it's kind of the same principle,
for reductions as well.
They have to give you notice the 60 days, et cetera.
Now once the VA say they went ahead and proposed reduction
or they proposed severance,
either you didn't realize to submit evidence
or the VA just didn't accept what you submitted.
In any case,
the proposed reduction or severance takes place.
So when the VA does that, they have to issue rating decision
in which you can appeal
and then it just interest back into the appeals process.
Like anything else, got a decision,
you're not happy with it?
You go ahead and appeal that to the VA.
It's easier I would say to stop it from happening
than getting it reversed easier as in it takes shorter time.
So if you get this proposed reduction,
you've got 60 days to kind of take care of it,
but the end of the 60 days, the VA might say,
okay yeah, sorry, we don't wanna take this,
thanks for the evidence.
Whereas if they've already taken it,
it's not saying that it won't be reversed ever,
but you have to go back through the appeal system.
So you've got to file your notice of disagreement,
your appeal, you've got to submit the evidence required.
It just takes more time.
However, in the event that the VA does recognize,
okay look, we made a mistake,
we shouldn't have reduced this,
the correct, remedy for a unlawful reduction or severance
is to restore your rating or your service connection
back to the date where they reduced it from.
So you can get that rating back if they took it,
on improperly.
- Okay, really quickly,
does it take as long to appeal a reduction
as it does to file a claim, an initial claim,
and it like the entire?
Because I know normally a regular claim,
two, three years before it's all said and done, on average.
So does this take just as long?
- I had a conference with a VA representative today.
This is 2020, for reduction proposal from 2018.
So-- - wow, it is taking--
- It can take that long, unfortunately.
- All right.
Well thanks Rachel, this was super helpful.
- Absolutely.
- Thanks for joining us
if you have any questions or concerns,
please feel free to visit our website or call our office.
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