VA Disability 5-Year Rule

If you’re a veteran receiving medical care and disability compensation, notification of a benefits review from the U.S. Department of Veterans Affairs might feel like getting audited by the IRS.

After all, they have one thing in common: the higher the stakes the higher the anxiety.

“The disability compensation is a tax-free benefit and a reliable source of income for many veterans,” said retired U.S. Army Lt. Col. Elizabeth G. Kubala, a teaching professor and the executive director of the Betty and Michael D. Wohl Veterans Legal Clinic (VLC) at the Syracuse University College of Law.

“An unexpected change to that benefit can be stressful and potentially create a financial hardship. Unfortunately, many veterans are not aware that the VA may reduce their rating in certain situations. Fortunately, veterans facing a proposed reduction by the VA can take steps to challenge that reduction.”

The VA disability 5-year rule allows the VA to revisit an existing disability rating within five years of a veteran’s initial rating but only if the disability condition in question is reasonably expected to show improvement.

The VA cannot reduce a veteran’s disability rating if it has been in place for five years or more unless the condition shows sustained improvement over time.

A re-examination of status could in some cases lead to an increase in benefits. But that possibility isn’t the norm and it certainly doesn’t relieve the stress of a review for veterans who depend on disability compensation to make ends meet.

When Will the VA Reevaluate Your Disability Rating?

A reevaluation can be scheduled anywhere from two to five years from the initial VA disability rating if the VA has reason to believe a condition is likely to improve.

Do veterans know a reevaluation is in the offing? In most cases, they should. In many cases, they don’t.

“Every vet is informed,” said Chas Sampson, a former VA rater, when asked if the VA’s intention to reevaluate is included in the initial disability rating.

“They’re told it’s part of the decision. But it is hidden in plain sight. These decisions are 10 to 15 pages long. There might be one or two sentences where they’re told the VA believes it is likely, given their condition, that a future examination (will take place.) Most vets don’t read that part. They focus on the percentage of disability and the money.”

One common example is a mental health disability rating. The VA reserves the right to reevaluate your condition within the two-to-five-year time frame to determine if your disability rating should stay the same, be increased or decreased.

Similarly, a reevaluation could be scheduled for any condition where there is evidence of material improvement. If medical evidence shows your condition has significantly improved, or it’s determined your condition is not permanent, the VA can reexamine your status even after five years.

“The No. 1 condition that gets reduced is cancer,” said Sampson, a veteran and CEO of Seven Principles Group, which helps veterans navigate disability claims. “Obviously it’s because people go in and out of remission.”

Why Does the VA Reevaluate Your Disability Rating?

Disabilities are not treated uniformly by the VA, for obvious reasons.

One condition – loss of limbs for instance, or blindness – might leave a veteran with a permanent and total disability. A mental health disability, or a cancer diagnosis, on the other hand, may not be considered permanent.

The VA reserves the right to re-examine veterans and reduce the benefits of those whose conditions might be expected to improve given time and proper treatment.

The VA mission is to fairly compensate veterans. But it is also charged with monitoring how the money is used.

“You have to remember these benefits come from taxpayer dollars,” Sampson said. “The goal is to make sure veterans get the benefits they deserve while also minding the best intentions of taxpayers who are funding those benefits.”

How Does the VA Reevaluate Your Disability Rating?

You should know at the time of your initial rating whether your status is subject to a reexamination within two to five years. But what you don’t always know is when the VA will determine that your condition is showing improvement.

The VA is required to send advance notice 60 days ahead of a reexamination. That notice might well suggest the VA believes the medical evidence on file doesn’t support a continuation of benefits at the current rate.

“If you get that notice [unexpectedly], you’re likely already a little behind the curve,” Sampson said. “If a vet has been clueless about the process until they get that notification, it’s probably too late. If you haven’t been proactive in keeping documents, it’s going to be very difficult [to fight a ratings reduction.] The deed is somewhat done.”

It’s important you keep that reexamination appointment. As stressful as the prospect is of losing benefits, avoidance makes it worse. The VA could eliminate your benefits if you miss your reexamination appointment.

If the VA decides to reduce benefits for whatever reason, you do have some recourse.

“The VA is required to notify the veteran of the proposal to reduce their rating,” Kubala said. “Veterans may then request a hearing where they can provide the VA with new information and evidence to fight the proposed reduction.

“Often a hearing is very beneficial because it allows time for the veteran to gather information such as new medical records and updated diagnoses. Veterans may also use the hearing to describe their current condition and explain their current symptoms and lack of improvement in their own words.”

Veterans can continue to appeal the VA’s determination of the need for a reduced rating even after a hearing.

Sampson’s advice is to wait six months to a year to have time to gather new supporting evidence to appeal.

“You can appeal at any time,” Sampson said. “But your test for winning is really low if you’re arguing your case without new supporting evidence. You’ll likely get another denial and ticked off all over again.”

What to Do If Your Rating Is Reduced?

Lyle Solomon, principal attorney at Oak View Law Group in Auburn, Calif., says veterans have three recourses – all of which involve appealing the decision:

• Filing new and relevant evidence: “This is the simplest recourse, and all that is required is to provide more proof beyond what was available when the first claim was examined. To submit a Supplemental Claim, veterans must complete VA Form 20-0995 and follow the instructions provided on the VA website. Any time the veteran comes across new and relevant evidence, the veteran may submit it as proof.”
• Requesting a higher level review: “If the veteran wants a second opinion on their claim but has no additional proof to submit, the veteran may use this option. The veteran must file VA Form 20-0996 within a year of the first decision date. The veteran can call their reviewer and argue why they think a modification is necessary. On average, this procedure takes 5 months to complete. Visit the VA website for a detailed explanation of the procedure. This is a single-time option; further appeals need additional evidence, which may only be submitted as a supplemental claim.”
• Appealing to a Veterans Law Judge: “A veteran can also appeal before the Board of Veterans’ Appeals (“BVA”) by filing Form 10182. The veteran will get the option to offer additional evidence if they want to appeal the reexamination evaluation before the BVA. Depending on the complexity of the veteran’s request and the volume of supporting documentation they provide, the whole process might take up to a year. If the veteran’s supplemental claim or higher-level review was denied, only then should they consider appealing before the BVA, but not in quick succession.

The BVA court will either agree with the veteran and accept their request, or rule against the veteran and reject their claim, or remand their claim and order further investigation. In such a scenario, the veteran should consult an expert in the field of appeals. After a final judgment is made at this stage, the sole recourse is to file an appeal with the federal circuit court or a supplemental claim to provide fresh evidence.”

Other VA Disability Rules and Ratings

Veterans with permanent disabilities are awarded benefits. So, too, are veterans with conditions that might be expected to improve.

The idea behind the 5-year rule is that five years is a reasonable time to determine if the disability is permanent.

The 5-year rule is not the only barometer for disability benefit status. There are other protections for veterans receiving disability benefits, and also exceptions to those protections.

VA Disability 10-Year Rule

This means the VA can’t eliminate a rating that’s been in place for 10 years or more. So, no worries? Well, the VA can still reduce the rating if substantial medical evidence provides evidence of an improved condition.

Or if it’s determined the original disability claim was based on fraud.

The VA Disability 20-Year Rule

If your rating has been in effect for 20 years or more, this rule stipulates that the VA can’t reduce it below its lowest rating.

Exception: you guessed it – fraud.

VA Disability 55-Year Rule

If you’re over 55, your rating is ostensibly protected since veterans past that age are exempt from periodic future examinations. The VA can schedule an examination only under unusual circumstances.

One qualifying scenario is that examinations are required six months after a veteran has completed treatment for certain cancers.

VA Disability 100 Percent Rule

A 100 percent VA disability rating is considered a total disability. A veteran with a 100 percent disability rating will only see a reduction of benefits if material evidence indicates that the condition has significantly improved.
In that case, the burden is on the VA to show evidence of significant  improvements in a veteran’s daily life.

Reduction or Elimination of VA Disability Benefits

One rating the VA can never reduce or eliminate is the Permanent and Total Disability rating. A “total” disability is an impairment that makes it impossible for a veteran to hold a gainful occupation. “Permanent” means it’s reasonably certain the disability will continue throughout the disabled veteran’s life.

A Permanent and Total Disability rating (it’s possible to be one or the other or both) protects the veteran from any reduction of benefits unless fraud is proven.

Veterans with other ratings are protected, too, under the various rules already mentioned. A reduction of benefits can occur after reexamination, though the veteran can contest the findings or reapply for an increase of benefits after that reduction. Again, fraud is the one trump card that the government can use to disqualify a claim.

“Some ratings are absolutely more prone to a reexamination and change in benefit status, like cancer that has been removed or is in remission,” Kubala said.  “Unfortunately, even a condition such as Post Traumatic Stress Disorder can be vulnerable if the veteran is in treatment and appears to be improving.

“This entire process is complex and can be confusing and stressful for many veterans. The best advice for veterans who find themselves facing a proposed reduction is to enlist the assistance of a VA-accredited representative or lawyer to assist them in retaining the benefits they earned.”

One common question is how work might affect a VA rating. It’s simpler to say lack of work can be a major factor in a disability rating.

“Often, veterans with high ratings have workplace issues, so lack of employment is a huge consideration,” Sampson said. “But if you go out and get a job and then excel at that job – go from making $40,000 to $200,000 – that won’t be used as a deterrent against benefits.

“They don’t look at it in that fashion. It may be considered as part of the total  package, along with personal considerations like relationships, divorces, legal and behavioral issues.”

While it’s the case that VA pension benefits are contingent on income level and net worth, disability compensation benefits are not. Disability compensation benefits are based on the level of disability.

Knowing what to expect and your protections against a disability ratings reduction can offer some peace of mind to a reevaluation process that can be stressful if not managed with help from an VA-accredited rep, agency or attorney.

“Think of the differences in how people pay taxes,” Sampson said. “Some taxpayers pay late. Some pay on time. Some pay quarterly. Our best clients are the ones who get a rating and say, ‘I don’t want to mess this up.’ They keep on top of things. Being proactive is the approach to take.”