In this article, West & Dunn founding partner, Travis James West, discusses veterans' entitlement to Total Disability Based on Individual Unemployability (TDIU) and whether a veteran’s rating can be reduced or severed.The first step in determining whether a veteran’s rating can be reduced or severed is to determine whether VA has deemed the veteran to be totally and permanently disabled. When this occurs, it means that VA does not believe there is a reasonable chance that the condition will improve. If a condition has not been classified as total and permanent, but has been continuously rated for 20 or more years, VA also cannot reduce or sever the rating unless it discovers that the benefit was granted on the basis of fraud.
Disability ratings that have not been in place for at least 20 years, and that VA has not deemed to be total and permanent, may be reduced or severed completely under certain circumstances. If the agency finds that a veteran’s condition has improved, it can reduce a veteran’s disability rating but is required to follow a particular process. It must issue a notice to the veteran describing the proposed reduction and give the veteran 60 days to submit evidence in support of maintaining the rating. VA must also provide the veteran with a hearing if requested. However, there is an exception to the notification rule. If the reduction would not change the actual amount of compensation that a veteran is receiving, the agency does not have to issue notice of the reduction.
If a condition has been continuously rated for 5 years or more at the same disability level it is considered to be a “stabilized” rating. VA has a higher burden when attempting to reduce a stabilized rating. It must show that the condition has exhibited sustained improvement, which is a higher threshold of evidence than would be required if the condition had not stabilized. For example, VA would not be permitted to rely on only one C&P examination to implement the reduction of a stabilized rating.
If VA decides to sever a veteran’s disability compensation for a condition, it must similarly provide the veteran with notice, the opportunity to provide evidence in support of maintaining the benefit, and the opportunity for a hearing if desired. Additionally, the regulations provide added protection if the condition has been service-connected for at least 10 years. Specifically, a veteran’s service-connected disability that has been in effect for 10 years or more “will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge.”
VA also has a higher burden if it proposes to eliminate a veteran’s entitlement to Total Disability Based on Individual Unemployability (TDIU). The agency can only sever the benefit if “actual employability is established by clear and convincing evidence.” As veterans with TDIU rating may know, VA will send out a yearly employment questionnaire to see if a veteran has participated in substantially gainful employment during that year. In order for the employment to be substantially gainful, a veteran would have had to be employed for 12 months or more and would have had to earn over the federal poverty threshold.
If you or a family member needs assistance appealing a VA claim, contact the legal experts at West & Dunn at 608-535-6420 or through our Contact Us page.