5.10.2 Protections against Reductions after Twenty Years of Continuous Rating at a Particular Level
If a disability has been continuously rated at or above a particular rating level for twenty or more years, the VA cannot reduce the rating below that level unless it discovers that the rating was based on fraud. 533 For example, if a veteran is granted compensation based upon an original rating of 30 percent and for the next twenty years the rating varies between 30 percent and 100 percent, the rating cannot thereafter be reduced below 30 percent in the absence of fraud. The twenty-year protection rule applies even to rating levels that are assigned retroactively because a previous final decision is revised based on a finding of clear and unmistakable error (CUE). That is, if a rating is retroactively increased [based on a finding of CUE] and the effective date of such increase is more than twenty years in the past, the revised disability percentage is protected by the twenty-year protection rule. 534 (The concept of clear and unmistakable error is discussed in Section 14.4 of this Manual.)
Footnotes
533. 38 U.S.C.S. 110; 38 C.F.R. 3.951(b)(2007); See Colayong, 12 Vet. App. at 531-32 (veterans 60 percent rating for Potts disease that has been in effect for at least twenty years is preserved by operation of law); Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992) (a rating twenty days short of having been in effect for twenty years was not protected from reduction by 3.951(b)).
534. VA. Gen. Coun. Prec. 68-91 (Sept. 26, 1991).
5.10.3 Rules Regulating the Reduction of Total (100 Percent) Disability Evaluations
Advocates unfamiliar with veterans law might logically think that when the VA considers reducing a total (100 percent) rating, the issue to be decided is whether the veterans current symptomatology is equal to the symptomatology needed for the 100 percent evaluation. 535 However, in the absence of clear error in its previous total disability rating, the issue the VA must decide is whether there has been material improvement in the physical or mental condition evaluated as 100 percent disabling. 536 Without an examination that confirms such improvement, the VA is prohibited from reducing the veterans rating. 537
The VA must compare the evidence it relied on in its most recent decision to continue the 100 percent evaluation with the evidence it intends to rely upon to reduce the 100 percent evaluation. 538 In Karnas v. Derwinski, 539 the CAVC ruled that if there has been no improvement at all since the date of the last examination continuing the 100 percent rating, a reduction is prohibited. When deciding whether there has been improvement in the veterans condition, the CAVC has held that the VA may look at both medical and nonmedical evidence to determine whether a veterans condition has materially improved. 540
**Advocacy Tip** In some instances, the evidence reveals some improvement in the service-connected disability. If this is the case, advocates are advised to compare the most recent evidence with the earlier evidence used to continue or establish the 100 percent evaluation. If feasible, the advocate should argue that there has been no improvement. Alternatively, the advocate should argue that even though there has been some improvement in the service-connected condition, this is not significant enough to constitute material improvement because some improvement does not constitute material improvement.
The regulations also preclude a reduction unless the improvement was attained under the ordinary conditions of life, i.e., while working or actively seeking work. 541 A private medical opinion stating that the claimant has not medically improved since the 100 percent evaluation was assigned or continued can be crucial in these cases. A common tactical advocacy error is to argue that the severity of the veterans service-connected condition still meets the definition of 100 percent in the rating schedule. As stated earlier, the issue is not what percentage evaluation the current symptomatology warrants but whether the service-connected condition has materially improved. Therefore, advocates should refer to the rating schedule but not rely on it exclusively.
Even if the VA is justified in reducing a total rating after applying the rating reduction rules described above, an additional rule applies that may result in the preservation of the veterans entitlement to benefits at the total rating level. If the VA determines that a reduction in a total schedular rating (100 percent) is warranted, but the record reflects that the veteran is unable to engage in substantially gainful employment by virtue of his or her service-connected disability, the veteran must be awarded a total (100 percent) rating based on the individual unemployability (TDIU) provisions of 38 C.F.R. 4.16. 542 Moreover, once a veteran is in receipt of benefits at the total rating level based on TDIU, the VA may not reduce the benefits unless clear and convincing evidence establishes that the veteran is capable of actual employability. 543
Footnotes
535. See Dofflemyer, 2 Vet. App. at 279-80 (The BVA incorrectly phrased the issue in terms of whether appellant was entitled to an increased rating; in fact and in law, the issue presented to the BVA, and to this Court, is not whether the veteran was entitled to an increase but whether the reduction of appellants rating from 100% to 10% was proper.); Peyton, 1 Vet. App. at 286 (This is a rating reduction case, not a rating increase case).
536. 38 C.F.R. 3.343(a) (2007).
537. 38 C.F.R. 3.343(a) (2007). Temporary 100 percent ratings are not subject to the general rule established by 38 C.F.R. 3.343(a) that reductions of a total rating be based on material improvement.See 38 C.F.R. 4.28, 4.29, 4.30 (2007) (regulations governing prestabilization ratings and total ratings assigned because the veteran is hospitalized or convalescing).
538. See Ternus v. Brown, 6 Vet. App. 370, 376 (1994); Dofflemyer, 2 Vet. App. at 280; Hohol v. Derwinski, 2 Vet. App. 169, 173 (1992).
539. 1 Vet. App. 308 (1991).
540. Faust v. West, 13 Vet. App. 342, 349-50 (2000).
541. 38 C.F.R. 3.343(a) (2007); see Ternus, 6 Vet. App. at 376; Dofflemyer, 2 Vet. App. at 280; Hohol, 2 Vet. App. at 173;Karnas, 1 Vet. App. at 308.
542. Hohol, 2 Vet. App. 169, 173 (1992); Gleicher v. Derwinski, 2 Vet. App. 26, 28 (1991); Karnas, 1 Vet. App. at 311;see also Manual M21-1MR, Part III, subpart iv, 8.D.14(b).
543. 38 C.F.R. 3.343(c) (2007). See Faust, 13 Vet. App. at 356. In that case, the CAVC held that evidence that indicates that a veteran is engaged in substantially gainful employment establishes that the veteran is capable of actual employability.Id. See Section5.5.1 for a discussion of substantially gainful employment.
