PREC 19-92 Protection of Disability Ratings under Pub. L. No. 102-86 § 103, State. 414-415 (1991) Citation: Vet. Aff. Op. Gen. Couns. Prec. 19-92, VAOPGCPREC 19-92, 1992 QUESTIONS PRESENTED:
1. In the event of a readjustment in the rating schedule, does section 103 of the Veterans' Benefits Programs Improvement Act of 1991, Pub. L. No. 102-86, 105 Stat. 414-415 (1991) prohibit any reduction in the evaluation assigned to a service-connected
disability unless new medical evidence supports a reduction of the rating under the superceded rating criteria?
2. Does the protection afforded by section 103 extend to minimum ratings that have been eliminated by a readjustment of the rating schedule? This question was illustrated by the following hypothetical situation: A veteran is receiving a minimum 10 percent rating under 38 C.F.R. Part 4, Diagnostic Code 7528 for residuals of a malignancy of the genitourinary system. After the minimum rating is eliminated by a readjustment of the rating schedule, the veteran suffers a recurrence of cancer and is assigned a 100 percent evaluation for the allowable period under the new rating criteria. If as a result of treatment the cancer again disappears completely leaving no residuals, may a noncompensable evaluation be assigned under the new rating criteria or must the 10 percent minimum evaluation be assigned under the superceded criteria?
3. Does section 103 permit, in a case where a veteran has a combined disability evaluation, the reduction of individual evaluations by reason of new rating criteria rather than an improvement in the veteran's disability as long as the combined evaluation, and hence, the total monetary benefit is not reduced?
4. In the event of legislative changes to those provisions of 38 U.S.C. § 1114 which prescribe the circumstances under which special monthly compensation is payable, would the protection afforded by section 103 extend to veterans who are no longer
entitled to payment of special monthly compensation by reason of changed criteria rather than an improvement in their disabilities?
HELD:
1. Section 103 of the Veterans' Benefits Programs Improvement Act of 1991, Pub. L. No. 102-86, 105 Stat. 414-415 (1991) requires that when evaluating service-connected disabilities, adjudicators consider both the old and the new rating criteria and apply the new criteria when an improvement in a disability sufficient to warrant a reduction under the old criteria occurs.
2. The protection afforded by Section 103 of the Veterans' Benefits Programs Improvement Act of 1991, Pub. L. No. 102-86, 105 Stat. 414-415 (1991) applies only to ratings in effect when an adjustment in the rating schedule occurs. Hence, if a veteran
is receiving a minimum 10 percent rating under 38 C.F.R. Part 4, Diagnostic Code 7528 for residuals of a malignancy of the genitourinary system when the minimum rating is eliminated by a readjustment of the rating schedule and he or she subsequently
suffers a recurrence of cancer and is assigned a 100 percent evaluation for the allowable period under the new rating criteria, should the cancer again disappear completely leaving no residuals, a noncompensable evaluation under the new rating
criteria should be assigned.
3. Even if a combined evaluation, and hence, the total monetary benefit payable for all service-connected disabilities is not reduced, section 103 of the Veterans' Benefits Programs Improvement Act of 1991, Pub. L. No. 102-86, 105 Stat. 414-415 (1991) does not authorize the reduction of individual disability ratings under new rating criteria in the absence of evidence of improvement in a veteran's disability.
4. In the event of legislative changes to those provisions of 38 U.S.C. s 1114 which prescribe the circumstances under which special monthly compensation is payable, the language and, if necessary, the legislative history of such legislative changes will determine whether Congress intends to preclude reductions in the rates of special monthly compensation solely by reason of the changed criteria.
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