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VA Claims: Disabled Veterans Community|Hadit.com

Is My VA Rating Protected? After 10, 20 Years?

Spotlight, VA Disability0 comments

VA Rating Protected: 20-Year Rule

If you’ve been rated as disabled by VA for 20 years or more, that rating can’t be lowered unless it can be shown that it was awarded fraudulently. The same goes for a rating of permanent total disability for pension purposes – if it’s been in place for at least 20 years, it can’t be reduced without evidence of fraud. The 20-year period starts from the date the evaluation went into effect.

All the laws on VA Protected Ratings. Commonly referred to as the 5-Year Rule, 10-Year Rule, or 20-Year Rule

20 Year Rule

38CFR3.951 (b) Preservation of disability ratings. 20-Year Rule.

VA Rating Protected: 10-Year Rule

38CFR3.957 Service connection. 10 Year Rule.

Service connection for any disability or death granted or continued under title 38 U.S.C., which has been in effect for 10 or more years 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. The 10-year period will be computed from the effective date of the Department of Veterans Affairs finding of service connection to the effective date of the rating decision severing service connection, after compliance with § 3.105(d). The protection afforded in this section extends to claims for dependency and indemnity compensation or death compensation.

What is often referred to as the VA Rating Protected 5-Year Rule falls under Reexaminations and is presented below.

Reexaminations

Sometimes referred to as the 5 Year Rule. I put the whole regulation below for you to read it’s long but what you are looking for is contained in 38CFR3.327 (b) (1)

3.327 Reexaminations.

(a) General. Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. Individuals for whom reexaminations have been authorized and scheduled are required to report for such reexaminations. Paragraphs (b) and (c) of this section provide general guidelines for requesting reexaminations, but shall not be construed as limiting VA’s authority to request reexaminations, or periods of hospital observation, at any time in order to ensure that a disability is accurately rated.

(Authority: 38 U.S.C. 501)

(b) Compensation cases 

(1) Scheduling reexaminations. Assignment of a prestabilization rating requires reexamination within the second 6 months period following separation from service. Following initial Department of Veterans Affairs examination, or any scheduled future or other examination, reexamination, if in order, will be scheduled within not less than 2 years nor more than 5 years within the judgment of the rating board, unless another time period is elsewhere specified.

(2) No periodic future examinations will be requested. In service-connected cases, no periodic reexamination will be scheduled:

(i) When the disability is established as static;

(ii) When the findings and symptoms are shown by examinations scheduled in paragraph (b)(2)(i) of this section or other examinations and hospital reports to have persisted without material improvement for a period of 5 years or more;

(iii) Where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement;

(iv) In cases of veterans over 55 years of age, except under unusual circumstances;

(v) When the rating is a prescribed scheduled minimum rating; or

(vi) Where a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions.

(c) Pension cases. In nonservice-connected cases in which the permanent total disability has been confirmed by reexamination or by the history of the case, or with obviously static disabilities, further reexaminations will not generally be requested. In other cases further examination will not be requested routinely and will be accomplished only if considered necessary based upon the particular facts of the individual case. In the cases of veterans over 55 years of age, reexamination will be requested only under unusual circumstances.

Cross Reference:

Failure to report for VA examination. See 38CFR3.655


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