Proposal to Reduce or Sever

1. NACVSO 2019 CVATraining
Presenter:
Katrina J. Eagle

2.  38 C.F.R. § 4.1 – “Over a period of many years,
a veteran's disability claim may require re-
ratings in accordance with changes in laws,
medical knowledge and his or her physical or
mental condition. It is thus essential, both in
the examination and in the evaluation of
disability, that each disability be viewed in
relation to its history.”

3.  38 C.F.R. § 4.2 – “Different examiners, at
different times, will not describe the same
disability in the same language.” . . .
 It is up to the rater to interpret the
examination reports “in light of the whole
recorded history...”
 “Each disability must be considered from the
point of view of the veteran working or
seeking work…”

4.  38 C.F.R. § 3.344(a). For ratings in effect for 5
years or more, the RO must review “the entire
record of examinations and the medical-
industrial history … to ascertain whether the
recent examination is full and complete …
Examinations less full and complete than
those on which payments were authorized or
continued will not be used as a basis of
reduction.”

5. 38 C.F.R. § 3.344(a): Stabilization of disability evals,
cont’d:
 If the disability is subject to temporary and
episodic improvement, e.g., manic
depressive or other psychotic reaction, . . .
etc., it will not be reduced on any one
examination, except in those circumstances
in which all the evidence of record “clearly
warrants the conclusion that sustained
improvement has been demonstrated.”

6. 38 C.F.R. § 3.344(a): Stabilization of disability
evals, cont’d:
 Ratings on account of diseases which become
comparatively symptom free after prolonged
rest, e.g. residuals of phlebitis, arteriosclerotic
heart disease, etc., will not be reduced on
examinations reflecting the results of bed rest.

7. 38 C.F.R. § 3.344(a): Stabilization of disability
evals, cont’d:
 Rating boards encountering a change of
diagnosis must exercise caution in the
determination as to whether a change in
diagnosis represents no more than a
progression of an earlier diagnosis, an error
in prior diagnosis or possibly a disease
entity independent of the service-
connected disability.

8. 38 C.F.R. § 3.344(a): Stabilization of
disability evals, cont’d:
 Even though material improvement in
the physical or mental condition is
clearly demonstrated, theVA “will
[consider] whether the evidence
makes it reasonably certain that the
improvement will be maintained under
the ordinary conditions of life.”

9. 38 C.F.R. § 3.344(b): Doubtful cases:
 If doubt remains, after according due
consideration to all the evidence developed,
the rating agency will continue the rating in
effect.
 The rating agency will determine on the basis
of the facts in each case whether 18, 24, or 30
months will be allowed to elapse before
reexamination will be made.

10. 38 C.F.R. § 3.957: Service Connection:
 “Service connection for any disability or
death granted…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.”

11. 38 C.F.R. § 3.957: Service Connection,
cont’d:
 “The 10-year period will be computed
from the effective date ofVA’s finding
of service connection to the effective
date of the rating decision severing
service connection.The protection
afforded in this section extends to
claims for DIC.”

12. 38 C.F.R. § 3.951(b): Preservation of disability
ratings:
 “A disability which has been continuously
rated at or above any evaluation of
disability for 20 or more years for
compensation purposes . . .will not be
reduced to less than such evaluation except
upon a showing that such rating was based
on fraud.”

13. 38 C.F.R. § 3.343(a): Continuance of total
disability ratings:
 “Total disability ratings, when warranted by the
severity of the condition…and not granted bc of IU
will not be reduced, in the absence of clear error,
without examination showing material improvement
in physical or mental condition. Exam reports
showing material improvement must be evaluated in
conjunction with all of the facts of record, and
consideration must be given particularly to whether
the veteran attained improvement under the
ordinary conditions of life, i.e., while working...

14.  In Karnas v. Derwinski, 1Vet.App. 308 (1991), 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 veteran’s
condition, the CAVC has held that theVA may
look at both medical and nonmedical evidence to
determine whether a veteran’s condition has
materially improved.

15.  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.

16. 38 C.F.R. § 3.343(c): Individual Unemployability
 IfVA determines that a reduction in a 100% rating 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 rating
based onTDIU.
 Moreover, once a veteran is in receipt of benefits at
the total rating level based onTDIU, theVA may not
reduce the benefits unless “clear and convincing
evidence” establishes that the veteran is capable of
“actual employability.”

17.  Any rating evaluation that has “stabilized” at the same
level for five years or more may not be reduced unless
all the evidence of record shows sustained
improvement in the disability.
 VA cannot view the single examination upon which the
reduction is proposed “in isolation from the rest of the
record”.
 The entire medical history of the disability must always
be considered in conjunction with any rating
examination upon which a reduction is proposed.

18.  Veteran is s-c’ed for PTSD, rated 70%, effective April 2005.
 In June 2015, C&P examiners determine that the veteran’s
psychiatric condition was diagnosed as a personality
disorder rather than PTSD – but the severity of symptoms
still warrant 70% rating.VA proposes to reduce.
 January 2016VA implements reduction of PTSD rating
from 70% to 0%.Veteran appeals BVA denial to CAVC. He
argued that the reduction amounted to a de facto
severance of s-c for PTSD.
 VA argued no severance, ”reattributed” the symptoms to
personality disorder which cannot be s-c per law.
 How did CAVC rule?

19. Hedgepeth v.Wilkie, CAVC No. 17-0794 (Nov.
7, 2018)
 Where the Board fails to observe applicable
laws and regs in reducing aVeteran’s rating,
such a rating is “void ab initio”. Here, the
Court set it aside as “not in accordance with
law” because the Board failed to follow the
laws and improperly shifted the burden of
proof to theVeteran.
 Here,VA failed to follow §§ 3.343, 3.344 re
reductions and § 3.105(d) for severance

20. In particular, 38 C.F.R. § 3.344:
 Rating boards encountering a change
of diagnosis must exercise caution in
the determination as to whether a
change in diagnosis represents no
more than a progression of an earlier
diagnosis, an error in prior diagnosis or
possibly a disease entity independent
of the service-connected disability.

21. “These requirements for evaluation of the
complete medical history of the claimant’s
condition operate to protect claimants
against adverse decisions based on a single,
incomplete or inaccurate report and to
enableVA to make a more precise evaluation
of the level of the disability and of any
changes in the condition.” Schafrath v.
Derwinski, 1Vet. App. 589, 594 (1991).

22.  Any proposed reduction must be based upon review of
the entire history of the veteran’s disability.
 TheVA must determine whether there has been an
actual change in the disability.
 Any improvement must reflect an improvement in the
veteran’s ability to function under the ordinary
conditions of life and work.
 Examination reports reflecting any such change must be
based on thorough examinations.

23.  A reduction in a veteran’s disability evaluation is
NOT permitted merely because a later
adjudicator has a different opinion on how the
evidence or the rating schedule should be
interpreted.
 VA bears the burden of proof in establishing, by a
preponderance of the evidence, that a reduction
is warranted under the relevant regulations.

24. Per 38 C.F.R. § 3.105(d):
VA has established that “service connection
will be severed only where evidence
establishes that it is clearly and unmistakably
erroneous (the burden of proof being upon
the Govt). A change in diagnosis may be
accepted as a basis for severance action if…

25. Per 38 C.F.R. § 3.105(d):
…the examining physician(s) certify that, in
light of all accumulated evidence, the
diagnosis on which service connection was
predicated was clearly erroneous.
This certification must be accompanied by a
summary of the facts, findings, and reasons
supporting the conclusion.”

26.  38 U.S.C.S. § 6103 provides that a person who
knowingly makes a false or fraudulent statement
concerning any claim forVA benefits forfeits his
or her rights toVA benefits.

27.  A claimant facing a reduction must be given prior
notice of the proposed adverse action and given
at least 60 days after the notice within which to
submit evidence for the purpose of showing that
the adverse action should not be taken.
 The claimant has a right to a predetermination
hearing but it must be requested within 30 days
from the date of the notice of the proposed
adverse action.

28.  If the claimant does not submit evidence within
the 60-day period, a final rating decision will be
prepared.The veteran is notified of the final
rating decision and the award of benefits will be
reduced. A new 60-day period begins from the
date of the final decision.The reduction goes into
effect on the last day of the month on which the
new 60-day period expires.

29.  Improper rating reductions, in which the
reduction is now final, may be challenged on the
basis of clear and unmistakable error (CUE).
 In cases where the reduction guidelines have not
been properly followed, a due process challenge
should be made on direct appeal.

30.  A post-decisional change in diagnosis may be accepted as
a basis for severance action if the examining physician
certifies that, in the light of all accumulated evidence, the
diagnosis on which service connection was predicated is
clearly erroneous.
 This “certification” must be accompanied by a summary of
the facts, findings, and reasons supporting the conclusion.
 An inadequate medical opinion should not suffice to
establish that a prior diagnosis is clearly and unmistakably
erroneous.

31. Feel free to contact us:
Katrina J. Eagle
T: 858-549-1561
katrina@eagleveteranslaw.com
Jim Radogna
T: 858-549-1561
jim@eagleveteranslaw.com