This week’s blog post is answered by guest blogger Margaret Wadsworth, a regular contributor to Nolo and an attorney accredited by the VA to represent veterans.
Question: The VA has reduced my benefits. I am more than confident that this action is retaliation. Their reason for the reduction is ridiculous. The one examination I went to does not even come close to showing any change in my hand disability.
It appears the VA has bypassed the federal regulations that explain the rules for reducing a veteran’s disability compensation benefit. The exam letter I received advised me that the comp and pension exam I would need to go to was just at the beginning of the very next week. And less than two months after the exam that they claimed was ordered as a mistake, I received a decision that my benefits would be lowered substantially.
The rating they reduced from 100% to 0% was a protected rating. It was protected as a stabilized rating, which has been at the same level for five years. It is also protected as a 100% rating, which can be reduced only after a re-examination has found there is a material improvement in the disability, and a material improvement in ability to function in life and work.
Furthermore, under 38 CFR 3.327(b)(2), the VA can’t send you to a re-examination if the disability has been as established as static or is of a permanent nature with no likelihood of improvement when the veteran’s symptoms haven’t shown improvement for five years or more.
I believe that this action is retaliation for my self-advocating while attempting to attain a customized VA letter. I made an accommodation request for the letter, due to fact that the letter they wanted to provide me would not be equally beneficial to me as they are to other parties requesting special letters from the VA. Under laws I can make a section 504 request verbally, as I did. This accommodation request is a protected action under ADA law.
Also, I have had a request in for a new power wheelchair for over a year now. I have gotten nothing. I have been forced to use my one manual chair, because it’s all I have. The chronic soreness I feel throughout my body has risen dramatically since using a manual chair. It seems ironic that the evidence the VA is utilizing to reduce my benefits relies heavily on my use of a manual wheelchair, when I have been requesting a power chair from them for over a year now.
Answer: Thank you for your service, and I am sorry to hear of the ordeal you are going through.
If your disability is “static”, meaning there is no medical possibility whatsoever of any improvement, or if your disability has not improved at all in five years or longer, then the VA made an error in ordering a reexamination. However, although you have had your rating for five years, it receives only limited protection. For example, if your symptoms have shown medical improvement during those five years, and that medical improvement was more than temporary and lasted for a sustained period of time, the VA had the right to request the reexamination. But in such a situation, benefits can be reduced only if the reexamination report and your full medical history support the finding that the improvement is more than temporary.
Since the VA ordered a reexamination, the VA may have believed your condition had medically improved such that a reexamination was necessary to determine whether a decrease in your service-connected disability compensation was warranted. Since you were sent notice of this exam, even though the notice was very short, you were required to either reschedule or attend the exam in order to protect your benefit rate.
If for any reason you couldn’t attend the reexamination, the VA would have had the legal right to reduce and/or terminate your benefits, regardless of your disability rating or the fact that you had this rating for five years. Although generally a rating of 100% cannot be reduced unless the VA finds that your disability has materially improved and your ability to function in your life and work has increased, any rating can be reduced for failure to appear at, or reschedule, a reexamination.
If you attended the required reexamination, then your benefits were likely reduced based on the VA doctor’s finding that your condition had materially improved, as discussed above. You may want to contact a VA-certified attorney to evaluate the doctor’s report to determine if it is sufficient. Sometimes VA doctors do not have access to your full medical history when conducting a reexamination, in which case you can challenge the report. You can also challenge the report if it’s not thorough.
I would advise you to consult with a veterans disability attorney in order to have your case file reviewed for errors and to consider an appeal.
Regarding your request for a power wheelchair, I recommend you seek that assistance of a local Veterans Service Officer. See the VA Directory of VSO’s to find assistance in your area by visiting www. va.gov/vso/.
Regarding your Americans with Disabilities Act Section 504 request, I also recommend that you consult with a disability attorney to determine what your rights are and how to protect your interests. Good luck.