How to Fight A VA Proposal to Reduce Your VA Disability Compensation

9th Infantry Division soldiers assaulting a wooded area near the My Tho River in 1967

I was recently with a group of a few hundred fellow VA Accredited Agents, VA Accredited Attorneys, and other advocates from all over the country. A speaker presenting to the group asked for a show of hands for those who had personally seen a notable increase in VA proposals to reduce or sever Veterans disability ratings. Almost the entire group raised their hands.

Contrary to some reports, this isn’t a phenomenon that just began when the new Trump administration took office in 2025, this predates that. The general consensus is that there was a notable increase in these proposals starting mid-2024 at the latest. A large portion of these reduction proposals are unfounded and some seem to have no basis in reality whatsoever.

There is no concrete evidence yet as to why this is happening. Some speculate that the implementation of some AI program or similar at the VA is causing this havoc. I know there are efforts by advocates to find out the truth, but the VA has not even acknowledged the issue as of yet. Surprise, surprise.

Meanwhile, Veterans get screwed with often bogus proposals to reduce or sever. This causes significant stress to Veterans and their families as well as consumes substantial VA resources that could be used to actually reduce the huge backlog of claims and appeals instead of adding to it. It’s such a waste.

So with all that in mind, let’s talk about the most effective way to navigate a VA proposal to reduce your rating.

It’s easy to forget this when you’re facing a proposal to reduce from the VA, but regulations, case law, and VA policies actually strongly favor Veterans when it comes to reductions or severance.

When a Veteran is initially attempting to get a condition service-connected, it is the responsibility of the Veteran to furnish proof that it is related to their military service. But the legal reality is that when the VA attempts to reduce those benefits, that burden of proof becomes the responsibility of the VA. This is a very important concept, and one the VA often seems to forget. But keep in mind this doesn’t mean you can just rest on your laurels if the VA makes a reduction proposal, you still need to fight ‘em.

Special Forces advisor providing M79 instruction to a CIDG trainee in 1967

There are really two main ways to fight proposed reductions:

1. If the Veteran is lacking evidence to fight a reduction, put the VA on the defensive. Push them to definitively show that the Veteran is no longer entitled to their current rating. Continue to work to gather as much evidence as possible, but make it clear to the VA by citing the appropriate regulations and case law (see further below) that the burden of proof is on them, not you.

2. If the Veteran does have solid evidence to fight the proposed reduction, try and convince the VA that the Veteran is still entitled to their current rating. Submit the evidence either in writing or at the hearing.

Whether you request a hearing or not, veterans have 60 days to submit new evidence.

Which brings up an important point: Upon receiving a proposal to reduce your benefits, always request a hearing and do so within 30 days. This ensures that the VA cannot reduce your benefits until after the hearing is held. It’s also CRITICAL to get in touch with whatever advocate you are working with (who is hopefully competent) so you can immediately get to work building your case.

Requesting a hearing can also work in your favor if you’re close to hitting the protections offered by the 5, 10, or 20 year rules as the wait for a hearing could carry you past that date potentially.

USAF Soldier with his dog on patrol for explosives during the Iraq War

Unprotected Ratings

For our discussion here we are first going to focus on ratings that have been in effect for less than five years or are not a singular 100% rating as these are considered “unprotected” and are the ones most often targeted by the VA.

Reductions of these ratings may only occur if the VA can show improvement with a thorough examination adequate for rating purposes (See 38 CFR 4.2 and 4.10) and it shows an improvement in the Veteran’s ability to function under the ordinary conditions of daily life, to include employment.

Important case law to use to fight reductions of unprotected ratings is found in Brown v. Brown, 5 Vet. App. 413 (1993). In Brown v. Brown the Court held that the provisions of 38 CFR §§ 4.1, 4.2, 4.10, and 4.13 apply to all rating reductions; therefore, an evaluation cannot be reduced, even if in effect for less than five years or have not otherwise stabilized, without finding improvement in ability to function under the ordinary conditions of life, including employment. The VA must demonstrate, by a preponderance of the evidence, that a reduction is justified.

The VA defines “ordinary conditions of life” as social interactions, recreational activities, and household chores. A big focus should be whether the Veterans quality of life has improved or not.

Infantryman PFC Carl Demarco searches Viet Cong cave

Relevant VA regulations cited in Brown v. Brown:

• 38 CFR § 4.1: Each disability must be viewed in relation to its history.

• 38 CFR § 4.2: Disabilities must be considered from the perspective of the Veteran working or seeking work.

• 38 CFR § 4.10: Evaluation should be based on the limitations the disability imposes on the Veteran's ability to function under the ordinary conditions of daily life, including employment.

• 38 CFR § 4.13: Changes in a disability rating should be based on an actual change in Veteran's condition, and not just a difference in the thoroughness of the exam that was performed.

Stern v. McDonough, 34 Vet. App. 51 (2021) is also a good case to use to fight these reductions.

1st Infantry Division RTO searching jungle during Operation Crimp in 1966

Stabilized Ratings

These are ratings that have been in effect at the same level for 5 years or more. 38 C.F.R. § 3.344 outlines the requirements the VA must to adhere to for stabilized ratings:

• It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history.

• Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction.

• Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.

If the VA obtains a single C&P exam that shows that the disability has improved, but the rest of the Veteran’s record does not show that, the VA cannot base their proposal to reduce a stabilized rating on that single exam.

101st Airborne LRRP team members packing supplies

The VA clearly bears the burden of proof in reduction cases under 38 CFR § 3.344 as shown in Hayes v. Brown, 9 Vet. App. 73 (1996). If there is any doubt after consideration of all evidence of record, the rating activity will continue the rating in effect in accordance with 38 CFR § 3.344(b), and will determine whether 18, 24, or 30 months will be allowed to elapse before reexamination will be made.

How does the VA define “sustained improvement” in the M21? They consider it to be demonstrated when a preponderance of evidence portrays an abatement or lessening of SC symptoms that has persisted consistently over time, across situations, and under the conditions of ordinary life. It must not be circumstantial in nature or intercurrently attributable to any of the mitigating factors discussed in 38 CFR § 3.344(a), including but not limited to:

• A disability’s predisposition to temporary or episodic improvement

• Temporary alleviation by prolonged rest, or

• Less thorough or complete modes of examination

For more 38 § CFR 3.344 case law to fight reductions of stabilized ratings see Schafrath v. Derwinski, 1 Vet. App. 589 (1991) and Kitchens v. Brown, 7 Vet. App. 320 (1995).

USAF soldiers and a rescued US Military pilot depart a Pave Hawk helicopter

Service Connection and the 10 Year Rule

Service connection for any disability or death that has been in effect for 10 or more years cannot be severed, unless the VA can show that the original award was based on fraud or that the Veteran did not have the character of discharge or requisite service needed to be eligible for the benefit. The 10 year period starts from the effective date of the VA decision granting service-connection.

See Hedgepeth v. Wilkie, 30 Vet.App. 318 (2018) for a case where the Court found that the VA’s decision to reduce a Veteran’s 70% rating to 0% by changing the diagnosis after 10 years constituted a severance of service-connection and was not permissible. (See 38 C.F.R. § 3.957)

Disability Ratings and the 20 Year Rule

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. If the rating has fluctuated over the course of that 20 years, it can’t be reduced below whatever the lowest rating was during that 20 years. {See 38 C.F.R. § 3.951(b)}

101st Airborne soldier eating hot meal during Operation Cook in 1967

Protection of Total (100%) Disability Ratings

Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition.

Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life.

There is no time limit for the protections of a 100% rating to go into effect – they begin immediately once the Veterans is granted a 100% rating. (See 38 C.F.R. § 3.343)

Protection of Total Disability Individual Unemployability (TDIU) Ratings

The VA cannot reduce TDIU benefits unless clear and convincing (undebatable) evidence shows that the Veteran is capable of actual employability.

The VA also can’t reduce TDIU based on the Veteran securing and following substantially gainful employment unless the Veteran is able to maintain that occupation for 12 consecutive months. {See 38 C.F.R. § 3.343(c) and Ternus v. Brown, 6 Vet. App. 370 (1994)}

Conclusion

There are also protections from reduction provided based on revisions to the rating schedule, but we won’t get into all that here. {See 38 CFR § 3.951(a)}

As a side note, cancer-related 100% ratings are exempt from the typical rating reduction rules because cancer diagnostic codes include temporal conditions to maintain a 100% rating, and the initial 100% rating isn’t expected to be permanent. But when cancer is in remission and treatment stops, the VA must follow the due process requirements in 38 CFR § 3.105(e).

VA proposals to reduce can cause a lot of heartburn, but try and remember that these are simply proposals, and that there is a process to fight these that is decidedly weighted in the Veteran’s favor!