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Proposed Rating Reduction, Incompetence, or Entitlement Severance

You got some bad news today, so go ahead and have your brief moment of anxiety and panic.

But know that not all is loss and that there are steps and procedures in place to handle this situation!

What to Do

  1. Take a deep breath.

  2. Request a personal hearing IMMEDIATELY! The VA WILL continue to pay you at your current Combined disability rate until after the reduction process has finished (if a reduction is made) - but ONLY if you request a hearing quickly!

    • To request a hearing, upload a Personal statement informing the VA of your desire for a personal hearing HERE.

  3. Develop a plan to win while you wait for the hearing to be scheduled! That means reading the decision letter enclosed in your proposed reduction/severance letter to see why the VA feels a reduced rating/severance is appropriate, obtaining additional medical evidence, DBQs, personal statements, Buddy statements, etc. And of course, be sure to Upload your evidence BEFORE the hearing!

  4. Eventually, you will receive a letter letting you know that a predetermination hearing has been scheduled. This letter will include information such as when and where the hearing will take place.

  5. After the hearing a determination will be made as to whether or not to reduce your rating(s), assign a Fiduciary, or sever entitlement(s). If you disagree with the outcome of the hearing you CAN continue to appeal the decision like you would any claim. For more information on appeals click HERE.

But do know you will NOT maintain your former rate of pay while you continue your appeal.

IMPORTANT NOTE:

  • If the VA does NOT receive a request for a hearing within 30 DAYS of the date on the letter your reduction can become effective as soon as the following pay period!

Incompetence

The vast majority of cases in which a person runs into a proposal of incompetency is because a Mental health Examiner noted that you are "not capable of managing his or her financial affairs". HOWEVER, many examiners fail to provide a reasoning that is clear, convincing, and leaves NO doubt as to the Veteran's incompetency. The reasoning that a Veteran has a loved one or a family member handle their money is itself NOT a proper reason!

For someone to be mentally incompetent they must:

 Because of injury or disease lack the mental capacity to contract or to manage his or her own affairs, including handling of funds without limitation.

Furthermore, when reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his or her own affairs, including the disbursement of funds without limitation, such doubt WILL BE resolved in favor of competency!

Unfortunately, many raters who propose incompetency fail to properly evaluate the evidence of record and will just run with an bad opinion. This being the case, it is VERY IMPORTANT to request a hearing and/or provide evidence of your competency. Evidence can be something like a doctor's note or Buddy statements.

If found incompetent you will be required to get a fiduciary, for more information click HERE.

Reductions WITHOUT Due Process

The VA CAN reduce a Veteran's ratings WITHOUT due process IF doing so would result in the Veteran's combined rating NOT being changed.

Which means, you will have to Appeal this reduction as you would normally.

IMPORTANT NOTE:

  • If in the course of a single rating decision your combined evaluation increases and then decreases no lower than the combined evaluation you held before the rating decision due process is NOT required!

Severing Service-Connection

The removal of service-connection is a major matter which is not taken lightly by the VBA.

IMPORTANT NOTE:

  • The mere improvement of a condition, even to the point of a miraculous cure CANNOT be the basis of severing service-connection!

Service-connection is commonly severed due to:

  • The basis of the grant was a clear and unmistakable error. Common examples are:

    • Veteran was never actually diagnosed with X

    • VA conceded Agent Orange exposure in error

    • Condition was the result of misconduct

  • The basis of the grant had no legal entitlement

    • This is an exceptionally rare case in which the VA receives evidence after a grant that leads to a finding that the condition developed/caused by something during a period of service for which the VA cannot consider the Veteran eligible for VA disability or leads to findings that service-connection had no actual legal basis.

Rating/Service-Connection Protections

Do know that for Veterans who have held their ratings for various amount of time, certain legal protections are in place to prevent reductions and severances.

For more information click HERE.

Frequently Asked Questions

    • Yes, you may have the option to request a hearing done over the phone or virtually (webcam).

    • The VA will NOT pay the Veteran mileage for attending a hearing.

    • Yes.

    • Yes, if your pay was ever reduced OR there was a reduction without due process and the restoration of said rating would have resulted in your combined rating increasing.

    • You can still request a hearing, after the window has closed - just know the VA does NOT have to give you one at that point. But it is certainly worth a try!

    • Yes, you can upload evidence Here.

    • Yes, the VA will propose to sever them as well.

References