The VA 5 Year Rule and Other VA Rules

The VA 5 Year Rule – Can the VA Change Your Disability Rating and Benefits?

We get asked quite often about the VA 5 Year Rule and if the VA can indeed change your disability rating and subsequently your benefits over time. So I wanted to use this blog as an opportunity to explain the VA 5 Year Rule as it relates to Disability Indemnity Compensation. We’ll also discuss some of the other rules that the VA has, which can be difficult to understand. But hopefully all these rules will make more sense after reading this blog.

The VA 5 Year Rule for Disability Indemnity Compensation

As a general rule, VA disability ratings are protected. But that doesn’t mean that they’re not susceptible to being reduced. Sometimes the VA will wrongly assume that a Veteran’s condition is improving and reduce or discontinue the benefits. And I’ll give you an example of that below.

The VA 5 Year Rule for DIC eliminates this issue by not requiring a re-examination if the Veteran has had the same rating for five years or more. Can the VA reduce or revoke the rating after 5 years? Oh yes they can and they will! But the VA 5 Year Rule states that they must obtain medical evidence indicating that the Veteran’s condition is substantially improving over time on a sustained basis, meaning it can’t be temporary. Essentially, the VA must provide an explanation to the Veteran as to why they are reasonably certain that the Veteran’s condition will continue to show sustained improvement.

An Example from Our Office

Let me give you an example that happened in our office several years ago. We had a client who was a former Marine and we considered him part of the family. This Marine was in Vietnam and he was a little guy. Due to his size, they made him get the flashlight with his .45 and crawl through those tunnels. They called him a “tunnel rat.”

He was diagnosed and treated for prostate cancer and was in remission. He also had some congestive heart failure all pointing towards some exposure to Agent Orange. He was deemed 100% disabled and that rating continued for 5 years. Now as I understand cancer — and I’m not a doctor — you’re never truly cured. You’re just in remission.

This Marine was in remission and the VA had requested medical records from his oncologist. The oncologist notes said that he was indeed in remission. The VA assumed that he was cured, so they reduced his 100% disability rating below 50%. In their words, he was substantially improving over time on a sustained basis.

We immediately appealed stating that the VA failed to show that this Marine’s improved condition was not just temporary through a re-examination and medical records. He was simply in remission, he wasn’t cured. Cancer is not a temporary thing. Secondly, we argued to the VA that the Veteran’s claim did not demonstrate sustained improvement. Once you have cancer, you always have cancer. Additionally, his congestive heart failure exacerbated everything.

Sustained improvement is not a temporary improvement. Remember this Marine was in remission, not cured. And in this case his cancer came back with a vengeance, exacerbated by his other medical conditions. Unfortunately, he died during the appeal and the VA was very wrong in reducing his benefit. He died knowing that the VA had reduced his benefit and that they were wrong.

We filed the notice. We had 30 days to file for the hearing and 60 days to gather additional information. We were frantically trying to gather information from doctors and others to submit during this 60 day period. But again, when he died his claim died with him. So that was a tragic story in our world. We always enjoyed when he came to visit.

The VA 3 Year Rule for Aid and Attendance

The VA 3 Year Rule for Aid and Attendance is different than the VA 5 Year Rule in several ways, but mainly because it applies to VA Pension, also known as Aid and Attendance, and not Disability Indemnity Compensation. The VA 3 Year Rule for Aid and Attendance basically states that the VA can look back at your assets to see if you’ve transferred any non-exempt assets that might change your qualification status.

The VA 10 Year Rule for Disability Indemnity Compensation

The VA 10 Year Rule for disability benefits has to do with the changing of a Veteran’s disability rating 10 years after Disability Indemnity Compensation (DIC) was awarded. This rule states that the VA can reduce a Veteran’s disability rating after 10 years provided substantial medical evidence that suggests steady improvement over time. The VA can only terminate a disability benefit after 10 years if they see that there’s some kind of fraud involved. Fraud pretty much trumps everything.

The VA 20 Year Rule for Disability Indemnity Compensation

The VA 20 Year Rule for disability benefits assures that you’re pretty safe if you have had the same disability rating for 20 years. This applies to service-connected conditions that are rated at or above a certain disability rating for 20 years. According to this rule, the VA can’t reduce a continuous rating below its original rating unless the rating is deemed to be based on fraud. Once again, we see that fraud trumps everything.

I’ll give you an example of the VA 20 Year Rule. Let’s say that a Veteran was originally rated 50% disabled based on a service-connected disability. Over the last 20 years, that disability rating fluctuated between 50% and 70%. According to this 20 year rule, the VA must continue to rate that Veteran at least 50% disabled. They can’t rate that Veteran below 50% unless they find evidence of fraud, which is pretty unlikely after 20 years of receiving benefits.

Other VA Disability Indemnity Compensation Rules

There are other rules that are age specific and that apply to Veterans with a 100% disability rating. Those with a 100% disability rating usually have a permanent disability as a result of some catastrophic injury suffered in combat. If you’re assigned a 100% disability rating, the VA cannot reduce your rating unless there’s material evidence showing a significant improvement over time based on medical evidence.

Then we have the Over the Age of 55 Rule. This rule states that the VA won’t try to change your disability rating if you’re over the age of 55. There are of course exceptions to this rule just like everything else, but those Veterans over 55 are pretty much safe from changes to their disability rating.

Contact Us So We Can Help!

I hope that we have given you some good information here. Have you been affected by the VA 5 year rule? Has the VA tried to reduce your benefit because they say that you’ve improved on a sustained basis. If so, you need to call us. We can help you.

If you need assistance applying for VA Disability Indemnity Compensation or assistance with the VA 5 Year Rule, please complete this form or give us a call at (229) 226-8183. You can also send us an email to dearvaguy@gmail.com We’re here for you and your spouse and we’re very thankful for your service.

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