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M21-1, Part III, Subpart iv, Chapter 8, Section C – Protected Ratings

Overview

In This Section
This section contains the following topics:
Topic Topic Name

1

 Twenty-Year Protection of Compensation Evaluations Under 38 CFR 3.951(b)

2

 Ten-Year Protected Service Connection (SC) Under 38 CFR 3.957

3

 Twenty-Year Protected Pension Ratings Under 38 CFR 3.951(b)

4

 Protection and Rating Schedule Changes, 38 CFR 3.951(b) and 3.952

5

 Other Protection Issues

1.  Twenty-Year Protection of Compensation Evaluations Under 38 CFR 3.951(b)

Introduction

 This topic contains information about protected evaluations for compensation purposes, including

Change Date

 April 27, 2018

III.iv.8.C.1.a.  Protected Evaluations for Compensation Purposes Under 38 CFR 3.951(b)
Preservation of disability evaluations (the protection of certain long-standing evaluations from reduction) derives from 38 U.S.C. 110 and is implemented in 38 CFR 3.951(b).
The regulation provides that a disability compensation evaluation of any level that has been continuously in effect for 20 years or more will not be reduced to a lower evaluation except upon a showing that the higher evaluation was based upon fraud.
Example:
A Veteran files a claim for increase in his service-connected (SC) sinusitis, evaluated at 30 percent for over 20 years.  The Department of Veterans Affairs (VA) exam on which the 30-percent evaluation was based showed that the Veteran did not have incapacitating episodes, but did suffer three non-incapacitatingepisodes per year.  This warranted only a 10-percent evaluation but the VA exam was misread as involving three incapacitating episodes.  The current VA exam still shows symptomatology warranting a 10-percent evaluation.  However, the 30 percent cannot be reduced because it is protected  and there is no evidence of fraud.
References:  For  more information on

III.iv.8.C.1.b.  Determining Whether 20-Year Protection Applies Under  38 CFR 3.951(b)
Use the following table to determine whether 20-year protection applies under 38 CFR 3.951(b).
If your purpose is to … Then calculate the period of time by considering …

determine whether a compensation evaluation that was reduced to a lower level was protected
  • the starting date as the effective date of the higher evaluation that was reduced, and
  • the ending date as the effective date of the lower evaluation subsequently assigned.
Example 1:
Reduction from 50 percent to 30 percent
  • 50 percent effective 1/1/1996
  • 30 percent effective 1/1/2015
The 50-percent evaluation was in effect for 19 years on effective date of reduction to the lower evaluation and, as such, was not protected.
Example 2:
Reduction from 50 percent to 30 percent
  • 50 percent effective 1/1/1994
  • 30 percent effective 1/1/2015
The 50-percent evaluation was in effect for 21 years on the date of reduction to the lower evaluation. The 50-percent evaluation was protected. Reduction from 50 percent to 30 percent was not permitted.
determine whether it is possible to finalize reduction before a disability evaluation becomes protected
  • the starting date as the effective date of the current evaluation, and
  • the ending date as the earliest date that a reduction could become effective.
Important:  Where a disability evaluation has been in effect for close to 20 years the application of 38 CFR 3.344 and 38 CFR 3.105may make it impossible to finalize a reduction before protection applies.

III.iv.8.C.1.c.  Protection at Lower Than the Current Evaluation
In some cases the current evaluation may not have been in effect for 20 years but the evaluation has been at a lower level for the requisite 20-year period.
In such cases, the current evaluation is not the protected evaluation but the lower evaluation is protected.  A reduction can be accomplished but not below the protected evaluation.
Example:  Reduction of the evaluation of a knee strain (38 CFR 4.71a, diagnostic code (DC) 5260) can be accomplished by 2/1/15.  Evidence supports 10-percent disability.  Assume compliance with 38 CFR 3.105 and 38 CFR 3.344.  The codesheet shows the following evaluation history:
  • 0 percent, effective 3/5/1987
  • 10 percent, effective 1/1/1990
  • 20 percent, effective 5/1/1993
  • 30 percent, effective 2/1/1997
On the earliest potential date of reduction (2/1/15) the 30-percent evaluation will have been in effect for only 18 years.  Therefore, it is not and will not be protected for the purpose of the proposed reduction.  Some reduction is possible.  However, an evaluation of at least 20 percent will have been in effect for more than 20 years.  Therefore, even though the facts support only a 10-percent evaluation, the maximum reduction possible is to 20 percent.

III.iv.8.C.1.d.  Evaluation Continuously in Effect Regardless of Recoupments and Deductions

 For purposes of determining whether an evaluation has been continuously in effect for 20 years, include periods during which recoupment or deduction applied to an award.

III.iv.8.C.1.e.  Protection in the Absence of a Monetary Award
The protective provisions of 38 U.S.C. 110 and 38 CFR 3.951 (b) do not require a concurrent award of monetary benefits.
Example:  Even though a beneficiary has elected not to receive compensation for an evaluation which has been in effect for more than 20 years, the evaluation is protected.
Reference:  For more information on protection in the absence of a monetary award, see Salgado v. Brown, 4.Vet.App. 316 (1993).

III.iv.8.C.1.f.  When Protection Does Not Accrue

 Under 38 U.S.C. 110 and 38 CFR 3.951(b), protection does not accrue for

  • a Veteran who renounces entitlement to disability benefits, or
  • ratings for other than compensation purposes, such as ancillary benefits.

III.iv.8.C.1.g.  Protection of SMC Evaluations
Protection under 38 U.S.C. 110 and 38 CFR 3.951(b) applies to grants of special monthly compensation (SMC).
Although SMC is an ancillary benefit, it is compensation and the legislative intent ofPublic Law (PL) 102-86 amendments to 38 U.S.C. 110 was to extend the 20-year protection principle to SMC evaluations.

III.iv.8.C.1.h.Calculation of SMC on Erroneous Protected Evaluations
When a compensation disability percentage is protected but erroneous, assess entitlement to SMC as if the protected disability evaluation was correct.
Example:  Where a 100-percent evaluation was just granted for arteriosclerosis and a 60-percent evaluation for another SC disability has been in effect for 20 years, SMC(s) (statutory housebound SMC) must be granted even if the 60 percent evaluation was erroneous.
Reference:  For more information on SMC and erroneous, but protected, evaluations, see VAOPGCPREC 16-1989.

III.iv.8.C.1.i.  Protection Resulting From Retroactive Increases
If a retroactive increase under 38 CFR 3.105(a) results in a Veteran having been rated for 20 years or longer at a certain level, the evaluation is protected under 38 CFR 3.951(b) and may not be reduced in the absence of a showing of fraud.  Measure the 20-year period
  • from the effective date of the assigned evaluation, not the date of the rating,
  • to the effective date of the actual or prospective reduction.
Example:  A rating decision and award dated October 8, 2015, granted an increased evaluation of a back condition from 0 to 20 percent.  The effective date of the increase is retroactive to 1994.  The evaluation is now protected and cannot be reduced except in the presence of a showing of fraud.
Reference:  For more information, see VAOPGCPREC 68-1991.

III.iv.8.C.1.j.  Protected Combined Evaluations
Do not reduce benefits when a combined evaluation has been in effect for 20 years or more except in the case of fraud.  Both the individual evaluations and the combined evaluation are protected under 38 CFR 3.951(b), even if erroneously assigned.
Example:  No rating action is warranted to reduce the erroneous 50-percent combined evaluation to the proper 40-percent combined evaluation in a case where
  • two compensable SC disabilities have been evaluated at 30-percent and 20-percent disabling, respectively, and
  • an improperly assigned combined degree of 50 percent has been in effect for 20 or more years.

III.iv.8.C.1.k.  Effect of Change in DC

 When manifestations of a disability have been evaluated at a particular level for 20 years or more, exercise caution when assigning a new DC for symptoms of that disability.  Decision makers should consider whether

  • the new DC includes the symptoms protected under the current evaluation, or
  • the new DC considers separate and distinct symptoms.
When progression of a disability warrants a different DC than originally assigned, close out the original DC and establish a new DC representing the progression of the disability.  The effective date of the new DC should be the same as the end date of the original DC.  The diagnosis text of the new DC should include the disability name and DC of the original condition.  Decision makers remain responsible for reviewing the entire record and applying 38 CFR 3.951 based on the total history of the disability.
If the new DC addresses different and distinct disability manifestations that would warrant a separate evaluation, then the prior DC must be retained and the new DC established as a separate disability and evaluation.
Important:  The change in DC does not affect the protected status under 38 CFR 3.951.
Examples:
  • An evaluation for an ankle disability may be changed to 38 CFR 4.71a, DC 5270, ankylosis of the left ankle (previously rated as left ankle limitation of motion (LOM) (38 CFR 4.71a, DC 5271)), when progression is shown such that the LOM has worsened to the extent that the joint has become ankylosed.
  • A Vietnam Veteran has been SC for a through-and-through gunshot wound (GSW) to the right leg (Muscle Group (MG) XI) evaluated at 10 percent under 38 CFR 4.73, DC 5311 effective November 21, 1968.  The service treatment records (STRs) specifically indicate that the nerves were not affected.  Over 40 years later, the Veteran is granted service connection (SC) for type II diabetes mellitus.  The GSW to the right leg has remained static; however, the medical records indicate that he has diabetic neuropathy with right foot drop.  Since both the GSW and the peripheral nerve paralysis (foot drop) affect propulsion of the right lower extremity, separate ratings cannot be granted without pyramiding.  However, a single 40-percent evaluation may be granted under 38 CFR 4.124a, DC 8521, which would consider both the symptoms of the GSW as well as the new diabetic neuropathy with foot drop.
  • When an evaluation is assigned under 38 CFR 4.71a, DC 5260 for limitation of flexion of the knee, painful motion and is protected under 38 CFR 3.951 and the evidence shows the development of instability symptoms, a separate evaluation must be assigned under 38 CFR 4.71a, DC 5257 impairment of the knee, moderate instability since the new DC addresses different and distinct disability manifestations.
References:  For more information on

III.iv.8.C.1.l.  Protection and Breaking Out Evaluations of Conditions Erroneously Rated Together

 Where two conditions have been erroneously rated as one disability for more than 20 years it is not a violation of protection to rerate them as separate disabilities as long as:

  • the combination of the separate evaluations equals or exceeds the prior single evaluation, and
  • separate evaluations are made effective to the date of the prior single evaluation.  This will ensure that the separate evaluations are properly recognized as protected.

Reference:  For more information, see VAOPGCPREC 4-1996.

III.iv.8.C.1.m.  Effect of Return to Active Duty on Protection Under 38 CFR 3.951(b)
Protection under 38 U.S.C. 110 as implemented at 38 CFR 3.951(b) requires that the disability rating must have been continuously in effect.  A return to active duty stops the accrual of protection.  The calculation of the 20 year time period for protection under 38 CFR 3.951(b) begins anew after benefits are reinstated.
The statute prohibits payment of compensation for a period in which an individual receives active service pay.  Therefore, where compensation is discontinued following reentry into active service
  • continuity of the rating is interrupted for the purposes of achieving the protection offered by 38 U.S.C. 110, and
  • the disability cannot be considered to have been continuously rated during the period in which compensation is discontinued.
Example:  A Veteran is granted SC with a 20-percent evaluation effective 1985.  The Veteran returned to active duty from 1986 to 1996.  The Veteran did not immediately submit a claim to reinstate benefits following the release from active duty.  The claim to reinstate benefits was received in October 2007, and benefits were reinstated effective October 2006, per 38 CFR 3.654(b)(2).  In January 2017, the evaluation is reviewed, sustained improvement has been shown, and a reduction to a 10-percent evaluation is warranted.  The disability rating has not been continuously in effect for 20 years or more and is not protected under 38 CFR 3.951(b), since benefits were reinstated only as of October 2006.  Following due process, the 20-percent evaluation may be reduced to 10 percent.
Reference:  For more information on the effects of reentry in active duty on disability evaluations, see VAOPGCPREC 5-1995.

2.  Ten-Year Protected SC Under 38 CFR 3.957

Introduction

 This topic contains information about the protection of SC under 38 CFR 3.957, including

Change Date

 April 27, 2018

III.iv.8.C.2.a.  Protection Under 38 CFR 3.957
Protection from severance of SC is based on 38 U.S.C. 1159, implemented by 38 CFR 3.957.
If SC for disability or cause of death has been in effect 10 or more years, propose severance only if
  • the original grant was based on fraud, or
  • it is clearly shown that the person concerned did not have the requisite service or character of discharge.
Important:  Protection against severance does not only require continuation of SC status.  VA must continue to pay compensation at the appropriate evaluation for the protected condition as if SC was not erroneous, except in cases of willful misconduct or alcohol or drug abuse.
Notes:
  • The evaluation of the erroneously-SC-but-protected disability can be increased when supported by the facts.
  • SC can be established for a condition secondary to erroneously-SC-but-protected disability when supported by the facts.
References:  For more information on

III.iv.8.C.2.b.Determining the 10-Year Period

 Measure the 10-year period

  • from the effective date of SC, not the date of the rating,
  • to the effective date of the actual or prospective severance.

A recent erroneous award of SC made effective 10 years in the past is the equivalent of a past rating that has been in effect 10 or more years.  See, VAOPGCPREC 6-2002.

III.iv.8.C.2.c.Protection of SC for Death
38 CFR 3.957 provides protection against severance of SC for the cause of death, dependency and indemnity compensation (DIC) and death compensation.
Protection for SC for cause of death does not apply to an erroneous grant of DIC when a rating decision determined that death was not SC.  See VAOPGCPREC 8-1993.

III.iv.8.C.2.d.    DC Change or Correction of Site of Disability and Protection of SC
SC for a disability is not severed simply because the site of a disability, or DC associated with it, is corrected to more accurately describe the correct disability.
Examples:
  • A disability evaluation for degenerative arthritis under 38 CFR 4.71a, DC 5003 that has been in place for over 10 years can be recharacterized as traumatic arthritis under 38 CFR 4.71a, DC 5010.
  • SC for a scar of the left iliac crest that has been in effect for more than 10 years may be redesignated as SC for scar of the right iliac crest if the scar incurred in service was, in fact, on the right iliac crest.

Reference:  For more information on DC change or correction, see

III.iv.8.C.2.e.  Protection for Benefits Under 38 U.S.C. 1151
The protection of SC under 38 U.S.C. 1159 is applicable to disabilities compensated under 38 U.S.C. 1151.
Note:  VAOPGCPREC 13-1996 previously held that protection of SC under 38 U.S.C. 1159 was not applicable to disabilities compensated under 38 U.S.C. 1151.  However, this decision has been superseded by the finding in Hornick v. Shinseki, 24 Vet.App. 50 (2010) that protection is, in fact, applicable.
Reference:  For more information on benefits under 38 U.S.C. 1151, see M21-1, Part IV, Subpart ii, 2.G.

III.iv.8.C.2.f.  Effect of  Return to Active Duty on Protection Under 38 CFR 3.957
Protection under 38 CFR 3.957 does not require continuous SC status.  Consider the total time the disability has been SC when determining whether the 10 year criteria under 38 CFR 3.957 have been met.
Example:  SC is granted in 2000.  The Veteran returns to active duty from 2004 to 2010.  Benefits are reinstated the day following discharge.  The claim is reviewed in 2018 and severance of SC is warranted for a disability that was granted effective in 2000.  Severance may not be undertaken since SC has been in effect for 10 years or more.  The Veteran’s disability is protected under 38 CFR 3.957 based on the four years prior to return to active duty plus an additional eight years following the release from that period of active duty, totaling more than ten years.

3.  Twenty-Year Protected Pension Ratings Under 38 CFR 3.951(b)

Introduction

 This topic contains information about protected pension entitlement, including

Change Date

 December 13, 2005

III.iv.8.C.3.a.  Protection Under 38 CFR 3.951(b)

 Under 38 CFR 3.951(b), do not discontinue a rating of permanent total disability for pension purposes which has been in force for 20 or more years except in the case of fraud.

III.iv.8.C.3.b.  Limits of Protection

 The protection of pension entitlement under 38 CFR 3.951(b) does not extend to special monthly pension.

4.  Protection and Rating Schedule Changes

Introduction

 This topic includes information about protection and rating schedule changes including

Change Date

 April 22, 2015

III.iv.8.C.4.a.  Protection Against Rating Schedule Changes Under 38 CFR 3.951(a)
PL 102-86 states that a rating evaluation cannot be reduced solely because of a change to the rating schedule subsequent to August 13, 1991.  38 CFR 3.951(a)provides that a readjustment to the Schedule for Rating Disabilities shall not be grounds for reduction of a disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability to be evaluated has actually improved.
Reference:  For more information on the preservation of disability evaluations after rating schedule changes, see

III.iv.8.C.4.b.  Protection Against Rating Schedule Changes Under 38 CFR 3.952
38 CFR 3.952 protects rating evaluations under the 1925 rating schedule that were the basis of compensation on April 1, 1946.
Note:  Evaluations in effect when previous changes to the 1945 rating schedule occurred are not protected by PL 102-86.  Therefore, evaluations assigned prior to August 13, 1991 could be reduced solely based on a change to the rating schedule, as provided by 38 CFR 3.952  unless they had been in existence for 20 years or more.

III.iv.8.C.4.c.  Reviewing Evaluations After a Rating Schedule Change
When reviewing a disability evaluation after a change in the rating schedule, determine whether the current evaluation would be continued or decreased under the prior schedule.
Note:  The disability evaluation cannot be reduced unless you can show the Veteran’s condition improved enough to have warranted reduction under the prior schedule.

5.  Other Protection Issues

Change Date

 April 22, 2015

III.iv.8.C.5.a.  Inapplicability of Protection to Hospital Rate Reductions Under 38 CFR 3.552

 Protection under the provisions of either 38 CFR 3.951 or 38 CFR 3.952 of a total rating disability evaluation does not preclude reduction to a hospital rate under 38 CFR 3.552.
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in Chapter 8 Competency, Due Process and Protected Ratings, Part III General Claims Process, Subpart iv General Rating Process
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