Overview
In This Section |
This section contains the following topics:
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1. Twenty-Year Protection of Compensation Evaluations Under 38 CFR 3.951(b)
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
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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).
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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:
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.
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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).
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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
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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.
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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.
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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
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.
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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
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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
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:
References: For more information on
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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:
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
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.
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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
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:
References: For more information on
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III.iv.8.C.2.b.Determining the 10-Year Period |
Measure the 10-year period
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.
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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:
Reference: For more information on DC change or correction, see
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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.
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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.
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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
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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
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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.
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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. |
Historical_M21-1III_iv_8_SecC_2-3-16.docx | May 15, 2019 | 71 KB |
Change-April-22-2015-Transmittal-Sheet-M21-1III_iv_8_SecC_TS.docx | May 15, 2019 | 43 KB |
4-27-18_Key-Changes_M21-1III_iv_8_SecC.docx | May 15, 2019 | 67 KB |
Historical_M21-1III_iv_8_SecC_5-12-16.docx | May 15, 2019 | 73 KB |
Historical_M21-1III_iv_8_SecC_4-22-15.docx | May 15, 2019 | 72 KB |
2-3-16_Key-Changes_M21-1III_iv_8_SecC.docx | May 15, 2019 | 61 KB |
Transmittal-12_13_05.doc | May 15, 2019 | 52 KB |
Transmittal-M21-1MRIII_iv_8_SecC_TS.docx | May 15, 2019 | 35 KB |
in Chapter 8 Competency, Due Process and Protected Ratings, Part III General Claims Process, Subpart iv General Rating Process
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