Overview
In This Section |
This section contains the following topics:
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1. Reductions in Compensation Under 38 CFR 3.105(e)
Introduction |
This topic contains information about reductions under 38 CFR 3.105(e), including
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Change Date |
September 24, 2018
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III.iv.8.D.1.a. Reducing or Terminating Compensation Awards |
Under the provisions of 38 CFR 3.105(e), the rating activity prepares a proposed rating decision to reduce a combined evaluation or employability status, or terminate a running award by reason of a change in the severity of a Veteran’s service-connected (SC) disability.
Note: 38 CFR 3.105(e) is not for application when a Veteran fails to report for a routine future examination. Follow the procedures in M21-1, Part III, Subpart iv, 8.E.1 for reductions for failure to report for a routine future examination under 38 CFR 3.655(c).
References: For more information on the
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III.iv.8.D.1.b. Evidentiary Standard for Reduction Due to Improvement |
In all rating reduction cases, to include those involving an evaluation that has not been in effect for five years or otherwise stabilized, a reduction in the evaluation may only be effectuated if the improvement
Reference: For more information on the evidentiary standard for reduction due to improvement, see Brown v. Brown, 5 Vet.App. 413 (1993).
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III.iv.8.D.1.c. Handling Proof of Substantially Gainful Employment |
If evidence of substantially gainful employment is received but not clearly shown, refer the case to the authorization activity to develop for continued individual unemployability (IU).
If substantially gainful employment is established, take rating action under the provisions of 38 CFR 3.105(e).
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III.iv.8.D.1.d. When to Apply the Provisions of 38 CFR 3.105(e) |
Apply the provisions of 38 CFR 3.105(e) only if a lower evaluation of an SC disability would result in a reduction or discontinuance of compensation payments in a running award.
Note: When payments have previously been suspended but the evidence shows a reduction in compensation is warranted, 38 CFR 3.105(e) is not for application. If payments have been suspended, make a reduction or discontinuance in accordance with the facts found under the authority of 38 CFR 3.500(a), as long asthe date of reduction or discontinuance does not precede the date of last payment.
References: For more information on
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III.iv.8.D.1.e. Reductions in Staged Ratings |
When a reduction is being made as part of a staged rating, compliance with the notice provisions of 38 CFR 3.105(e) is only required if there is a reduction in compensation payments currently being made to the Veteran. See Tatum v. Shinseki, 24 Vet.App. 139, 141 (2010).
Example: The Veteran claims original service connection (SC) for prostate cancer on May 5, 2010. He submits medical evidence revealing he underwent a prostatectomy on February 5, 2010. Additional Department of Veterans Affairs (VA) medical records on August 28, 2010, show the Veteran was free and clear of prostate cancer and that he awakes to void two times per night. VA grants SC for prostate cancer at 100 percent from May 5, 2010, and 10 percent from September 1, 2010. A notice, as required by 38 CFR 3.105(e), was not issued.
Although the diagnostic code (DC) under which the Veteran is rated, 38 CFR 4.115b, DC 7528, indicates any change in evaluation is subject to the provisions of38 CFR 3.105(e), the provisions do not apply in this case since there was not a running award at the time of the rating decision.
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III.iv.8.D.1.f. Reductions Not Affecting Combined Evaluation |
When the reduction of the evaluation of one or more disabilities does not affect the combined disability evaluation, thus not resulting in a change to the benefits the Veteran is receiving, do not apply the provisions of 38 CFR 3.105(e). When the combined disability evaluation is not reduced, apply 38 CFR 3.500(a) for the effective date of the reduction. Example: The Veteran is in receipt of compensation at the 100-percent rate with additional entitlement to special monthly compensation (SMC) based on statutory housebound status for posttraumatic stress disorder evaluated as 100-percent disabling and hepatitis C evaluated as 100 percent. A routine future examination reveals that the hepatitis C warrants a 60-percent disability evaluation, and evidence of sustained improvement is present.
The evaluation of the hepatitis C requires reduction to 60 percent. However, the combined disability evaluation will remain 100 percent and entitlement to SMC continues to be warranted. Therefore, no proposed rating action is required under38 CFR 3.105(e). A rating decision is issued reducing the evaluation of hepatitis C to 60 percent effective the date facts found per 38 CFR 3.500(a), which is the date of the VA examination showing symptoms warranted a reduced evaluation.
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III.iv.8.D.1.g. Concurrent Increases and Reductions |
When both increased and reduced evaluations are assigned for different disabilities, but the net result is a higher or the same combined evaluation, promulgate the rating decision without applying the provisions of 38 CFR 3.105(e).
Note: Apply the provisions of 38 CFR 3.105(e) only if the decreased evaluation will result in a reduction of compensation payments currently being made.
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III.iv.8.D.1.h. Authorizing Reexamination |
Authorize an examination if evidence, medical or otherwise, received prior to expiration of the first 60-day notice period in accordance with 38 CFR 3.105(e), establishes a reasonable basis for reexamination.
Notes:
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III.iv.8.D.1.i. Reviewing New Evidence and Preparing the Final Rating |
Review any new evidence, including a report of reexamination, in the context of the entire record, especially in employability cases. If a reduction is still in order, prepare the final rating decision in accordance with 38 CFR 3.105(e).
In the rating decision, cite the symptoms and the findings demonstrating
Notes:
References: For more information on
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III.iv.8.D.1.j. Determining the Effective Date |
After the notice of proposed adverse action has been sent and the 60-day period following that date has passed, prepare a final rating decision to reflect a lower evaluation.
The lower evaluation is effective the first day of the month following expiration of a 60-day period of time that commences the date the Veteran is notified of the final rating decision.
Reference: For more information on the effective date of reduction, see 38 CFR 3.500(r).
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2. Reductions in Disability Evaluations Under 38 CFR 3.344
Introduction |
This topic contains information about reductions in disability evaluations under 38 CFR 3.344, including
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Change Date |
April 20, 2018
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III.iv.8.D.2.a. Applying the Provisions of 38 CFR 3.344 |
Consider stabilization of a disability evaluation, under the provisions of 38 CFR 3.344, when such disability percentage has been at the same level for five or more years.
If evidence shows improvement, refer to 38 CFR 3.344(a), which describes the evidentiary requirements for reducing a disability evaluation which has been in place for five years or more.
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.
Important: When reviewing a disability evaluation in light of a liberalizing change in the rating schedule, it is not necessary to consider 38 CFR 3.344 if the disability percentage in place prior to the change is continued under the liberalized criteria per VAOPGCPREC 9-1992.
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III.iv.8.D.2.b. Ascertaining Sustained Improvement |
Sustained improvement is considered to have been demonstrated when a preponderance of evidence portrays an abatement or lessening of SC symptoms that has persisted consistently over time, across situation, 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
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III.iv.8.D.2.c. Handling Reductions for Disabilities Which Have Not Stabilized and Are Likely to Improve |
When a disability has not stabilized and is likely to improve, reduction action will be taken without application of the provisions of 38 CFR 3.344(a) and (b) provided that the evidentiary standard for improvement has been met, as discussed in M21-1, Part III, Subpart iv, 8.D.1.b and M21-1, Part III, Subpart iv, 8.D.2.b.
When a disability evaluation has continued for long periods of time—specifically five years or more—but is also subject to reexamination due to likely improvement, apply the provisions of 38 CFR 3.344(a) and (b), which, in part, require that before action is taken to reduce an evaluation
Reference: For more information on scheduling review examinations, see M21-1, Part III, Subpart iv, 3.B.2.
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III.iv.8.D.2.d. Applicability of 38 CFR 3.344 at Lower Than the Current Evaluation |
When considering whether the provisions of 38 CFR 3.344 apply to a potential reduced evaluation, consider the current evaluation as well as any evaluation that has been in effect prior to the current evaluation.
When the current evidence warrants a potential reduction of any evaluation that has been in place for five years or more, including an evaluation which has been incrementally increased for less than five years, apply the provisions of 38 CFR 3.344 before reducing to an evaluation lower than the evaluation which has been in place for five years or more.
Example:
Important: Ensure the medical evidence used to determine that a reduced evaluation is warranted is equally as full and complete as the examination utilized to support the higher evaluations.
References: For more information on
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III.iv.8.D.2.e. Drafting the Rating Decision |
If reduction in disability evaluation is warranted under 38 CFR 3.344(a), then include in the rating decision
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3. Reductions in Disability Ratings Under 38 CFR 3.343
Introduction |
This topic contains information about reductions in disability evaluations under 38 CFR 3.343, including
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Change Date |
June 12, 2015
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III.iv.8.D.3.a. Applying the Provisions of 38 CFR 3.343 |
Under the provisions of 38 CFR 3.343(a), total SC disability ratings, to include IU, will not be reduced, in absence of clear error, without medical evidence showing material improvement in physical or mental condition. This does not include total disability ratings under
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III.iv.8.D.3.c. Drafting the Rating Decision |
Discuss in the rating decision how 38 CFR 3.343 was applied whenever a total disability rating is discontinued.
Cite clear and convincing evidence of actual employability when discontinuing a total rating based on IU.
Reference: For more information on consideration of 38 CFR 3.343(a), see VAOPGCPREC 6-1992.
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4. Reductions Requiring Consideration of IU Under 38 CFR 4.16
Introduction |
This topic contains information about reductions requiring consideration of IU under 38 CFR 4.16, including
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Change Date |
March 22, 2016
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III.iv.8.D.4.a. Applying the Provisions of 38 CFR 4.16 |
Use the table below to determine appropriate rating action and end product (EP) control when a reduction is warranted in a Veteran’s total schedular evaluation to a level meeting the IU requirements of 38 CFR 4.16.
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III.iv.8.D.4.b. Determining the Effective Date for IU |
The effective date for IU must take into account the date of reduction from the schedular 100 percent.
Under Bradley v. Peake, 22 Vet.App. 280 (2008), VA may potentially consider an IU claim for a particular SC disability even when a schedular 100-percent rating is already in effect for another SC disability in order to determine the Veteran’s eligibility for housebound benefits under 38 U.S.C. 1114(s).
Note: The effective date for an IU rating in this case may overlap a period where a 100-percent schedular rating was already established, so long as all other requirements for that separate rating and effective date were met.
Other factors to consider in assigning the IU effective date are
References: For more information on
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5. Changes in Veterans Pension Entitlement Under 38 CFR 3.105(f)
Introduction |
This topic contains information about changes in Veterans pension entitlement under 38 CFR 3.105(f), including
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Change Date |
June 12, 2015
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III.iv.8.D.5.a. Applying the Provisions of 38 CFR 3.105(f) |
Use the table below to apply the provisions of 38 CFR 3.105(f), subject to the protection afforded under 38 CFR 3.951(b).
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III.iv.8.D.5.d. Handling by the Authorization Activity |
Authorization will take action to continue, reduce, or terminate Veterans pension benefits as appropriate based on final rating action.
Authorization will send the beneficiary a notice of proposed adverse action upon receipt of a rating proposing to discontinue entitlement to Veterans pension or SMP. If the final decision affirms the proposed action, this notice must include the citation of 38 CFR 4.17.
Note: If authorization action cannot be completed in time to prospectively implement the effective date shown on the rating decision, the case is returned to the rating activity for a new decision with an amended effective date.
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III.iv.8.D.5.e. Entitlement to Both Veterans Pension and Compensation |
If a Veteran is entitled to both Veterans pension and compensation, and the Veterans pension must be discontinued, then amend the award to authorize compensation.
Prepare the rating under 38 CFR 3.105(f) with a proper evaluation for compensation and termination of Veterans pension entitlement.
References: For more information on
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III.iv.8.D.5.f. Handling Nursing Home Discharge |
Consider entitlement to aid and attendance (A&A) or housebound benefits on a facts-found basis if
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III.iv.8.D.5.h. Preparing the Rating Decision After Nursing Home Discharge |
Include the following statement in the rating decision following nursing home discharge:
The authorization activity previously awarded the beneficiary A&A benefits effective[date], based on his/her status as a nursing home patient.
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6. Reductions or Terminations Requiring Consideration of Continued Entitlement to Chapter 31 Benefits
Introduction |
This topic contains information on the effect of reductions or terminations of SC disability on the receipt of Chapter 31 benefits, including
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Change Date |
June 12, 2015
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III.iv.8.D.6.a. Effects of a Reduction or Severance on Chapter 31 Benefits |
Entitlement to Vocational Rehabilitation and Employment (VR&E) benefits, also referred to as Chapter 31 benefits, may change as the result of a reduction in an SC disability’s evaluation or the severance of SC.
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III.iv.8.D.6.b. Preventing an Overpayment |
Refer to the table below to prevent improper payments and to speed internal communication.
Reference: For more information on VR&E eligibility, see M21-1, Part IX, Subpart i, 1.A.
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Historical_M21-1III_iv_8_SecD_6-12-15.doc | May 15, 2019 | 134 KB |
4-20-18_Key-Changes_M21-1III_iv_8_SecD.docx | May 15, 2019 | 71 KB |
Historical_M21-1III_iv_8_SecD_5-5-17.doc | May 15, 2019 | 165 KB |
5-5-17_Key-Changes_M21-1III_iv_8_SecD.docx | May 15, 2019 | 65 KB |
3-22-16_Key-Changes_M21-1III_iv_8_SecD.docx | May 15, 2019 | 62 KB |
Historical_M21-1III_iv_8_SecD_4-20-18.doc | May 15, 2019 | 175 KB |
Transmittal-12_13_05.doc | May 15, 2019 | 52 KB |
Transmittal-12_13_05.doc | May 15, 2019 | 52 KB |
Transmittal-12_13_05.doc | May 15, 2019 | 52 KB |
Transmittal-12_13_05.doc | May 15, 2019 | 52 KB |
Transmittal-12_13_05.doc | May 15, 2019 | 52 KB |
Transmittal-12_13_05.doc | May 15, 2019 | 52 KB |
Transmittal-12_13_05.doc | May 15, 2019 | 52 KB |
Transmittal-12_13_05.doc | May 12, 2019 | 54 KB |
Transmittal-12_13_05.doc | May 12, 2019 | 54 KB |
Change-June-12-2015-Transmittal-Sheet-M21-1MR_III_iv_8_SecD-TS.docx | May 15, 2019 | 41 KB |
in Chapter 8 Competency, Due Process and Protected Ratings, Part III General Claims Process, Subpart iv General Rating Process
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