The VA may require reexamination of a veteran who is receiving service-connected compensation. The VA may do a typical outpatient C&P exam or require a hospital observation period. The applicable regulation is 38 C.F.R. § 3.327(a). This provision allows for reexamination to ascertain whether there still is a current disability or if the severity of the disability is still the same.
VA reexaminations can occur if there has been a material change in the disability or if the disability is of the type where it is likely to improve. If a Veteran's disability has remained constant over the course of five years or more, the VA will generally not schedule a reexamination.
The VA does not schedule review examinations for all types of service connected VA disabilities. According to 38 C.F.R. § 3.3237(b)(2), no reexamination or review examination will be scheduled if:
- The condition has persisted without material change for 5 or more years
- A veteran is over 55 years of age
- The disability is static (meaning it doesn’t change)
- The minimum rating was assigned
- A combined disability evaluation would not be changed even if a reexamination resulted in the reduction of one or more disabilities.
With this regulation in place, it is possible for the VA to reassess your current VA disability rating within five years of your initial assessment if your disability status is predicted to improve significantly over time. Certain types of conditions can change over time, such as skin diseases that fluctuate, and there are some that never change, such as an amputation or blindness.
How and Why VA Disability Ratings Can Change over Time
The VA frequently conducts reexaminations prior to the five-year mark if they believe a Veteran's service-connected disability has improved significantly. It is possible for the VA to anticipate that a Veteran who has been receiving VA disability payments for a curable ailment would make a partial or complete recovery.
Veterans' disability benefits may be reduced if the VA determines that they have made at least a partial recovery from their service-connected illness or injury. Veteran's Affairs (VA) may be able to decrease a Veteran's disability rating if the Veteran's condition has improved to the point where the Veteran is no longer as seriously impaired.
For many Veterans with service-connected impairments, improvements in their health don't always indicate they've healed — symptoms might fluctuate from time to time. Thus, in assessing the necessity for a review disability evaluation, VA Raters are obliged to use cautious judgment and reference 38 CFR 3.327(b).
According to Veterans Benefits Administration (VBA) policy, further examination requests should only be submitted when absolutely required, and every effort should be taken to reduce the number of situations in which future exams are requested.
The VA 5-Year Rule's Advantages
VA disability payments may be improperly reduced or terminated if the VA incorrectly decides that a Veteran has made a complete recovery from their service-connected disability. Many Veterans are denied full compensation because the VA incorrectly believes that their symptoms have improved. After earning a rating for a condition for five or more years, Veterans are not required to come back for a reexamination under the 5-year rule if the condition has persisted without material improvement. Thus, the five-year rule helps many Veterans.
Unpredictable, Chronic Illnesses and the 5-Year Rule
Unpredictable and chronic illnesses are accounted for under the 5-year rule. For many handicapped Veterans that have a service-connected impairment, they have symptoms that come and go, only to recur later. Thus, the VA is often extra vigilant in the years after the initial grant of a disability claim since many illnesses have unexpected symptoms that might come and go without warning.
It is also possible for service-related issues to deteriorate over time, rather than improve. Years after being originally diagnosed with a disability, many Veterans may begin to experience new and unknown symptoms. Increased disability payments may be available to Veterans who develop new ailments after their initial assessment.
If a service connected condition has worsened, then a veteran should file an increase in VA disability compensation for that condition. If the veteran is unable to work because of the service connected disability, his increased rating claim should also include a claim for TDIU, which is sometimes called VA IU.
The VA's 5-year rule also considers the chance that a Veteran may develop new impairments as a result of their service-connected condition. Many Veterans are eligible for disability compensation from the VA because of secondary illnesses, such as health issues exacerbated by a service-connected disability. An example would be a veteran who is service connected for numerous physical conditions that cause excruciating and chronic pain, and this pain causes or aggravates a veteran’s depression.
A Veteran's disability rating may be increased if the Veteran can show that his secondary condition was aggravated or exacerbated by his original service-connected disability, regardless of how it develops or evolves.
A Guide to Maintaining Your Disability Rating Based on the 5-Year Rule
Make sure you tell the VA that your ailment is still negatively affecting your life so that you don't lose your disability benefits in a re-evaluation. It's critical that you follow these recommendations to keep or improve your VA disability rating:
- Keep going to the doctor for therapy. Maintaining a regular schedule of doctor's appointments, taking prescribed medications, and taking other efforts toward rehabilitation is critical if you have a service-connected impairment.
- Verify to see whether your rating has not been automatically decreased by the VA. When a Veteran's health appears to have improved, the VA may modify their disability rating accordingly. Disabilities that are deemed highly curable and often have a timescale for recovery are often handled like this.
If the VA determines that you no longer require treatment, your rating may be lowered or your benefits may be terminated. However, if you do not feel better and/or healed completely, the VA should continue to pay you for as long as your service-connected disability is hurting your quality of life.
An attorney can assist you in navigating the often-complicated VA appeals procedure to help you win your appeal. You may contact us right away for a consultation.