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Updated Dec 17, 2021

In This Section
This section contains the following topics:

1.  General Information on Reductions in Disability Evaluations Under 38 CFR 3.105(e)

Introduction
This topic contains information on reductions in disability evaluations, including

Change Date
August 19, 2021

X.ii.4.B.1.a.  Role of the Rating Activity
The rating activity
  • decides whether a reduction in the evaluation of a service-connected (SC) disability under 38 CFR 3.105(e) is in order, and
  • dictates (via a rating decision) the type of award adjustment, if any, the authorization activity must make.
Reference:  For more information on rating procedures for

X.ii.4.B.1.b.  Application of 38 CFR 3.105(e)
38 CFR 3.105(e) and the information in this topic apply only when a reduction or discontinuance of a running award of disability compensation is necessary as a result of
  • a reduction in the evaluation of an SC disability, or
  • loss of entitlement to a total disability rating based on individual unemployability.
Example:  If the rating activity increases the evaluation of one or more SC disabilities or grants service connection (SC) for a new disability, but the combined disability evaluation decreases because of a reduction in the evaluation of another disability, then
  • award the increase from the applicable effective date, and
  • apply the provisions of 38 CFR 3.105(e) to propose reduction of the combined disability evaluation.
Reference:  For more information on notification requirements for reduced disability evaluations, see Stelzel v. Mansfield, 508 F.3d 1345 (2007).

X.ii.4.B.1.c.  Initial Rating Activity Action Proposing a Reduction in a Disability Evaluation
The rating activity prepares a rating decision proposing changes in the evaluation(s) assigned to SC disabilities that will result in a reduction or discontinuance of benefits.  This rating decision
  • cites all the material facts and justification for the proposed action, and
  • provides the reader the proposed
    • evaluation(s) of the disability(ies) in question, and
    • combined evaluation, if applicable.

X.ii.4.B.1.d.  When 38 CFR 3.105(e) Does Not Apply
Use the table below to determine when 38 CFR 3.105(e) does not apply.
If …
Then …
the award is suspended
  • reduce or discontinue the award in accordance with facts found, but not earlier than the date of suspension, and
  • notify the Veteran of the change in the evaluation of the SC disability(ies).
  • the evaluation of one or more SC disabilities is decreased, but
  • the combined disability evaluation remains the same
  • take no further award action, and
  • notify the Veteran of the change in the evaluation of the SC disability(ies).
  • the evaluation of one or more SC disabilities is decreased, but
  • the combined disability evaluation is increased because of an offsetting increase in the evaluation of another SC disability
  • award the increase from the appropriate effective date, and
  • notify the Veteran of the change in the evaluation of the SC disability(ies).
the evaluation of an SC disability is decreased as part of a staged rating
  • reduce the award in accordance with facts found, and
  • notify the Veteran of the change in the evaluation of the SC disability(ies) in the staged rating.
Note:  Tatum v. Shinseki, Vet.App 139, 141 (2010), held that notice under 38 CFR 3.105(e) is only required when there is a reduction in compensation payments currently being made.
Important:  In cases in which the rating schedule provides for a period of convalescence, the reduction may not take effect prior to the end of that period.
Example:  A malignant neoplasm of the genitourinary system evaluated under 38 CFR 4.115b, diagnostic code 7528, must be evaluated as 100-percent disabling for a minimum of six months from the time treatment for the malignancy ceases.
Reference:  For more information on circumstances under which 38 CFR 3.105(e) does not apply to a change in a disability evaluation, see VAOPGCPREC 71-1991.

2.  Authorization Procedures for Reductions in Disability Evaluations Under 38 CFR 3.105(e)

Introduction
This topic contains information on reductions in disability evaluations, including

Change Date
December 17, 2021

X.ii.4.B.2.a.  Initial Notification of the Proposed Adverse Action
Send a notice of proposed adverse action with a rating decision that proposes a reduction in a disability evaluation under 38 CFR 3.105(e) to a Veteran at his/her current address of record.  The notice must
  • meet the requirements set forth in M21-1, Part X, Subpart ii, 3.A, and
  • inform the Veteran of the proposed date of the reduction, which is the last day of the month, 60 days after the date the Department of Veterans Affairs (VA) will notify the Veteran of the final rating decision.
Important:  If the Veteran meets basic eligibility criteria for pension, and the evidence of record suggests pension would be the greater or the only disability benefit to which the Veteran is entitled if VA takes the proposed action,
Notes:
  • The system claims processors use to adjust awards requires entry of the first day of the month following a 60-day period that begins on the date VA notifies the Veteran of the final rating decision as the effective date of an award adjustment under 38 CFR 3.105(e).
  • There is no requirement to include language about minimizing an overpayment since no overpayment will be created by the proposed award adjustment.  However, when system-generated letters automatically include the language about minimizing an overpayment, the letter does not need to be revised to remove it.
References:  For more information on

X.ii.4.B.2.b.  Action to Take if a Veteran Expresses Disagreement Before VA Makes a Final Decision
Follow the instructions in M21-1, Part X, Subpart ii, 3.B.2.b, if a Veteran expresses disagreement with or requests decision review of a proposed action before VA makes a final decision.

X.ii.4.B.2.c.  Action to Take After a Veteran Responds or Fails to Respond to a Notice of Proposed Adverse Action
Use the table below to determine the action to take after a Veteran
  • responds to the notice of proposed adverse action referenced in M21-1, Part X, Subpart ii, 4.B.2.a, or
  • fails to respond to the notice of proposed action within 65 days of the date VA sent it.
If the Veteran …
Then …
  • presents new evidence, or
  • requests a hearing within 30 days of the date of the notice of proposed adverse action
the rating activity will
  • not prepare a final rating decision until the evidence is considered, the hearing is held, or the 60-day due process period elapses (whichever is later), and
  • take final rating action to reduce the evaluation(s) effective the last day of the month following a 60-day period that begins on the date VA will notify the Veteran of the final rating action, if a reduction is still warranted.
Note:  The system claims processors use to adjust awards requires entry of the first day of the month following a 60-day period that begins on the date VA notified the Veteran of the final rating decision as the effective date of an award adjustment under 38 CFR 3.105(e).
submits evidence that establishes a reasonable basis for reexamination
  • request the examination, and
  • wait until the examination report has been received and considered before taking final rating action under M21-1, Part X, Subpart ii, 4.A.1.
  • does not submit additional evidence within 60 days, and
  • does not request a hearing
take final rating action.

X.ii.4.B.2.d.  Withdrawing a Proposal to Reduce a Disability Evaluation Under 38 CFR 3.105(e)
Either the rating activity or a Decision Review Officer may withdraw a proposal to reduce a disability evaluation under 38 CFR 3.105(e).  This is accomplished by preparing a rating decision that confirms and continues the current disability evaluation.

X.ii.4.B.2.e.  Action to Take on Final Rating Decisions Prepared Under 38 CFR 3.105(e)
Promulgate final rating decisions prepared under 38 CFR 3.105(e) by
  • ensuring rating decision data is correctly reflected in the award application, and
  • making any necessary award adjustments.
References:  For more information on promulgating rating decisions in the

X.ii.4.B.2.f.  Providing Notification of a Final Rating Decision
After promulgating a final rating decision,
  • follow the instructions in M21-1, Part VI, Subpart i, 1.B, for preparing and sending a decision notice to the Veteran, even if the proposed action is not taken, and
  • send a copy of the decision notice to the Veterans Readiness and Employment activity for appropriate action if evidence of record indicates the Veteran is receiving training under 38 U.S.C. Chapter 31.

X.ii.4.B.2.g.  Handling Evidence Received After Preparation of a Final Rating Decision but Prior to the Effective Date of Reduction
Use the table below to determine what steps to take if VA receives evidence after making a final rating decision under 38 CFR 3.105(e) but prior to the effective date of a corresponding reduction in benefits.
If the rating activity …
Then …
decides the evidence establishes a need for a reexamination
  • prepare an amended award to continue the rate previously in effect, and
  • maintain end product control for receipt of the examination report.
prepares a new rating decision restoring the prior disability evaluation(s)
  • prepare an amended award to cancel the scheduled reduction
  • use as the effective date the earlier of either the first day of the
    • current month, or
    • month the canceled reduction was scheduled, and
  • annotate the award document New rating [date] cancels prior rating [date].
prepares a new rating decision partially restoring the prior disability evaluation(s)
reduce the award effective the last day of the month, 60 days after the date VA notifies the Veteran of the final rating decision.
Note:  The system claims processors use to adjust awards requires entry of the first day of the month following a 60-day period that begins on the date VA notified the Veteran of the final rating decision as the effective date of an award adjustment under 38 CFR 3.105(e).

X.ii.4.B.2.h.  MRP Adjustment Following a Reduction in Disability Compensation
When VA reduces a Veteran’s disability compensation to reflect a reduced disability evaluation, the Veteran’s retired pay center receives notification (via a computerized data exchange) of the reduction and makes corresponding changes to the Veteran’s military retired pay (MRP) if the Veteran waived all or a portion of his/her MRP to receive disability compensation.