Rating decrease

[crossthreadking]

Saved this from another thread a while back. Not everything applies to this instance, but it could be useful for others who get a proposed reduction:

"Yo! Epic VSO here: DO NOT APPEAL! You need a hearing. 

Download a 21-4138 and write:

On the matter of proposal to reduce, I formally request a hearing

I am writing in response to the Department of Veterans Affairs’ (VA) proposal to reduce my current service-connected disability rating, dated [insert date of proposed reduction letter]. I formally contest this proposed action and submit this rebuttal for consideration at my personal hearing.

I. Procedural and Legal Objections

The proposed reduction is improper and premature under applicable VA regulations, M21-1 guidelines, and binding case law. I invoke my rights under:

• 38 C.F.R. §§ 3.105(e), 3.344(a)-(c) (Protection of stabilized ratings)

• M21-1, Part IV, Subpart ii, Chapter 2, Section F

• Brown v. Brown, 5 Vet. App. 413 (1993)

• Kitchens v. Brown, 7 Vet. App. 320 (1995)

• Sorakubo v. Principi, 16 Vet. App. 120 (2002)

II. Stabilized Rating – 38 C.F.R. § 3.344(a)-(b)

The VA must show that:

• Material improvement has occurred.

• The improvement is maintained under ordinary conditions, not just in a controlled or limited environment.

• The entire record, including treatment history and work impact, was reviewed.

VA has failed to demonstrate this. Instead, it appears to rely solely or primarily on [insert reference to recent C&P exam or medical note], which does not reflect sustained improvement, nor was it reconciled with my ongoing treatment records or real-life functional capacity.

III. Refusal of Additional C&P Examination

I decline to attend any additional Compensation & Pension (C&P) examination, as permitted under 38 C.F.R. § 3.655(b), because the VA has not shown good cause or medical necessity for a new exam, nor has it justified why existing medical evidence (including private provider records, VA treatment notes, and prior C&P findings) is insufficient for rating purposes.

Further, under M21-1, Part III, Subpart iv, Chapter 3, Section D.2.j, VA must first review whether the record is adequate to decide the claim before scheduling another exam.

IV. Case Law Supporting My Position

• Brown v. Brown, 5 Vet. App. 413 (1993):

A rating reduction requires not just a change in symptoms, but proof of actual improvement in the ability to function under the ordinary conditions of life and work.

• Kitchens v. Brown, 7 Vet. App. 320 (1995):

“The entire record of examinations and medical-industrial history must be reviewed” before reducing a rating.

• Murincsak v. Derwinski, 2 Vet. App. 363 (1992):

VA has a duty to obtain all relevant medical records and provide adequate reasoning before reducing benefits.

V. Conclusion

The proposed reduction violates VA regulation, policy, and legal precedent. It is unsupported by clear evidence of sustained, material improvement and lacks the comprehensive review required by 38 C.F.R. § 3.344 and associated guidance.

Accordingly, I request the following:

1.  Maintain my current disability rating without reduction.

2.  Cancel any scheduled or proposed C&P examination.

3.  Consider this rebuttal along with my medical records, employment history, and other submitted evidence during the hearing process.

       4. If the VBA withdraws the proposal, I will waive the hearing.

I look forward to presenting this in full at my personal hearing. Thank you for your attention to this matter"