Severance of Service Connection: The § 3.105(d) Standard
What severance is — and is not
A reduction lowers the percentage assigned to a condition VA still recognizes as service connected. Severance removes the service-connected status itself, which usually drops the evaluation to zero and can affect benefits, health care priority, and other programs tied to the rating.
Severance is not available because a later examiner disagrees with the earlier one. Under 38 CFR § 3.105(d), VA must show that the original grant was clearly and unmistakably erroneous — an undebatable error on the record and law that existed at the time. A change in medical opinion is, by definition, debatable. Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Daniels v. Gober, 10 Vet. App. 474 (1997).
The 10-year protection
38 CFR § 3.957 provides that for a disability continuously in effect for 10 or more years will not be severed, except upon a showing that the original grant was based on fraud or that the person did not have the required service or . The 10 years run from the of the grant to the effective date of any severance action. Total ratings that have been in place 20 years carry a separate protection under § 3.951(b).
The procedure VA must follow
- A written proposal setting out the material facts and reasons. 38 CFR § 3.105(d).
- 60 days to present additional evidence; 30 days to request a predetermination hearing.
- Before proposing severance based on a change in the medical picture, VA is expected to have a VA examination unless the evidence makes one unnecessary.
- If finalized, severance is effective the last day of the month following 60 days from the final notice.
What answers a severance proposal
- The original and the evidence VA had in front of it — the question is whether that record allowed only one conclusion.
- Medical evidence that the original diagnosis was correct, or that the current label is the same disease process under a different name.
- Documentation of the continuous connection, if the 10-year bar is in play.
- Identification of any procedural defect in the proposal itself: missing notice, no examination, or reasons that amount to a mere difference of opinion.
Fee rules
An accredited agent or attorney may charge a fee only for work performed after VA issues a decision on the (38 U.S.C. § 5904(c)(1); 38 CFR § 14.636(c)). Fees must be reasonable, disclosed in writing, and filed with VA. Nothing here predicts an outcome in any individual case.
Check the severance proposal against these
| If your record shows this | What it means |
|---|---|
| Service connection has been in place 10 years or more | 38 CFR § 3.957 bars severance except for fraud or a service/discharge finding. Count from the effective date, not the decision date. |
| The proposal cites a new examiner's contrary opinion | A difference of medical opinion is debatable and does not meet the clear-and-unmistakable-error standard in § 3.105(d). |
| No VA examination preceded the proposal | A procedural defect to raise directly; severance based on a changed medical picture normally requires an examination. |
| The proposal calls the original diagnosis 'incorrect' | The question is whether the record before the original adjudicator allowed only one conclusion — not whether today's label differs. |
| Other conditions were granted secondary to this one | Those grants ride on the severed condition and should be addressed in the same response. |
Frequently Asked Questions
References & sources
- 38 CFR § 3.105 — Revision of decisions (reduction and severance procedure) — Code of Federal Regulations
- 38 CFR § 3.343 — Continuance of total disability ratings — Code of Federal Regulations
- 38 CFR § 3.344 — Stabilization of disability evaluations — Code of Federal Regulations
- 38 CFR § 3.951 — Preservation of disability ratings — Code of Federal Regulations
- 38 CFR § 3.957 — Service connection protected after 10 years — Code of Federal Regulations
- 38 CFR § 3.327 — Reexaminations — Code of Federal Regulations
Useful Tools & Topics
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