Hanser v. McDonough — 38 C.F.R. § 3.344(c) requires five years or more for rating-reduction protections

Clifford Hanser appealed a rating reduction for radiculopathy ratings that had been in effect for less than five years. The question was whether 38 C.F.R. § 3.344(c) made the heightened procedural protections in § 3.344(a) and (b) available whenever a rating had lasted a “long period,” or whether the parenthetical “(5 years or more)” defined that phrase as a minimum five-year period. The Federal Circuit held that the regulation is unambiguous and that the parenthetical is definitional, not illustrative.

The court reasoned that the text and structure of § 3.344(c) show that the protections of subsections (a) and (b) apply only to ratings unchanged for five years or more. The court rejected arguments that its reading made other language superfluous, and it declined to adopt a more veteran-friendly construction that would turn “long periods” into a case-by-case inquiry. The court also rejected Hanser’s remaining arguments, including a policy-based appeal to § 3.103(a), and affirmed because Hanser’s ratings had not continued unchanged for the required minimum period.

Under 38 C.F.R. § 3.344(c), the procedural protections in § 3.344(a) and (b) apply only to disability ratings that have continued at the same level for five years or more.

For reduction cases, counsel must first verify whether the rating has been in place for at least five years before invoking § 3.344(a) and (b). If the rating is younger than five years, this decision is strong authority that the heightened reduction procedures do not apply.

Hanser is the Federal Circuit’s controlling interpretation of § 3.344(c) and sets the threshold for applying the special procedural protections governing reductions of longstanding ratings. It is especially important in rating-reduction appeals because it turns a disputed regulatory phrase into a firm temporal requirement.

Applying the heightened procedural protections of 38 C.F.R. § 3.344(a) and (b) to a rating that has not continued at the same level for five years or more.

A veteran’s 20% knee rating has been in effect for four years and eight months when VA proposes a reduction. Under Hanser, the veteran cannot demand the protections of § 3.344(a) and (b) based on § 3.344(c).

Use Hanser to defeat arguments that a sub-five-year rating receives § 3.344(a) and (b) safeguards, or to narrow disputes to whether the rating period actually reached five years. It is also useful to frame reduction cases around the exact effective dates of the original rating and proposed reduction.

Boechler, P.C. v. Commissioner of Internal Revenue, Novacor Chems., Inc. v. United States, Goodman v. Shulkin, Meeks v. West