38 U.S.C. § 110
Preservation of disability ratings
A rating of total disability or permanent total disability which has been made for compensation, pension, or insurance purposes under laws administered by the Secretary, and which has been continuously in force for twenty or more years, shall not be reduced thereafter, except upon a showing that such rating was based on fraud. A disability which has been continuously rated at or above evaluation for twenty or more years for compensation purposes under laws administered by the Secretary shall not thereafter be rated at less than such evaluation, except upon a showing that such rating was based on fraud. The mentioned period shall be computed from the date determined by the Secretary as the date on which the status commenced for rating purposes.
Notes of Decisions
Cited in 16
cases (2 in the last 5 years), 1988–2021 · leading case: John M. Ferenc v. R. James Nicholson, 20 Vet. App. 58 (Vet. App. 2006).
John M. Ferenc v. R. James Nicholson, 20 Vet. App. 58 (Vet. App. 2006). “665 (2005) violates 38 U.S.C. §§ 110 , 1159, and 5301. VA’s interpretation of regulations and statutes are reviewed de novo by the Court.”
Colayong v. West, 12 Vet. App. 524 (Vet. App. 1999). “The appellant also argues that, even if his current 60% rating is no longer appropriate, it is preserved under 38 U.S.C. § 110 and 38 C.F.R. § 3.951 (b) (1998) (providing that a disability that has been rated at or above a certain percentage for 20 or more years may not be…”
Segundo Mariano v. Anthony J. Principi, 17 Vet. App. 305 (Vet. App. 2003). “Second, the BVA did not consider whether, based on the period between the March 1973 attribution of the 10% rating to MG IV and the October 1999 apparent change in attribution of that 10% rating to MG I, the appellant has a protected 10% rating for MG IV because that rating has…”
Flores v. Nicholson, 476 F.3d 1379 (Fed. Cir. 2007). “The appellant also argues that her rights under the Equal Protection Clause of the Constitution were violated and that her “award granted by the Secretary is protected by [ 38 U.S.C. § 110 ].” 1 However, the appellant’s “characterization of that question as constitutional in…”
Oscar G. Fugere v. Edward J. Derwinski, Sec'y of Vets. Affairs, 972 F.2d 331 (Fed. Cir. 1992). “However, Fugere could not be rated below twenty percent pursuant to 38 U.S.C.A. § 110 (West 1991) and 38 C.F.”
Kilpatrick v. Principi, 16 Vet. App. 1 (Vet. App. 2002). “The appellant argues in his supplemental reply brief that the GC opinion is unreasonable, and therefore invalid, because it does not give effect to the “service-connected” language of section 1151 as defined in 38 U.”
Kitchens v. Brown, 7 Vet. App. 320 (Vet. App. 1995). “See 38 U.S.C. § 110 ; 38 C.F.R. § 3.951 (b) (1993).”
Daniel J. Murray v. Eric K. Shinseki, 24 Vet. App. 420 (Vet. App. 2011). “951(b) (2010); see also 38 U.S.C. § 110 . 4 .Neither the record nor the Board explains this change in effective date.”
Salgado v. Brown, 4 Vet. App. 316 (Vet. App. 1993). “NEBEKER, Chief Judge: Appellant, Juan Salgado, seeks reversal of a January 24, 1991, Board of Veterans’ Appeals (BVA) decision which held that his 50% rating for post-traumatic brain syndrome with healed fracture of the right parietal bone was not protected under 38 U.S.C.A. §…”
Sugrue v. Derwinski, 808 F. Supp. 946 (E.D.N.Y 1992). “Under 38 U.S.C. § 110 , a disability rating which has been in effect for twenty years can only be reduced upon a showing of fraud.”
Tietjen v. United States Vet.'s Admin., 692 F. Supp. 1106 (D. Ariz. 1988). “See 38 U.S.C. § 110 ; 38 C.F.R. § 3.951 (1987) (persons with rating for over twenty years will not have their ratings reduced except upon a showing of fraud).”
Gifford v. Brown, 6 Vet. App. 269 (Vet. App. 1994). “As there is no exception under either 38 U.S.C. § 110 or § 1159 for “administrative error,” service connection for the right thigh was, therefore, improperly severed, and appellant is entitled to service connection for gunshot wounds to both thighs.”
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