38 U.S.C. § 110 — Preservation of disability ratings

Page 40 TITLE 38—VETERANS’ BENEFITS § 110 the United States in World War II and who at time of entrance into such active service were citizens of the United States shall, by virtue of such service, and if otherwise qualified, be enti- tled to the benefits of chapters 31 and 37 of this title in the same manner and to the same extent as veterans of World War II are entitled. No such benefit shall be extended to any person who is not a resident of the United States at the time of filing claim, or to any person who has applied for and received the same or any similar benefit from the government in whose armed forces such person served. (c)(1) Any person who served during World War I or World War II as a member of any armed force of the Government of Czechoslovakia or Poland and participated while so serving in armed conflict with an enemy of the United States and has been a citizen of the United States for at least ten years shall, by virtue of such service, and upon satisfactory evidence thereof, be entitled to hospital and domiciliary care and medical services within the United States under chapter 17 of this title to the same extent as if such service had been performed in the Armed Forces of the United States unless such person is entitled to, or would, upon appli- cation thereof, be entitled to, payment for equivalent care and services under a program es- tablished by the foreign government concerned for persons who served in its armed forces in World War I or World War II. (2) In order to assist the Secretary in making a determination of proper service eligibility under this subsection, each applicant for the benefits thereof shall furnish an authenticated certification from the French Ministry of De- fense or the British War Office as to records in either such Office which clearly indicate mili- tary service of the applicant in the Czecho- slovakian or Polish armed forces and subsequent service in or with the armed forces of France or Great Britain during the period of World War I or World War II. (d)(1) Any person described in paragraph (2) is eligible for the benefits specified in subsection (a) to the same extent and under the same con- ditions (including with respect to applicable rec- iprocity requirements) as a discharged member of the armed forces of a government specified in such subsection who is eligible for such benefits under such subsection. (2) A person described in this paragraph is a person whom the Secretary determines served in Vietnam as a member of the armed forces of the Republic of Korea at any time during the period beginning on January 9, 1962, and ending on May 7, 1975, or such other period as determined ap- propriate by the Secretary for purposes of this subsection. (Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1112; Pub. L. 94–491, Oct. 14, 1976, 90 Stat. 2363; Pub. L. 99–576, title VII, § 701(8), Oct. 28, 1986, 100 Stat. 3291; Pub. L. 102–83, § 4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 118–20, § 2, Nov. 13, 2023, 137 Stat. 108.) Editorial Notes AMENDMENTS 2023—Subsec. (d). Pub. L. 118–20 added subsec. (d). 1991—Subsec. (a)(1). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted ‘‘Secretary’’ for ‘‘Administrator’’ wherever appearing. Pub. L. 102–83, § 4(a)(3), (4), substituted ‘‘Department’’ for ‘‘Veterans’ Administration’’. Subsec. (a)(2). Pub. L. 102–83, § 4(b)(1), (2)(E), sub- stituted ‘‘Secretary’’ for ‘‘Administrator’’. Subsec. (a)(3). Pub. L. 102–83, § 4(a)(3), (4), substituted ‘‘Department’’ for ‘‘Veterans’ Administration’’ in two places. Subsec. (c)(2). Pub. L. 102–83, § 4(b)(1), (2)(E), sub- stituted ‘‘Secretary’’ for ‘‘Administrator’’. 1986—Subsec. (b). Pub. L. 99–576 substituted ‘‘such person’’ for ‘‘he’’. 1976—Subsec. (c). Pub. L. 94–491 added subsec. (c). § 110. Preservation of disability ratings A rating of total disability or permanent total disability which has been made for compensa- tion, 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 ad- ministered 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 rat- ing purposes. (Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1113; Pub. L. 87–825, § 6, Oct. 15, 1962, 76 Stat. 950; Pub. L. 88–445, § 1(a), (b), Aug. 19, 1964, 78 Stat. 464; Pub. L. 91–32, June 23, 1969, 83 Stat. 38; Pub. L. 102–83, § 4(a)(1), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405.) Editorial Notes AMENDMENTS 1991—Pub. L. 102–83 substituted ‘‘Secretary’’ for ‘‘Ad- ministrator’’ and substituted ‘‘administered by the Secretary’’ for ‘‘administered by the Veterans’ Admin- istration’’ in two places. 1969—Pub. L. 91–32 substituted ‘‘evaluation’’ for ‘‘per- centage’’ wherever appearing. 1964—Pub. L. 88–445 substituted ‘‘Preservation of dis- ability ratings’’ for ‘‘Preservation of total disability ratings’’ in section catchline, and inserted sentence di- recting that a disability which has been continuously rated at or above any percentage for twenty or more years for compensation purposes shall not thereafter be rated at less than such percentage, except upon a show- ing that such rating was based on fraud. 1962—Pub. L. 87–825 provided for computation of the period from the date the Administrator determines as the date the status commenced for rating purposes. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1969 AMENDMENT Pub. L. 91–32, June 23, 1969, 83 Stat. 38, provided in part that the amendment made by that section is effec- tive Aug. 19, 1964. EFFECTIVE DATE OF 1962 AMENDMENT Pub. L. 87–825, § 7, Oct. 15, 1962, 76 Stat. 950, provided that: ‘‘This Act [see Tables for classification] shall take effect on the first day of the second calendar month which begins after the date of enactment of this Act [Oct. 15, 1962], but no payments shall be made by Page 41 TITLE 38—VETERANS’ BENEFITS § 111 reason of this Act for any period before such effective date. Payments for any period before such effective date shall be made under prior laws and regulations. The provisions of this Act with respect to reductions and discontinuances shall be applicable only where the event requiring such reduction or discontinuance oc- curs on or after such effective date. If such event oc- curred before such effective date, action shall be taken pursuant to the prior laws and regulations.’’ § 111. Payments or allowances for beneficiary travel (a) Under regulations prescribed by the Presi- dent pursuant to the provisions of this section, the Secretary may pay the actual necessary ex- pense of travel (including lodging and subsist- ence), or in lieu thereof an allowance based upon mileage (at a rate of 41.5 cents per mile), of any person to or from a Department facility or other place in connection with vocational rehabilita- tion, counseling required by the Secretary pur- suant to chapter 34 or 35 of this title, or for the purpose of examination, treatment, or care. Ac- tual necessary expense of travel includes the reasonable costs of airfare if travel by air is the only practical way to reach a Department facil- ity. In addition to the mileage allowance au- thorized by this section, there may be allowed reimbursement for the actual cost of ferry fares, and bridge, road, and tunnel tolls. (b)(1) Except as provided in subsection (c) of this section and notwithstanding subsection (g)(2) of this section or any other provision of law, if, with respect to any fiscal year, the Sec- retary exercises the authority under this section to make any payments, the Secretary shall make the payments provided for in this section to or for the following persons for travel during such fiscal year for examination, treatment, or care for which the person is eligible: (A) A veteran or other person whose travel is in connection with treatment or care for a service-connected disability. (B) A veteran with a service-connected dis- ability rated at 30 percent or more. (C) A veteran receiving pension under sec- tion 1521 of this title. (D) A veteran (i) who is not traveling by air and whose annual income (as determined under section 1503 of this title) does not exceed the maximum annual rate of pension which would be payable to such veteran if such vet- eran were eligible for pension under section 1521 of this title, or (ii) who is determined, under regulations prescribed by the Secretary, to be unable to defray the expenses of the travel for which payment under this section is claimed. (E) Subject to paragraph (3) of this sub- section, a veteran or other person whose travel to or from a Department facility is medically required to be performed by a special mode of travel and who is determined under such regu- lations to be unable to defray the expenses of the travel for which payment under this sec- tion is claimed. (F) A veteran whose travel to a Department facility is incident to a scheduled compensa- tion and pension examination. (G) A veteran with vision impairment, a vet- eran with a spinal cord injury or disorder, or a veteran with double or multiple amputations whose travel is in connection with care pro- vided through a special disabilities rehabilita- tion program of the Department (including programs provided by spinal cord injury cen- ters, blind rehabilitation centers, and pros- thetics rehabilitation centers) if such care is provided— (i) on an in-patient basis; or (ii) during a period in which the Secretary provides the veteran with temporary lodging at a facility of the Department to make such care more accessible to the veteran. (2) The Secretary may make payments pro- vided for in this section to or for any person not covered by paragraph (1) of this subsection for travel by such person for examination, treat- ment, or care. Such payments shall be made in accordance with regulations which the Sec- retary shall prescribe. (3)(A) Except as provided in subparagraph (B) of this paragraph, the Secretary shall not make payments under this section for travel per- formed by a special mode of travel unless (i) the travel by such mode is medically required and is authorized by the Secretary before the travel begins, or (ii) the travel by such mode is in con- nection with a medical emergency of such a na- ture that the delay incident to obtaining au- thorization from the Secretary to use that mode of travel would have been hazardous to the per- son’s life or health. (B) In the case of travel by a person to or from a Department facility by special mode of travel, the Secretary may provide payment under this section to the provider of the transportation by special mode before determining the eligibility of such person for such payment if the Secretary determines that providing such payment is in the best interest of furnishing care and services. Such a payment shall be made subject to subse- quently recovering from such person the amount of the payment if such person is determined to have been ineligible for payment for such travel. (C) In the case of transportation of a person to or from a Department facility by ambulance, the Secretary may pay the provider of the trans- portation the lesser of the actual charge for the transportation or the amount determined by the fee schedule established under section 1834(l) of the Social Security Act (42 U.S.C. 1395m(l)) un- less the Secretary has entered into a contract for that transportation with the provider. (4) In determining for purposes of subsection (a) whether travel by air is the only practical way for a veteran to reach a Department facil- ity, the Secretary shall consider the medical condition of the veteran and any other impedi- ments to the use of ground transportation by the veteran. (c)(1) Except as otherwise provided in this sub- section, the Secretary, in making a payment under this section to or for a person described in subparagraph (A), (B), (C), or (D) of subsection (b)(1) of this section for travel for examination, treatment, or care, shall deduct from the amount otherwise payable an amount equal to $3 for each one-way trip. (2) In the case of a person who is determined by the Secretary to be a person who is required to make six or more one-way trips for needed ex- amination, treatment, or care during the re-