BVA9503350 DOCKET NO. 93-14 264 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active military service from March 1951 to March 1953 and from October 1953 to April 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) of Winston-Salem, North Carolina. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is unable to work due to his physical disabilities and limited educational abilities. The veteran maintains that the overall effect of his disabilities, in light of his age, education and occupational history, is that he is unable to engage in substantially gainful employment. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran is entitled to a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. By rating decision of March 1961, the veteran was assigned a permanent and total disability rating for pension purposes for the residuals of a subarachnoid hemorrhage with left hemiparesis, effective July 22, 1960. 2. The payment of benefits for a permanent and total disability evaluation was discontinued in December 1982 when it was determined that the veteran had excessive income. The effective date of discontinuance was January 1, 1983. No reference or finding of fraud was made at that time. 3. By rating decision of September 1983, it was held that the veteran's disabilities did not preclude him from render him permanently and totally disabled. No reference or finding of fraud was made at that time. 4. The veteran was assigned a permanent and total disability rating in excess of 20 years. CONCLUSION OF LAW The veteran is entitled to a permanent and total disability rating for pension purposes on the basis that such a rating was protected from termination in the absence of fraud. 38 U.S.C.A. §§ 110, 1502, 1521 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.342, 3.951, 4.16 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION A person who submits a claim for benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. After reviewing the evidence on file we conclude that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claim presented is not inherently implausible. Furthermore, we conclude that all facts pertinent to the plausible claim have been developed and that as such, there is no further duty to assist in developing the claim as contemplated by 38 U.S.C.A. § 5107(a). A rating of permanent and total disability for pension purposes which has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud. The 20 year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation. 38 U.S.C.A. § 110 (West 1991); 38 C.F.R. § 3.951 (1994). (While current citations have been used for the sake of convenience, research shows that the same essential language has been in effect since at least the mid-1960's, and was in effect at the time of the later 1983 rating action). The record reveals that the veteran was awarded pension benefits effective July 1960 for the residuals of a subarachnoid hemorrhage. That assignment of a permanent and total disability rating was continued to December 1982. At that time it was discontinued as income information received revealed that the veteran had excessive income for payment of pension benefits. There was no suggestion in the record that the award of pension benefits had been based on fraud. Subsequently, following examination, the combined disability rating assigned for the veteran's various disabilities was reduced and it was found he was not entitled to a permanent and total rating for disability purposes. It was noted that he was not receiving pension benefits at this time, as they had been discontinued effective January 1, 1983, due to excessive income. Again, nothing in the rating action suggested that the award of the permanent and total disability rating had been based on fraud. That decision went unchallenged until the current claim. The veteran now claims to be disabled and entitled to pension benefits. It is the determination of the Board that the veteran's assignment of a permanent and total disability rating for pension purposes was in effect for over 20 years, and that as such it was protected. The record does not show that the grant was based on fraud. Clearly, there was nothing wrong with the discontinuance of payment when he had excessive income, but the assignment of the rating, in view of the governing criteria was protected. On that basis, the claim is granted. ORDER Assignment of a permanent and total disability rating for pension purposes is granted subject to the law and regulations governing the award of monetary benefits. MICHAEL D. LYON Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.