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§ 2.8 38 CFR Ch. I (7–1–20 Edition)

a brief summary of each recommenda- PART 3—ADJUDICATION tion for relief and its disposition. Prep- aration of the report shall be the re- Subpart A—Pension, Compensation, and sponsibility of the General Counsel. Dependency and Indemnity Com- (c) The authority to grant the equi- pensation table relief, referred to in paragraphs (a) and (b) of this section, has not been GENERAL delegated and is reserved to the Sec- Sec. retary. Recommendation for the cor- 3.1 Definitions. rection of administrative error and for 3.2 Periods of war. appropriate equitable relief therefrom 3.3 Pension. 3.4 Compensation. will be submitted to the Secretary, 3.5 Dependency and indemnity compensa- through the General Counsel. Such rection. ommendation may be initiated by the 3.6 Duty periods. head of the administration having re- 3.7 Individuals and groups considered to sponsibility for the benefit, or of any have performed active military, naval, or concerned staff office, or by the Chair- air service. man, Board of Veterans Appeals. When 3.10 Dependency and indemnity compensation rate for a surviving spouse. a recommendation for relief under 3.11 Homicide. paragraph (a) or (b) of this section is 3.12 Character of discharge. initiated by the head of a staff office, 3.12a Minimum active-duty service require- or the Chairman, Board of Veterans ment. Appeals, the views of the head of the 3.13 Discharge to change status. administration having responsibility 3.14 Validity of enlistments. for the benefit will be obtained and 3.15 Computation of service. 3.16 Service pension. transmitted with the recommendation 3.17 Disability and death pension; Mexican of the initiating office. border period and later war periods. (Authority: 38 U.S.C. 503, 512) 3.18–3.19 [Reserved] 3.20 Surviving spouse’s benefit for month of [37 FR 22864, Oct. 26, 1972, as amended at 49 veteran’s death. FR 30693, Aug. 1, 1984; 54 FR 34981, Aug. 23, 3.21 Monetary rates. 1989; 68 FR 25504, May 13, 2003] 3.22 DIC benefits for survivors of certain veterans rated totally disabled at time of § 2.8 Delegation of authority to author- death. ize allowances for Department of 3.23 Improved pension rates—Veterans and Veterans Affairs employees who are surviving spouses. notaries public. 3.24 Improved pension rates—Surviving children. (a) Employees occupying or acting in 3.25 Parents’ dependency and indemnity the positions designated in paragraph compensation (DIC)—Method of payment (b) of this section are authorized to computation. designate those employees who are re- 3.26 Section 306 and old-law pension annual quired to serve as notaries public in income limitations. connection with the performance of of- 3.27 Automatic adjustment of benefit rates. ficial business and to pay an allowance 3.28 Automatic adjustment of section 306 and old-law pension income limitations. for the costs therefor not to exceed the 3.29 Rounding. expense required to be incurred by 3.30 Frequency of payment of improved pen- them in order to obtain their commission and parents’ dependency and indem- sion. nity compensation (DIC). 3.31 Commencement of the period of pay- (Authority: 5 U.S.C. 5945) ment. 3.32 Exchange rates for foreign currencies. (b) Designated positions: Deputy Sec- retary, Under Secretary for Benefits, GENERAL Director, Office of Data Management 3.40 Philippine and Insular Forces. and Telecommunications, Chief Med- 3.41 Philippine service. ical Director, General Counsel, Direc- 3.42 Compensation at the full-dollar rate for tors of regional offices, hospitals, certain Filipino veterans residing in the domiciliaries, and centers. United States. 3.43 Burial benefits at the full-dollar rate [35 FR 13771, Aug. 29, 1970, as amended at 49 for certain Filipino veterans residing in FR 30693, Aug. 1, 1984] the United States on the date of death.

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RELATIONSHIP 3.214 Court decisions; unremarried surviving spouses. 3.50 Spouse and surviving spouse. 3.215 Termination of marital relationship or 3.52 Marriages deemed valid. 3.53 Continuous cohabitation. conduct. 3.54 Marriage dates. 3.216 Mandatory disclosure of social secu- 3.55 Reinstatement of benefits eligibility rity numbers. based upon terminated marital relation- 3.217 Submission of statements or informa- ships. tion affecting entitlement to benefits. 3.56 [Reserved] DEPENDENCY, INCOME AND ESTATE 3.57 Child. 3.58 Child adopted out of family. REGULATIONS APPLICABLE TO PROGRAMS IN 3.59 Parent. EFFECT PRIOR TO JANUARY 1, 1979 3.60 Definition of ‘‘living with’’. 3.250 Dependency of parents; compensation. ADMINISTRATIVE 3.251 Income of parents; dependency and indemnity compensation. 3.100 Delegations of authority. 3.252 Annual income; pension; Mexican bor- 3.102 Reasonable doubt. der period and later war periods. 3.103 Procedural due process and other 3.253–3.255 [Reserved] rights. 3.256 Eligibility reporting requirements. 3.104 Binding nature of decisions. 3.257 Children; no surviving spouse entitled. 3.105 Revision of decisions. 3.258–3.259 [Reserved] 3.106 Renouncement. 3.260 Computation of income. 3.107 Awards where not all dependents 3.261 Character of income; exclusions and apply. estates. 3.108 State Department as agent of Depart- 3.262 Evaluation of income. ment of Veterans Affairs. 3.263 Corpus of estate; net worth. 3.109 Time limit. 3.270 Applicability of various dependency, 3.110 Computation of time limit. income and estate regulations. 3.111 [Reserved] 3.112 Fractions of one cent. REGULATIONS APPLICABLE TO THE IMPROVED 3.114 Change of law or Department of Vet- PENSION PROGRAM WHICH BECAME EFFEC- erans Affairs issue. TIVE JANUARY 1, 1979 3.115 Access to financial records. 3.271 Computation of income. CLAIMS 3.272 Exclusions from income. 3.273 Rate computation. 3.150 Forms to be furnished. 3.274 Net worth and VA pension. 3.151 Claims for disability benefits. 3.275 How VA determines the asset amount 3.152 Claims for death benefits. 3.153 Claims filed with Social Security. for pension net worth determinations. 3.154 Injury due to hospital treatment, etc. 3.276 Asset transfers and penalty periods. 3.155 How to file a claim. 3.277 Eligibility reporting requirements. 3.156 New evidence. 3.278 Deductible medical expenses. 3.158 Abandoned claims. 3.279 Statutory exclusions from income or 3.159 Department of Veterans Affairs assist- assets (net worth or corpus of the estate). ance in developing claims. RATINGS AND EVALUATIONS; BASIC 3.160 Status of claims. ENTITLEMENT CONSIDERATIONS 3.161 [Reserved] 3.300 Claims based on the effects of tobacco EVIDENCE REQUIREMENTS products. 3.200 Testimony certified or under oath. 3.301 Line of duty and misconduct. 3.201 Exchange of evidence; Social Security 3.302 Service connection for mental un- and Department of Veterans Affairs. soundness in suicide. 3.202 Evidence from foreign countries. RATINGS AND EVALUATIONS; SERVICE 3.203 Service records as evidence of service CONNECTION and character of discharge. 3.204 Evidence of dependents and age. 3.303 Principles relating to service connec- 3.205 Marriage. tion. 3.206 Divorce. 3.304 Direct service connection; wartime 3.207 Void or annulled marriage. and peacetime. 3.208 Claims based on attained age. 3.305 Direct service connection; peacetime 3.209 Birth. service before January 1, 1947. 3.210 Child’s relationship. 3.306 Aggravation of preservice disability. 3.211 Death. 3.307 Presumptive service connection for 3.212 Unexplained absence for 7 years. chronic, tropical, or prisoner-of-war re- 3.213 Change of status affecting entitle- lated disease, disease associated with ex- ment. posure to certain herbicide agents, or

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disease associated with exposure to con- 3.357 Civil service preference ratings. taminants in the water supply at Camp 3.358 Compensation for disability or death Lejeune; wartime and service on or after from hospitalization, medical or surgical January 1, 1947. treatment, examinations or vocational 3.308 Presumptive service connection; rehabilitation training (§ 3.800). peacetime service before January 1, 1947. 3.359 Determination of service connection 3.309 Disease subject to presumptive service for former members of the Armed Forces connection. of Czechoslovakia or Poland. 3.310 Disabilities that are proximately due 3.360 Service-connected health-care eligi- to, or aggravated by, service-connected bility of certain persons administra- disease or injury. tively discharged under other than hon- 3.311 Claims based on exposure to ionizing orable condition. radiation. 3.361 Benefits under 38 U.S.C. 1151(a) for ad- 3.312 Cause of death. ditional disability or death due to hos- 3.313 Claims based on service in Vietnam. pital care, medical or surgical treat- 3.314 Basic pension determinations. ment, examination, training and reha- 3.315 Basic eligibility determinations; de- bilitation services, or compensated work pendents, loans, education. therapy program. 3.316 Claims based on chronic effects of ex- 3.362 Offsets under 38 U.S.C. 1151(b) of bene- posure to mustard gas and Lewisite. fits awarded under 38 U.S.C. 1151(a). 3.317 Compensation for certain disabilities 3.363 Bar to benefits under 38 U.S.C. 1151. occurring in Persian Gulf veterans. 3.318 Presumptive service connection for RATING CONSIDERATIONS RELATIVE TO amyotrophic lateral sclerosis. SPECIFIC DISEASES 3.319–3.320 [Reserved] 3.370 Pulmonary tuberculosis shown by X- 3.321 General rating considerations. ray in active service. 3.322 Rating of disabilities aggravated by 3.371 Presumptive service connection for tu- service. berculous disease; wartime and service 3.323 Combined ratings. on or after January 1, 1947. 3.324 Multiple noncompensable service-con- 3.372 Initial grant following inactivity of nected disabilities. tuberculosis. 3.325 [Reserved] 3.373 [Reserved] 3.326 Examinations. 3.327 Reexaminations. 3.374 Effect of diagnosis of active tuber- 3.328 Independent medical opinions. culosis. 3.329 [Reserved] 3.375 Determination of inactivity (complete 3.330 Resumption of rating when veteran arrest) in tuberculosis. subsequently reports for Department of 3.376–3.377 [Reserved] Veterans Affairs examination. 3.378 Changes from activity in pulmonary 3.331–3.339 [Reserved] tuberculosis pension cases. 3.340 Total and permanent total ratings and 3.379 Anterior poliomyelitis. unemployability. 3.380 Diseases of allergic etiology. 3.341 Total disability ratings for compensa- 3.381 Service connection of dental condition purposes. tions for treatment purposes. 3.342 Permanent and total disability ratings 3.382 [Reserved] for pension purposes. 3.383 Special consideration for paired or- 3.343 Continuance of total disability rat- gans and extremities. ings. 3.384 Psychosis. 3.344 Stabilization of disability evaluations. 3.385 Disability due to impaired hearing.

RATINGS FOR SPECIAL PURPOSES EFFECTIVE DATES 3.350 Special monthly compensation rat- 3.400 General. ings. 3.401 Veterans. 3.351 Special monthly dependency and in- 3.402 Surviving spouse. demnity compensation, death compensa- 3.403 Children. tion, pension and spouse’s compensation 3.404 Parents. ratings. 3.405 Filipino veterans and their survivors; 3.352 Criteria for determining need for aid benefits at the full-dollar rate. and attendance and ‘‘permanently bed- APPORTIONMENTS ridden.’’ 3.353 Determinations of incompetency and 3.450 General. competency. 3.451 Special apportionments. 3.354 Determinations of insanity. 3.452 Situations when benefits may be ap- 3.355 Testamentary capacity for insurance portioned. purposes. 3.453 Veterans compensation or service pen- 3.356 Conditions which determine perma- sion or retirement pay. nent incapacity for self-support. 3.454 Veterans disability pension.

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3.458 Veteran’s benefits not apportionable. 3.712 Improved pension elections; surviving 3.459 Death compensation. spouses of Spanish-American War vet- 3.460 Death pension. erans. 3.461 Dependency and indemnity compensa- 3.713 Effective dates of improved pension tion. elections. 3.714 Improved pension elections—public as- REDUCTIONS AND DISCONTINUANCES sistance beneficiaries. 3.500 General. 3.715 Radiation Exposure Compensation Act 3.501 Veterans. of 1990. 3.502 Surviving spouses. RETIREMENT 3.503 Children. 3.504 Parents; aid and attendance. 3.750 Entitlement to concurrent receipt of 3.505 Filipino veterans and their survivors; military retired pay and disability com- benefits at the full-dollar rate. pensation. 3.751 Statutory awards; retired service per- HOSPITALIZATION ADJUSTMENTS sonnel. 3.752 [Reserved] 3.551 Reduction because of hospitalization. 3.753 Public Health Service. 3.552 Adjustment of allowance for aid and 3.754 Emergency officers’ retirement pay. attendance. 3.553–3.555 [Reserved] SPECIAL BENEFITS 3.556 Adjustment on discharge or release. 3.557 [Reserved] 3.800 Disability or death due to hospitaliza- 3.558 Resumption and payment of withheld tion, etc. benefits; incompetents with estates that 3.801 Special acts. equaled or exceeded statutory limit. 3.802 Medal of Honor. 3.559 [Reserved] 3.803 Naval pension. 3.804 Special allowance under 38 U.S.C. 1312. ADJUSTMENTS AND RESUMPTIONS 3.805 Loan guaranty for surviving spouses; certification. 3.650 Rate for additional dependent. 3.806 Death gratuity; certification. 3.651 Change in status of dependents. 3.807 Dependents’ educational assistance; 3.652 Periodic certification of continued eli- certification. gibility. 3.808 Automobiles or other conveyances and 3.653 Foreign residence. adaptive equipment; certification. 3.654 Active service pay. 3.809 Specially adapted housing under 38 3.655 Failure to report for Department of U.S.C. 2101(a)(2)(A)(i). Veterans Affairs examination. 3.809a Special home adaptation grants 3.656 Disappearance of veteran. under 38 U.S.C. 2101(b). 3.657 Surviving spouse becomes entitled, or 3.810 Clothing allowance. entitlement terminates. 3.811 Minimum income annuity and gratu- 3.658 Offsets; dependency and indemnity itous annuity. compensation. 3.812 Special allowance payable under sec- 3.659 Two parents in same parental line. tion 156 of Pub. L. 97–377. 3.660 Dependency, income and estate. 3.813 Interim benefits for disability or death 3.661 Eligibility Verification Reports. due to chloracne or porphyria cutanea 3.662–3.664 [Reserved] tarda. 3.665 Incarcerated beneficiaries and fugitive 3.814 Monetary allowance under 38 U.S.C. felons—compensation. chapter 18 for an individual suffering 3.666 Incarcerated beneficiaries and fugitive from spina bifida whose biological father felons—pension. or mother is or was a Vietnam veteran or 3.667 School attendance. a veteran with covered service in Korea. 3.668 [Reserved] 3.815 Monetary allowance under 38 U.S.C. 3.669 Forfeiture. chapter 18 for an individual with disability from covered birth defects whose CONCURRENT BENEFITS AND ELECTIONS biological mother is or was a Vietnam 3.700 General. veteran; identification of covered birth 3.701 Elections of pension or compensation. defects. 3.702 Dependency and indemnity compensa- 3.816 Awards under the Nehmer Court Or- tion. ders for disability or death caused by a 3.703 Two parents in same parental line. condition presumptively associated with 3.704 Elections within class of dependents. herbicide exposure. 3.705–3.706 [Reserved] FORFEITURE 3.707 Dependents’ educational assistance. 3.708 Federal Employees’ Compensation. 3.900 General. 3.710 Civil service annuitants. 3.901 Fraud. 3.711 Improved pension elections. 3.902 Treasonable acts.

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3.903 Subversive activities. 3.1711 Effect of contributions by govern- 3.904 Effect of forfeiture after veteran’s ment, public, or private organizations. death. 3.1712 Effect of forfeiture on payment of 3.905 Declaration of forfeiture or remission burial benefits. of forfeiture. 3.1713 Eligibility based on status before 1958. PROTECTION 3.950 Helpless children; Spanish-American Subpart C [Reserved] and prior wars. 3.951 Preservation of disability ratings. Subpart D—Universal Adjudication Rules 3.952 Protected ratings. That Apply to Benefit Claims Governed 3.953 Pub. L. 85–56 and Pub. L. 85–857. by Part 3 of This Title 3.955–3.956 [Reserved] 3.957 Service connection. GENERAL 3.958 Federal employees’ compensation 3.2100 Scope of Applicability. cases. 3.2130 Will VA accept a signature by mark 3.959 Tuberculosis. or thumbprint? 3.960 Section 306 and old-law pension pro- 3.2400 Applicability of modernized review tection. system. 3.2500 Review of decisions. ACCRUED 3.2501 Supplemental claims. 3.1000 Entitlement under 38 U.S.C. 5121 to 3.2502 Return by higher-level adjudicator or benefits due and unpaid upon death of a remand by the Board of Veterans’ Ap- beneficiary. peals. 3.1001 Hospitalized competent veterans. 3.1002 Political subdivisions of United REVISIONS States. 3.2600 Legacy review of benefit claims deci- 3.1003 Returned and canceled checks. sions. 3.1004–3.1006 [Reserved] 3.2601 Higher-level review. 3.1007 Hospitalized incompetent veterans. 3.1008 Accrued benefits payable to foreign EDITORIAL NOTE: Nomenclature changes to beneficiaries. part 3 appear at 61 FR 7216, Feb. 27, 1996; 62 3.1009 Personal funds of patients. FR 35970, July 3, 1997; 62 FR 47532, Sept. 9, 3.1010 Substitution under 38 U.S.C. 5121A 1997; and 67 FR 46868, July 17, 2002. following death of a claimant. Subpart A—Pension, Compensa- Subpart B—Burial Benefits tion, and Dependency and BURIAL BENEFITS: GENERAL Indemnity Compensation 3.1700 Types of VA burial benefits. 3.1701 Deceased veterans for whom VA may AUTHORITY: 38 U.S.C. 501(a), unless other- provide burial benefits. wise noted. 3.1702 Persons who may receive burial benefits; priority of payments. GENERAL 3.1703 Claims for burial benefits. § 3.1 Definitions. BURIAL BENEFITS: ALLOWANCES & EXPENSES PAID BY VA (a) Armed Forces means the United States Army, Navy, Marine Corps, Air 3.1704 Burial allowance based on service- Force, and Coast Guard, including connected death. 3.1705 Burial allowance based on non-serv- their Reserve components. ice-connected death. (b) Reserve component means the 3.1706 Burial allowance for a veteran who Army, Naval, Marine Corps, Air Force, died while hospitalized by VA. and Coast Guard Reserves and the Na- 3.1707 Plot or interment allowances for bur- tional and Air National Guard of the ial in a State veterans cemetery or other United States. cemetery. (c) Reserves means members of a Re- 3.1708 Burial of a veteran whose remains are serve component of one of the Armed unclaimed. 3.1709 Transportation expenses for burial in Forces. a national cemetery. (d) Veteran means a person who served in the active military, naval, or BURIAL BENEFITS: OTHER air service and who was discharged or 3.1710 Escheat (payment of burial benefits released under conditions other than to an estate with no heirs). dishonorable.

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(1) For compensation and dependency ties resided when the right to benefits and indemnity compensation the term accrued. veteran includes a person who died in active service and whose death was not (Authority: 38 U.S.C. 103(c)) due to willful misconduct. (k) Service-connected means, with re- (2) For death pension the term vet- spect to disability or death, that such eran includes a person who died in ac- disability was incurred or aggravated, tive service under conditions which or that the death resulted from a dis- preclude payment of service-connected ability incurred or aggravated, in line death benefits, provided such person of duty in the active military, naval, or had completed at least 2 years honor- air service. able military, naval or air service, as (l) Nonservice-connected means, with certified by the Secretary concerned. respect to disability or death, that (See §§ 3.3(b)(3)(i) and 3.3(b)(4)(i)) such disability was not incurred or aggravated, or that the death did not re- (Authority: 38 U.S.C. 501) sult from a disability incurred or ag- (e) Veteran of any war means any vet- gravated, in line of duty in the active eran who served in the active military, military, naval, or air service. naval or air service during a period of (m) In line of duty means an injury or war as set forth in § 3.2. disease incurred or aggravated during a (f) Period of war means the periods de- period of active military, naval, or air service unless such injury or disease scribed in § 3.2. was the result of the veteran’s own (g) Secretary concerned means: willful misconduct or, for claims filed (1) The Secretary of the Army, with after October 31, 1990, was a result of respect to matters concerning the his or her abuse of alcohol or drugs. A Army; service department finding that injury, (2) The Secretary of the Navy, with disease or death occurred in line of respect to matters concerning the duty will be binding on the Department Navy or the Marine Corps; of Veterans Affairs unless it is patently (3) The Secretary of the Air Force, inconsistent with the requirements of with respect to matters concerning the laws administered by the Department Air Force; of Veterans Affairs. Requirements as to (4) The Secretary of Homeland Secu- line of duty are not met if at the time rity, with respect to matters con- the injury was suffered or disease concerning the Coast Guard; tracted the veteran was: (5) The Secretary of Health and (1) Avoiding duty by desertion, or Human Services, with respect to mat- was absent without leave which mate- ters concerning the Public Health rially interfered with the performance Service; and of military duty. (6) The Secretary of Commerce, with (2) Confined under a sentence of respect to matters concerning the court-martial involving an unremitted Coast and Geodetic Survey, the Envi- dishonorable discharge. ronmental Science Services Adminis- (3) Confined under sentence of a civil tration, and the National Oceanic and court for a felony as determined under Atmospheric Administration. the laws of the jurisdiction where the (h) Discharge or release includes re- person was convicted by such court. tirement from the active military, naval, or air service. (Authority: 38 U.S.C. 105) (i) State means each of the several NOTE: See § 3.1(y)(2)(iii) for applicability of States, Territories and possessions of in line of duty in determining former prisoner the United States, the District of Co- of war status. lumbia, and Commonwealth of Puerto (n) Willful misconduct means an act Rico. involving conscious wrongdoing or (j) Marriage means a marriage valid known prohibited action. A service de- under the law of the place where the partment finding that injury, disease parties resided at the time of marriage, or death was not due to misconduct or the law of the place where the par- will be binding on the Department of

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Veterans Affairs unless it is patently (r) Date of receipt means the date on inconsistent with the facts and the re- which a claim, information or evidence quirements of laws administered by the was received in the Department of Vet- Department of Veterans Affairs. erans Affairs, except as to specific pro- (1) It involves deliberate or inten- visions for claims or evidence received tional wrongdoing with knowledge of in the State Department (§ 3.108), or in or wanton and reckless disregard of its the Social Security Administration probable consequences. (§§ 3.153, 3.201), or Department of De- (2) Mere technical violation of police fense as to initial claims filed at or regulations or ordinances will not per prior to separation. However, the se constitute willful misconduct. Under Secretary for Benefits may es- (3) Willful misconduct will not be de- tablish, by notice published in the FED- terminative unless it is the proximate ERAL REGISTER, exceptions to this rule, cause of injury, disease or death. (See using factors such as postmark or the §§ 3.301, 3.302.) date the claimant signed the cor- (o) Political subdivision of the United respondence, when he or she deter- States includes the jurisdiction defined mines that a natural or man-made in- as a State in paragraph (i) of this section, and the counties, cities or mu- terference with the normal channels nicipalities of each. through which the Veterans Benefits (p) Claim means a written or elec- Administration ordinarily receives cor- tronic communication requesting a de- respondence has resulted in one or termination of entitlement or evidenc- more Veterans Benefits Administration ing a belief in entitlement, to a specific offices experiencing extended delays in benefit under the laws administered by receipt of claims, information, or evi- the Department of Veterans Affairs dence from claimants served by the af- submitted on an application form pre- fected office or offices to an extent scribed by the Secretary. (See scope of that, if not addressed, would adversely claim, § 3.155(d)(2); complete claim, affect such claimants through no fault § 3.160(a); issues within a claim, of their own. § 3.151(c)). (1) Initial claim. An initial claim is (Authority: 38 U.S.C. 501(a), 512(a), 5110) any complete claim, other than a sup- (s) On the borders thereof means, with plemental claim, for a benefit on a regard to service during the Mexican form prescribed by the Secretary. The border period, the States of Arizona, first initial claim for one or more bene- California, New Mexico, and Texas, and fits received by VA is further defined as an original claim. (See original the nations of Guatemala and British claim, § 3.160(b)). Initial claims include: Honduras. (i) A new claim requesting service connection for a disability or grant of (Authority: 38 U.S.C. 101(30)) a new benefit, and (t) In the waters adjacent thereto (ii) A claim for increase in a dis- means, with regard to service during ability evaluation rating or rate of a the Mexican border period, the waters benefit paid based on a change or wors- (including the islands therein) which ening in condition or circumstance are within 750 nautical miles (863 stat- since the last decision issued by VA for ute miles) of the coast of the mainland the benefit. of Mexico. (2) Supplemental claim. A supplemental claim is any complete claim for (Authority: 38 U.S.C. 101(30) a VA benefit on an application form prescribed by the Secretary where an (u) Section 306 pension means those initial or supplemental claim for the disability and death pension programs same or similar benefit on the same or in effect on December 31, 1978, which similar basis was previously decided. arose out of Pub. L. 86–211; 73 Stat. 432. (See supplemental claim; § 3.2501.) (v) Old-Law pension means the dis- (q) Notice means written notice sent ability and death pension programs to a claimant or payee at his or her that were in effect on June 30, 1960. latest address of record. Also known as protected pension, i.e.,

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protected under section 9(b) of the Vet- (ii) Reason for detainment or intern- eran’s Pension Act of 1959 (Pub. L. 86– ment. The reason for which a service- 211; 73 Stat. 432). person was detained or interned is im- (w) Improved pension means the dis- material in determining POW status, ability and death pension programs be- except that a serviceperson who is de- coming effective January 1, 1979, under tained or interned by a foreign govern- authority of Pub. L. 95–588; 92 Stat. ment for an alleged violation of its 2497. laws is not entitled to be considered a (x) Service pension is the name given former POW on the basis of that period to Spanish-American War pension. It is of detention or internment, unless the referred to as a service pension because charges are a sham intended to legiti- entitlement is based solely on service mize the period of detention or intern- without regard to nonservice-con- ment. nected disability, income and net (3) Central Office approval. The Direc- worth. tor of the Compensation Service, VA Central Office, shall approve all VA re- (Authority: 38 U.S.C. 1512, 1536) gional office determinations estab- (y) Former prisoner of war. The term lishing or denying POW status, with former prisoner of war means a person the exception of those service depart- who, while serving in the active mili- ment determinations accepted under tary, naval or air service, was forcibly paragraph (y)(1) of this section. detained or interned in the line of duty (4) In line of duty. The Department of by an enemy or foreign government, Veterans Affairs shall consider that a the agents of either, or a hostile force. serviceperson was forcibly detained or (1) Decisions based on service depart- interned in line of duty unless the evi- ment findings. The Department of Vet- dence of record discloses that forcible erans Affairs shall accept the findings detainment or internment was the of the appropriate service department proximate result of the serviceperson’s that a person was a prisoner of war own willful misconduct. during a period of war unless a reason- (5) Hostile force. The term hostile force able basis exists for questioning it. means any entity other than an enemy Such findings shall be accepted only or foreign government or the agents of when detention or internment is by an either whose actions are taken to fur- enemy government or its agents. ther or enhance anti-American mili- (2) Other decisions. In all other situa- tary, political or economic objectives tions, including those in which the De- or views, or to attempt to embarrass partment of Veterans Affairs cannot the United States. accept the service department findings, the following factors shall be used to (Authority: 38 U.S.C. 101(32)) determine prisoner of war status: (z) Nursing home means (i) Circumstances of detention or intern- (1) Any extended care facility which ment. To be considered a former pris- is licensed by a State to provide skilled oner of war, a serviceperson must have or intermediate-level nursing care, been forcibly detained or interned (2) A nursing home care unit in a under circumstances comparable to State veterans’ home which is ap- those under which persons generally proved for payment under 38 U.S.C. have been forcibly detained or interned 1742, or by enemy governments during periods (3) A Department of Veterans Affairs of war. Such circumstances include, Nursing Home Care Unit. but are not limited to, physical hard- (aa) Fraud: ships or abuse, psychological hardships (1) As used in 38 U.S.C. 103 and imple- or abuse, malnutrition, and unsanitary menting regulations, fraud means an conditions. Each individual member of intentional misrepresentation of fact, a particular group of detainees or in- or the intentional failure to disclose ternees shall, in the absence of evi- pertinent facts, for the purpose of ob- dence to the contrary, be considered to taining, or assisting an individual to have experienced the same cir- obtain an annulment or divorce, with cumstances as those experienced by the knowledge that the misrepresentation group. or failure to disclose may result in the

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erroneous granting of an annulment or is considered World War I service if the divorce; and veteran served in the active military, naval, or air service after April 5, 1917 (Authority: 38 U.S.C. 501) and before November 12, 1918. (2) As used in 38 U.S.C. 110 and 1159 (d) World War II. December 7, 1941, and implementing regulations, fraud through December 31, 1946, inclusive. If means an intentional misrepresenta- the veteran was in service on December tion of fact, or the intentional failure 31, 1946, continuous service before July to disclose pertinent facts, for the pur- 26, 1947, is considered World War II pose of obtaining or retaining, or as- service. sisting an individual to obtain or re- (e) Korean conflict. June 27, 1950, tain, eligibility for Department of Vet- through January 31, 1955, inclusive. erans Affairs benefits, with knowledge (f) Vietnam era. The period beginning that the misrepresentation or failure on February 28, 1961, and ending on to disclose may result in the erroneous May 7, 1975, inclusive, in the case of a award or retention of such benefits. veteran who served in the Republic of Vietnam during that period. The period (Authority: 38 U.S.C. 501) beginning on August 5, 1964, and ending CROSS REFERENCES: Pension. See § 3.3. on May 7, 1975, inclusive, in all other Compensation. See § 3.4. Dependency and in- cases. demnity compensation. See § 3.5. Preserva- tion of disability ratings. See § 3.951. Service- (Authority: 38 U.S.C. 101(29)) connection. See § 3.957. (g) Future dates. The period beginning [26 FR 1563, Feb. 24, 1961] on the date of any future declaration of EDITORIAL NOTE: For FEDERAL REGISTER ci- war by the Congress and ending on a tations affecting § 3.1, see the List of CFR date prescribed by Presidential procla- Sections Affected, which appears in the mation or concurrent resolution of the Finding Aids section of the printed volume and at www.govinfo.gov. Congress.

§ 3.2 Periods of war. (Authority: 38 U.S.C. 101) This section sets forth the beginning (h) Mexican border period. May 9, 1916, and ending dates of each war period be- through April 5, 1917, in the case of a ginning with the Indian wars. Note veteran who during such period served that the term period of war in reference in Mexico, on the borders thereof, or in to pension entitlement under 38 U.S.C. the waters adjacent thereto. 1521, 1541 and 1542 means all of the war periods listed in this section except the (Authority: 38 U.S.C. 101(30)) Indian wars and the Spanish-American (i) Persian Gulf War. August 2, 1990, War. See § 3.3(a)(3) and (b)(4)(i). through date to be prescribed by Presi- (a) Indian wars. January 1, 1817, dential proclamation or law. through December 31, 1898, inclusive. Service must have been rendered with (Authority: 38 U.S.C. 101(33)) the United States military forces [26 FR 1563, Feb. 24, 1961, as amended at 32 against Indian tribes or nations. FR 13223, Sept. 19, 1967; 36 FR 8445, May 6, (b) Spanish-American War. April 21, 1971; 37 FR 6676, Apr. 1, 1972; 40 FR 27030, 1898, through July 4, 1902, inclusive. If June 26, 1975; 44 FR 45931, Aug. 6, 1979; 56 FR the veteran served with the United 57986, Nov. 15, 1991; 62 FR 35422, July 1, 1997] States military forces engaged in hostilities in the Moro Province, the end- § 3.3 Pension. ing date is July 15, 1903. The Philippine (a) Pension for veterans—(1) Service Insurrection and the Boxer Rebellion pension; Spanish-American War. A ben- are included. efit payable monthly by the Depart- (c) World War I. April 6, 1917, through ment of Veterans Affairs because of November 11, 1918, inclusive. If the vet- service in the Spanish-American War. eran served with the United States Basic entitlement exists if a veteran: military forces in Russia, the ending (i) Had 70 (or 90) days or more active date is April 1, 1920. Service after No- service during the Spanish-American vember 11, 1918 and before July 2, 1921 War; or

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(ii) Was discharged or released from ments for such pension on December 31, such service for a disability adjudged 1978, and files a claim within 1 year of service connected without benefit of that date and also within 1 year after presumptive provisions of law, or at meeting the age or disability require- the time of discharge had such a serv- ments. ice-connected disability, shown by offi- (vi) Meets the income and net worth cial service records, which in medical requirements of 38 U.S.C. 1521 and 1522 judgment would have justified a dis- as in effect on December 31, 1978, and charge for disability. all other provisions of title 38, United States Code, in effect on December 31, (Authority: 38 U.S.C. 1512) 1978, applicable to section 306 pension. (2) Section 306 pension. A benefit pay- NOTE: The pension provisions of title 38 able monthly by the Department of U.S.C., as in effect on December 31, 1978, are Veterans Affairs because of nonservice- available in any VA regional office. connected disability or age. Basic entitlement exists if a veteran: (3) Improved pension; Pub. L. 95–588 (92 (i) Served 90 days or more in either Stat. 2497). A benefit payable by the De- the Mexican border period, World War partment of Veterans Affairs to vet- I, World War II, the Korean conflict, or erans of a period or periods of war be- the Vietnam era, or served an aggre- cause of nonservice-connected dis- gate of 90 days or more in separate pe- ability or age. The qualifying periods riods of service during the same or dur- of war for this benefit are the Mexican ing different war periods, including border period, World War I, World War service during the Spanish-American II, the Korean conflict, the Vietnam War (Pub. L. 87–101, 75 Stat. 218; Pub. era and the Persian Gulf War. Pay- L. 90–77, 81 Stat. 178; Pub. L. 92–198, 85 ments are made monthly unless the Stat. 663); or amount of the annual benefit is less (ii) Served continuously for a period than 4 percent of the maximum annual of 90 consecutive days or more and rate payable to a veteran under 38 such period ended during the Mexican U.S.C. 1521(b), in which case payments border period or World War I, or began may be made less frequently than or ended during World War II, the Ko- monthly. Basic entitlement exists if a rean conflict or the Vietnam era (Pub. veteran: L. 87–101, 75 Stat. 218; Pub. L. 88–664, 78 (i) Served in the active military, Stat. 1094; Pub. L. 90–77, 81 Stat. 178; naval or air service for 90 days or more Pub. L. 91–588, 84 Stat. 1580; Pub. L. 92– during a period of war (38 U.S.C. 198, 85 Stat. 663; Pub. L. 94–169, 89 Stat. 1521(j)); or 1013; Pub. L. 95–204, 91 Stat. 1455); or (ii) Served in the active military, (iii) Was discharged or released from naval or air service during a period of such wartime service, before having war and was discharged or released served 90 days, for a disability adjudged from such service for a disability ad- service connected without the benefit judged service-connected without pre- of presumptive provisions of law, or at sumptive provisions of law, or at time the time of discharge had such a serv- of discharge had such a service-con- ice-connected disability, shown by offi- nected disability, shown by official cial service records, which in medical service records, which in medical judg- judgment would have justified a dis- ment would have justified a discharge charge for disability; and for disability (38 U.S.C. 1521(j)); or (iv) Is permanently and totally dis- (iii) Served in the active military, abled (a) from nonservice-connected naval or air service for a period of 90 disability not due to the veteran’s own consecutive days or more and such pe- willful misconduct or vicious habits, or riod began or ended during a period of (b) by reason of having attained the age war (38 U.S.C. 1521(j)); or of 65 years or by reason of having be- (iv) Served in the active military, come unemployable after age 65; and naval or air service for an aggregate of (v)(a) Is in receipt of section 306 pen- 90 days or more in two or more sepa- sion or (b) has an application for pen- rate periods of service during more sion pending on December 31, 1978, or than one period of war (38 U.S.C. (c) meets the age or disability require- 1521(j)); and

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(v) Meets the net worth requirements tive provisions of law, or at time of dis- under § 3.274 and does not have an an- charge had such a service-connected nual income in excess of the applicable disability, as shown by official service maximum annual pension rate speci- records, which in medical judgment fied in § 3.23; and would have justified a discharge for (vi)(A) Is age 65 or older; or disability. (B) Is permanently and totally disabled from nonservice-connected dis- (Authority: 38 U.S.C. 1536, 1537) ability not due to the veteran’s own (3) Section 306 death pension. A month- willfull misconduct. For purposes of ly benefit payable by the Department this paragraph, a veteran is considered of Veterans Affairs to a surviving permanently and totally disabled if the spouse or child because of a veteran’s veteran is any of the following: nonservice-connected death. Basic en- (1) A patient in a nursing home for titlement exists if: long-term care because of disability; or (i) The veteran (as defined in § 3.1(d) (2) Disabled, as determined by the and (d)(2)) had qualifying service as Commissioner of Social Security for specified in paragraph (a)(2)(i), (ii), or purposes of any benefits administered (iii) of this section; or by the Commissioner; or (ii) The veteran was, at time of (3) Unemployable as a result of dis- death, receiving or entitled to receive ability reasonably certain to continue compensation or retired pay for serv- throughout the life of the person; or (4) Suffering from: ice-connected disability based on war- (i) Any disability which is sufficient time service; and to render it impossible for the average (iii) The surviving spouse or child (A) person to follow a substantially gainful was in receipt of section 306 pension on occupation, but only if it is reasonably December 31, 1978, or (B) had a claim certain that such disability will con- for pension pending on that date, or (C) tinue throughout the life of the person; filed a claim for pension after that date or but within 1 year after the veteran’s (ii) Any disease or disorder deter- death, if the veteran died before Janu- mined by VA to be of such a nature or ary 1, 1979; and extent as to justify a determination (iv) The surviving spouse or child that persons suffering from that dis- meets the income and net worth re- ease or disorder are permanently and quirements of 38 U.S.C. 1541, 1542 or totally disabled. 1543 as in effect on December 31, 1978, and all other provisions of title 38, (Authority: 38 U.S.C. 1502(a), 1513, 1521, 1522) United States Code in effect on Decem- ber 31, 1978, applicable to section 306 (b) Pension for survivors—(1) Indian pension. war death pension. A monthly benefit payable by the Department of Veterans NOTE: The pension provisions of title 38, Affairs to the surviving spouse or child United States Code, as in effect on December of a deceased veteran of an Indian war. 31, 1978, are available in any VA regional office.) Basic entitlement exists if a veteran had qualifying service as specified in 38 (4) Improved death pension, Public Law U.S.C. 1511. Indian war death pension 95–588. A benefit payable by the Depart- rates are set forth in 38 U.S.C. 1534 and ment of Veterans Affairs to a veteran’s 1535. surviving spouse or child because of the (2) Spanish-American War death pen- veteran’s nonservice-connected death. sion. A monthly benefit payable by the Payments are made monthly unless the Department of Veterans Affairs to the amount of the annual benefit is less surviving spouse or child of a deceased than 4 percent of the maximum annual veteran of the Spanish-American War, rate payable to a veteran under 38 if the veteran: U.S.C. 1521(b), in which case payments (i) Had 90 days or more active service may be made less frequently than during the Spanish-American War; or monthly. Basic entitlement exists if: (ii) Was discharged or released from (i) The veteran (as defined in § 3.1(d) such service for a disability service- and (d)(2)) had qualifying service as connected without benefit of presump- specified in paragraph (a)(3)(i), (ii),

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(iii), or (iv) of this section (38 U.S.C. child, and/or dependent parent where a 1541(a)); or veteran is entitled to compensation (ii) The veteran was, at time of based on disability evaluated as 30 per death, receiving or entitled to receive centum or more disabling. compensation or retired pay for a service-connected disability based on serv- (Authority: 38 U.S.C. 1115) ice during a period of war. (The quali- (c) Death compensation. Basic entitle- fying periods of war are specified in ment exists for a surviving spouse, paragraph (a)(3) of this section.) (38 child or children, and dependent parent U.S.C. 1541(a)); and or parents if: (iii) The surviving spouse or child (1) The veteran died before January 1, meets the net worth requirements of 1957; or § 3.274 and has an annual income not in (2) The veteran died on or after May excess of the applicable maximum an- 1, 1957, and before January 1, 1972, if at nual pension rate specified in §§ 3.23 and the time of death a policy of United 3.24. States Government Life Insurance or (Authority: 38 U.S.C. 1541 and 1542) National Service Life Insurance was in effect under waiver of premiums under CROSS REFERENCES: Section 306 pension. 38 U.S.C. 1924 unless the waiver was See § 3.1(u). Improved pension. See § 3.1(w). Improved pension rates. See § 3.23. Improved granted under the first proviso of sec- pension rates; surviving children. See § 3.24. tion 622(a) of the National Service Life Frequency of payment of improved pension. Insurance Act of 1940, and the veteran See § 3.30. Relationship of net worth to pen- died before return to military jurisdic- sion entitlement. See § 3.274. tion or within 120 days thereafter. (See [44 FR 45931, Aug. 6, 1979, as amended at 56 § 3.5(d) as to Public Health Service.) FR 19579, Apr. 29, 1991; 56 FR 22910, May 17, (Authority: 38 U.S.C. 1121, 1141) 1991; 56 FR 25044, June 3, 1991; 56 FR 57986, Nov. 15, 1991; 68 FR 34541, June 10, 2003] [26 FR 1564, Feb. 24, 1961, as amended at 38 FR 21923, Aug. 14, 1973; 39 FR 34529, Sept. 26, § 3.4 Compensation. 1974; 44 FR 22717, Apr. 17, 1979] (a) Compensation. This term means a § 3.5 Dependency and indemnity com- monthly payment made by the Depart- pensation. ment of Veterans Affairs to a veteran (a) Dependency and indemnity com- because of service-connected disability, pensation. This term means a monthly or to a surviving spouse, child, or par- payment made by the Department of ent of a veteran because of the service- Veterans Affairs to a surviving spouse, connected death of the veteran occur- child, or parent: ring before January 1, 1957, or under (1) Because of a service-connected the circumstances outlined in para- death occurring after December 31, graph (c)(2) of this section. If the vet- 1956, or eran was discharged or released from (2) Pursuant to the election of a sur- service, the discharge or release must viving spouse, child, or parent, in the have been under conditions other than case of such a death occurring before dishonorable. January 1, 1957.

(Authority: 38 U.S.C. 101(2), (13)) (Authority: 38 U.S.C. 101 (14)) (b) Disability compensation. (1) Basic (b) Entitlement. Basic entitlement for entitlement for a veteran exists if the a surviving spouse, child or children, veteran is disabled as the result of a and parent or parents of a veteran ex- personal injury or disease (including ists, if: aggravation of a condition existing (1) Death occurred on or after Janu- prior to service) while in active service ary 1, 1957, except in the situation spec- if the injury or the disease was in- ified in § 3.4(c)(2); or curred or aggravated in line of duty. (2) Death occurred prior to January 1, 1957, and the claimant was receiving (Authority: 38 U.S.C. 1110, 1131) or eligible to receive death compensa- (2) An additional amount of com- tion on December 31, 1956 (or, as to a pensation may be payable for a spouse, parent, would have been eligible except

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for income), under laws in effect on § 3.6 Duty periods. that date or who subsequently becomes (a) Active military, naval, and air serv- eligible by reason of a death which oc- ice. This includes active duty, any pe- curred prior to January 1, 1957; or riod of active duty for training during (3) Death occurred on or after May 1, which the individual concerned was 1957, and before January 1, 1972, and the disabled or died from a disease or in- claimant had been ineligible to receive jury incurred or aggravated in line of dependency and indemnity compensa- duty, and any period of inactive duty tion because of the exception in sub- training during which the individual paragraph (1) of this paragraph. In such concerned was disabled or died from an case dependency and indemnity com- injury incurred or aggravated in line of pensation is payable upon election. duty or from an acute myocardial infarction, a cardiac arrest, or a cerebro- (38 U.S.C. 1310, 1316, 1317, Public Law 92–197, vascular accident which occurred dur- 85 Stat. 660) ing such training.

(c) Exclusiveness of remedy. No person (Authority: 38 U.S.C. 101(24)) eligible for dependency and indemnity (b) Active duty. This means: compensation by reason of a death oc- (1) Full-time duty in the Armed curring on or after January 1, 1957, Forces, other than active duty for shall be eligible by reason of such training; death for death pension or compensa- (2) Full-time duty (other than for tion under any other law administered training purposes) as a commissioned by the Department of Veterans Affairs, officer of the Regular or Reserve Corps except that, effective November 2, 1994, of the Public Health Service: a surviving spouse who is receiving de- (i) On or after July 29, 1945, or pendency and indemnity compensation (ii) Before that date under cir- may elect to receive death pension in- cumstances affording entitlement to stead of such compensation. full military benefits, or (iii) At any time, for the purposes of (Authority: 38 U.S.C. 1317) dependency and indemnity compensation. (d) Group life insurance. No depend- (3) Full-time duty as a commissioned ency and indemnity compensation or officer of the Coast and Geodetic Sur- death compensation shall be paid to vey or of its successor agencies, the any surviving spouse, child or parent Environmental Science Services Ad- based on the death of a commissioned ministration and the National Oceanic officer of the Public Health Service, and Atmospheric Administration: the Coast and Geodetic Survey, the En- (i) On or after July 29, 1945, or vironmental Science Services Adminis- (ii) Before that date: tration, or the National Oceanic and (a) While on transfer to one of the Atmospheric Administration occuring Armed Forces, or on or after May 1, 1957, if any amounts (b) While, in time of war or national are payable under the Federal Employ- emergency declared by the President, ees’ Group Life Insurance Act of 1954 assigned to duty on a project for one of the Armed Forces in an area deter- (Pub. L. 598, 83d Cong., as amended) mined by the Secretary of Defense to based on the same death. be of immediate military hazard, or (c) In the Philippine Islands on De- (Authority: Sec. 501(c)(2), Pub. L. 881, 84th cember 7, 1941, and continuously in Cong. (70 Stat. 857), as amended by Sec. 13(u), such islands thereafter, or Pub. L. 85–857; (72 Stat. 1266); Sec. 5, Pub. L. 91–621 (84 Stat. 1863)) (iii) At any time, for the purposes of dependency and indemnity compensa- [29 FR 10396, July 25, 1964, as amended at 35 tion. FR 18661, Dec. 9, 1970; 37 FR 6676, Apr. 1, 1972; (4) Service at any time as a cadet at 39 FR 34529, Sept. 26, 1974; 44 FR 22717, Apr. the United States Military, Air Force, 17, 1979; 58 FR 25561, Apr. 27, 1993; 58 FR 27622, or Coast Guard Academy, or as a mid- May 10, 1993; 60 FR 18355, Apr. 11, 1995; 70 FR shipman at the United States Naval 72220, Dec. 2, 2005; 73 FR 23356, Apr. 30, 2008] Academy;

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(5) Attendance at the preparatory (A) On or after October 1, 1982, with schools of the United States Air Force respect to deaths and disabilities re- Academy, the United States Military sulting from diseases or injuries in- Academy, or the United States Naval curred or aggravated after September Academy for enlisted active-duty mem- 30, 1982, and bers who are reassigned to a pre- (B) October 1, 1983, with respect to paratory school without a release from deaths and disabilities resulting from active duty, and for other individuals diseases or injuries incurred or aggra- who have a commitment to active duty vated before October 1, 1982. in the Armed Forces that would be (ii) Effective on or after October 1, binding upon disenrollment from the 1988, such duty must be prerequisite to preparatory school; the member being commissioned and (6) Authorized travel to or from such must be for a period of at least four duty or service; and continuous weeks. (7) A person discharged or released from a period of active duty, shall be (Authority: 38 U.S.C. 101(22)(D) as amended deemed to have continued on active by Pub. L. 100–456) duty during the period of time immediately following the date of such dis- (5) Attendance at the preparatory charge or release from such duty deter- schools of the United States Air Force mined by the Secretary concerned to Academy, the United States Military have been required for him or her to Academy, or the United States Naval proceed to his or her home by the most Academy by an individual who enters direct route, and, in all instances, until the preparatory school directly from midnight of the date of such discharge the Reserves, National Guard or civil- or release. ian life, unless the individual has a commitment to service on active duty (Authority: 38 U.S.C. 106(c)) which would be binding upon (c) Active duty for training. (1) Full- disenrollment from the preparatory time duty in the Armed Forces per- school. formed by Reserves for training pur- (6) Authorized travel to or from such poses; duty. (2) Full-time duty for training purposes performed as a commissioned of- (Authority: 38 U.S.C. 101(22)) ficer of the Reserve Corps of the Public The term does not include duty per- Health Service: (i) On or after July 29, 1945, or formed as a temporary member of the (ii) Before that date under cir- Coast Guard Reserve. cumstances affording entitlement to (d) Inactive duty training. This means: full military benefits, or (1) Duty (other than full-time duty) (iii) At any time, for the purposes of prescribed for Reserves (including com- dependency and indemnity compensa- missioned officers of the Reserve Corps tion: of the Public Health Service) by the (3) Full-time duty performed by Secretary concerned under 37 U.S.C. 206 members of the National Guard of any or any other provision of law; State, under 32 U.S.C. 316, 502, 503, 504, (2) Special additional duties author- or 505, or the prior corresponding provi- ized for Reserves (including commis- sions of law or full-time duty by such sioned officers of the Reserve Corps of members while participating in the re- the Public Health Service) by an au- enactment of the Battle of First Ma- thority designated by the Secretary nassas in July 1961; concerned and performed by them on a (4) Duty performed by a member of a voluntary basis in connection with the Senior Reserve Officers’ Training Corps prescribed training or maintenance ac- program when ordered to such duty for tivities of the units to which they are the purpose of training or a practice assigned; and cruise under chapter 103 of title 10 (3) Training (other than active duty U.S.C. for training) by a member of, or appli- (i) The requirements of this para- cant for membership (as defined in 5 graph are effective— U.S.C. 8140(g)) in, the Senior Reserve

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Officers’ Training Corps prescribed (iii) A cerebrovascular accident. under chapter 103 of title 10 U.S.C. (Authority: 38 U.S.C. 106(d)) (4) Duty (other than full-time duty) performed by a member of the National [26 FR 1564, Feb. 24, 1961, as amended at 26 Guard of any State, under 32 U.S.C. 316, FR 6767, July 28, 1961; 27 FR 4023, Apr. 27, 502, 503, 504, or 505, or the prior cor- 1962; 29 FR 14171, Oct. 15, 1964; 36 FR 5341, Mar. 20, 1971; 41 FR 26881, June 29, 1976; 49 FR responding provisions of law. The term 47003, Nov. 30, 1984; 54 FR 51200, Dec. 13, 1989; inactive duty training does not include: 55 FR 23931, June 13, 1990; 60 FR 57179, Nov. (i) Work or study performed in con- 14, 1995; 61 FR 11731, Mar. 22, 1996; 66 FR 48560, nection with correspondence courses, Sept. 21, 2001; 67 FR 49585, July 31, 2002] (ii) Attendance at an educational institution in an inactive status, or § 3.7 Individuals and groups considered to have performed active mili- (iii) Duty performed as a temporary tary, naval, or air service. member of the Coast Guard Reserve. The following individuals and groups (Authority: 38 U.S.C. 101(23)) are considered to have performed active military, naval, or air service: (e) Travel status—training duty (dis- (a) Aerial transportation of mail (Pub. ability or death from injury or covered L. 140, 73d Congress). Persons who were disease). Any individual: injured or died while serving under (1) Who, when authorized or required conditions set forth in Pub. L. 140, 73d by competent authority, assumes an Congress. obligation to perform active duty for (b) Aliens. Effective July 28, 1959, a training or inactive duty training; and veteran discharged for alienage during (2) Who is disabled or dies from an in- a period of hostilities unless evidence jury or covered disease incurred while affirmatively shows he or she was dis- proceeding directly to or returning di- charged at his or her own request. A rectly from such active duty for train- veteran who was discharged for ing or inactive duty training shall be alienage after a period of hostilities deemed to have been on active duty for and whose service was honest and training or inactive duty training, as faithful is not barred from benefits if the case may be. The Department of he or she is otherwise entitled. A dis- Veterans Affairs will determine wheth- charge changed prior to January 7, er such individual was so authorized or 1957, to honorable by a board estab- required to perform such duty, and lished under authority of section 301, whether the individual was disabled or Pub. L. 346, 78th Congress, as amended, died from an injury or covered disease or section 207, Pub. L. 601, 79th Con- so incurred. In making such determina- gress, as amended (now 10 U.S.C. 1552 tions, there shall be taken into consid- and 1553), will be considered as evi- eration the hour on which the indi- dence that the discharge was not at the vidual began to proceed or return; the alien’s request. (See § 3.12.) hour on which the individual was scheduled to arrive for, or on which the (Authority: 38 U.S.C. 5303(c)) individual ceased to perform, such (c) Army field clerks. Included as en- duty; the method of travel performed; listed men. the itinerary; the manner in which the (d) Army Nurse Corps, Navy Nurse travel was performed; and the imme- Corps, and female dietetic and physical diate cause of disability or death. therapy personnel. (1) Army and Navy Whenever any claim is filed alleging nurses (female) on active service under that the claimant is entitled to bene- order of the service department. fits by reason of this paragraph, the (2) Dietetic and physical therapy (fe- burden of proof shall be on the claim- male) personnel, excluding students ant. and apprentices, appointed with rel- (3) For purposes of this section, the ative rank on or after December 22, term covered disease means any of the 1942, or commissioned on or after June following: 22, 1944. (i) An acute myocardial infarction. (e) Aviation camps. Students who were (ii) A cardiac arrest. enlisted men during World War I.

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(f) Cadets and midshipmen. See a call from the person’s local draft § 3.6(b)(4). board and before final rejection, or (g) Coast and Geodetic Survey, and its (iii) Been called into Federal service successor agencies, the Environmental as a member of the National Guard, Science Services Administration and the but has not been enrolled for Federal National Oceanic and Atmospheric Ad- service, and ministration. See § 3.6(b)(3). (iv) Suffered injury or disease in line (h) Coast Guard. Active service in of duty while going to, or coming from, Coast Guard on or after January 29, or at such place for final acceptance or 1915, while under jurisdiction of the entry upon active duty, Treasury Department, Navy Depart- is considered to have been on active ment, or the Department of Transpor- duty and therefore to have incurred tation. (See § 3.6 (c) and (d) as to tem- such disability in active service. porary members of the Coast Guard Re- serves.) (2) The injury or disease must be due (i) Contract surgeons. For compensa- to some factor relating to compliance tion and dependency and indemnity with proper orders. Draftees and select- compensation, if the disability or death ees are included when reporting for was the result of disease or injury con- preinduction examination or for final tracted in line of duty during a war pe- induction on active duty. Such persons riod while actually performing the du- are not included for injury or disease ties of assistant surgeon or acting as- suffered during the period of inactive sistant surgeon with any military force duty, or period of waiting, after a final in the field, or in transit or in hospital. physical examination and prior to be- (j) Field clerks, Quartermaster Corps. ginning the trip to report for induc- Included as enlisted men. tion. Members of the National Guard (k) Lighthouse service personnel. are included when reporting to a des- Transferred to the service and jurisdic- ignated rendezvous. tion of War or Navy Departments by (p) Philippine Scouts and others. See Executive order under the Act of Au- § 3.40. gust 29, 1916. Effective July 1, 1939, (q) Public Health Service. See § 3.6 (a) service was consolidated with the and (b). Coast Guard. (r) Reserves. See § 3.6 (a), (b), and (c). (l) Male nurses. Persons who were en- (s) Revenue Cutter Service. While serv- listed men of Medical Corps. ing under direction of Secretary of the (m) National Guard. Members of the Navy in cooperation with the Navy. National Guard of the United States (t) Training camps. Members of train- and Air National Guard of the United ing camps authorized by section 54 of States are included as Reserves. See the National Defense Act, except mem- § 3.6 (c) and (d) as to training duty per- bers of Student Army Training Corps formed by members of a State National Camps at the Presidio of San Fran- Guard and paragraph (o) of this section cisco, Plattsburg, New York, Fort as to disability suffered after being Sheridan, Illinois, Howard University, called into Federal service and before Washington, D.C., Camp Perry, Ohio, enrollment. and Camp Hancock, Georgia, from July (n) Persons heretofore having a pen- 18, 1918, to September 16, 1918. sionable or compensable status. (u) Women’s Army Corps (WAC). Serv- ice on or after July 1, 1943. (Authority: 38 U.S.C. 1152, 1504) (v) Women’s Reserve of Navy, Marine (o) Persons ordered to service. (1) Any Corps, and Coast Guard. Same benefits person who has: as members of the Officers Reserve (i) Applied for enlistment or enroll- Corps or enlisted men of the United ment in the active military, naval, or States Navy, Marine Corps or Coast air service and who is provisionally ac- Guard. cepted and directed, or ordered, to re- (w) Russian Railway Service Corps. port to a place for final acceptance Service during World War I as certified into the service, or by the Secretary of the Army. (ii) Been selected or drafted for such (x) Active military service certified as service, and has reported according to such under section 401 of Pub. L. 95–202.

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Such service if certified by the Sec- ing the Period August 31, 1917 to Janu- retary of Defense as active military ary 1, 1918. service and if a discharge under honor- (18) U.S. Civilians of the American able conditions is issued by the Sec- Field Service (AFS) Who Served Over- retary. The effective dates for an award seas Under U.S. Armies and U.S. Army based upon such service shall be as pro- Groups in World War II during the Pe- vided by § 3.400(z) and 38 U.S.C. 5110, ex- riod December 7, 1941 through May 8, cept that in no event shall such an 1945. award be made effective earlier than (19) U.S. Civilian Employees of Amer- November 23, 1977. Service in the fol- ican Airlines Who Served Overseas as a lowing groups has been certified as ac- Result of American Airlines’ Contract tive military service. with the Air Transport Command Dur- (1) Women’s Air Forces Service Pilots ing the Period December 14, 1941 (WASP). through August 14, 1945. (2) Signal Corps Female Telephone (20) Civilian Crewmen of United Operators Unit of World War I. States Coast and Geodetic Survey (3) Engineer Field Clerks (WWI). (USCGS) Vessels Who Performed Their (4) Women’s Army Auxiliary Corps Service in Areas of Immediate Military (WAAC). Hazard While Conducting Cooperative (5) Quartermaster Corps Female Cler- Operations with and for the United ical Employees serving with the AEF States Armed Forces Within a Time (American Expeditionary Forces) in Frame of December 7, 1941, to August World War I. 15, 1945 on a qualifying USCGS vessel. (6) Civilian Employees of Pacific Qualifying USCGS vessels are the Naval Air Bases Who Actively Partici- Derickson, Explorer, Gilbert, Hilgard, pated in Defense of Wake Island During E. Lester Jones, Lydonia, Patton, Sur- World War II. veyor, Wainwright, Westdahl, Oceanog- (7) Reconstruction Aides and Dieti- rapher, Hydrographer, and Pathfinder. tians in World War I. (21) Honorably Discharged Members of the American Volunteer Group (Fly- (8) Male Civilian Ferry Pilots. ing Tigers) Who Served During the Pe- (9) Wake Island Defenders from riod December 7, 1941 to July 18, 1942. Guam. (22) U.S. Civilian Flight Crew and (10) Civilian Personnel Assigned to Aviation Ground Support Employees of the Secret Intelligence Element of the United Air Lines (UAL), Who Served OSS. Overseas as a Result of UAL’s Contract (11) Guam Combat Patrol. With the Air Transport Command Dur- (12) Quartermaster Corps Keswick ing the Period December 14, 1941, Crew on Corregidor (WWII). through August 14, 1945. (13) U.S. Civilian Volunteers Who Ac- (23) U.S. Civilian Flight Crew and tively Participated in the Defense of Aviation Ground Support Employees of Bataan. Transcontinental and Western Air (14) United States Merchant Seamen (TWA), Inc., Who Served Overseas as a Who Served on Blockships in Support Result of TWA’s Contract with the Air of Operation Mulberry. Transport Command During the Period (15) American Merchant Marine in December 14, 1941, through August 14, Oceangoing Service during the Period 1945. The ‘‘Flight Crew’’ includes purs- of Armed Conflict, December 7, 1941, to ers. August 15, 1945. (24) U.S. Civilian Flight Crew and (16) Civilian Navy IFF Technicians Aviation Ground Support Employees of Who Served in the Combat Areas of the Consolidated Vultree Aircraft Corpora- Pacific during World War II (December tion (Consairway Division) Who Served 7, 1941 to August 15, 1945). As used in Overseas as a Result of a Contract the official name of this group, the ac- With the Air Transport Command Dur- ronym IFF stands for Identification ing the Period December 14, 1941, Friend or Foe. through August 14, 1945. (17) U.S. Civilians of the American (25) U.S. Civilian Flight Crew and Field Service (AFS) Who Served Over- Aviation Ground Support Employees of seas Operationally in World War I dur- Pan American World Airways and Its

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Subsidiaries and Affiliates, Who Served Management, which served overseas Overseas as a Result of Pan American’s with the U.S. Army Air Corps from De- Contract With the Air Transport Com- cember 7, 1941, through August 15, 1945. mand and Naval Air Transport Service During the Period December 14, 1941 (Authority: Sec. 401, Pub. L. 95–202, 91 Stat. through August 14, 1945. 1449) (26) Honorably Discharged Members (y) Alaska Territorial Guard: Members of the American Volunteer Guard, Eri- of the Alaska Territorial Guard during trea Service Command During the Pe- World War II who were honorably dis- riod June 21, 1942 to March 31, 1943. charged from such service as deter- (27) U.S. Civilian Flight Crew and mined by the Secretary of Defense. Aviation Ground Support Employees of Northwest Airlines, Who Served Over- (Authority: 38 U.S.C. 106(f)) seas as a Result of Northwest Airline’s CROSS REFERENCE: Office of Workers’ Com- Contract with the Air Transport Com- pensation Programs. See § 3.708. mand during the Period December 14, [26 FR 1565, Feb. 24, 1961] 1941 through August 14, 1945. (28) U.S. Civilian Female Employees EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 3.7, see the List of CFR of the U.S. Army Nurse Corps While Sections Affected, which appears in the Serving in the Defense of Bataan and Finding Aids section of the printed volume Corregidor During the Period January and at www.govinfo.gov. 2, 1942 to February 3, 1945. (29) U.S. Flight Crew and Aviation § 3.10 Dependency and indemnity com- Ground Support Employees of North- pensation rate for a surviving east Airlines Atlantic Division, Who spouse. Served Overseas as a Result of North- (a) General determination of rate. When east Airlines’ Contract With the Air VA grants a surviving spouse entitle- Transport Command During the Period ment to DIC, VA will determine the December 7, 1941, Through August 14, rate of the benefit it will award. The 1945. rate of the benefit will be the total of (30) U.S. Civilian Flight Crew and the basic monthly rate specified in Aviation Ground Support Employees of paragraph (b) or (d) of this section and Braniff Airways, Who Served Overseas any applicable increases specified in in the North Atlantic or Under the Ju- paragraph (c) or (e) of this section. risdiction of the North Atlantic Wing, (b) Basic monthly rate. Except as pro- Air Transport Command (ATC), as a vided in paragraph (d) of this section, Result of a Contract With the ATC the basic monthly rate of DIC for a sur- During the Period February 26, 1942, viving spouse will be the amount set Through August 14, 1945. forth in 38 U.S.C. 1311(a)(1). (31) The approximately 50 Chamorro (c) Section 1311(a)(2) increase. The and Carolinian former native police- basic monthly rate under paragraph (b) men who received military training in of this section shall be increased by the the Donnal area of central Saipan and amount specified in 38 U.S.C. 1311(a)(2) were placed under the command of Lt. if the veteran, at the time of death, Casino of the 6th Provisional Military was receiving, or was entitled to re- Police Battalion to accompany United ceive, compensation for service-con- States Marines on active, combat-pa- nected disability that was rated by VA trol activity from August 19, 1945, to as totally disabling for a continuous September 2, 1945. period of at least eight years imme- (32) Three scouts/guides, Miguel diately preceding death. Determina- Tenorio, Penedicto Taisacan, and tions of entitlement to this increase Cristino Dela Cruz, who assisted the shall be made in accordance with para- United States Marines in the offensive graph (f) of this section. operations against the Japanese on the (d) Alternative basic monthly rate for Northern Mariana Islands from June death occurring prior to January 1, 1993. 19, 1944, through September 2, 1945. The basic monthly rate of DIC for a (33) The Operational Analysis Group surviving spouse when the death of the of the Office of Scientific Research and veteran occurred prior to January 1, Development, Office of Emergency 1993, will be the amount specified in 38

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U.S.C. 1311(a)(3) corresponding to the graph shall cease beginning with the veteran’s pay grade in service, but only first month commencing after the if such rate is greater than the total of month in which all children of the sur- the basic monthly rate and the section viving spouse have attained the age of 1311(a)(2) increase (if applicable) the 18. surviving spouse is entitled to receive (f) Criteria governing section 1311(a)(2) under paragraphs (b) and (c) of this sec- increase. In determining whether a sur- tion. The Secretary of the concerned viving spouse qualifies for the section service department will certify the vet- 1311(a)(2) increase under paragraph (c) eran’s pay grade and the certification of this section, the following standards will be binding on VA. DIC paid pursu- shall apply. ant to this paragraph may not be in- (1) Marriage requirement. The sur- creased by the section 1311(a)(2) in- viving spouse must have been married crease under paragraph (c) of this sec- to the veteran for the entire eight-year tion. period referenced in paragraph (c) of (e) Additional increases. One or more this section in order to qualify for the of the following increases may be paid section 1311(a)(2) increase. in addition to the basic monthly rate (2) Determination of total disability. As and the section 1311(a)(2) increase. used in paragraph (c) of this section, (1) If the sur- Increase for children. the phrase ‘‘rated by VA as totally dis- viving spouse has one or more children abling’’ includes total disability rat- under the age of 18 of the deceased vet- ings based on unemployability (§ 4.16 of eran (including a child not in the sur- this chapter). viving spouse’s actual or constructive custody, or a child who is in active (3) Definition of ‘‘entitled to receive’’. military service), the monthly DIC rate As used in paragraph (c) of this section, will be increased by the amount set the phrase ‘‘entitled to receive’’ means forth in 38 U.S.C. 1311(b) for each child. that the veteran filed a claim for dis- (2) Increase for regular aid and attend- ability compensation during his or her ance. If the surviving spouse is deter- lifetime and one of the following cir- mined to be in need of regular aid and cumstances is satisfied: attendance under the criteria in § 3.352 (i) The veteran would have received or is a patient in a nursing home, the total disability compensation for the monthly DIC rate will be increased by period specified in paragraph (c) of this the amount set forth in 38 U.S.C. section but for clear and unmistakable 1311(c). error committed by VA in a decision on (3) Increase for housebound status. If a claim filed during the veteran’s life- the surviving spouse does not qualify time; or for the regular aid and attendance al- (ii) Additional evidence submitted to lowance but is housebound under the VA before or after the veteran’s death, criteria in § 3.351(e), the monthly DIC consisting solely of service department rate will be increased by the amount records that existed at the time of a set forth in 38 U.S.C. 1311(d). prior VA decision but were not pre- (4) For a two-year period beginning viously considered by VA, provides a on the date entitlement to dependency basis for reopening a claim finally de- and indemnity compensation com- cided during the veteran’s lifetime and menced, the dependency and indemnity for awarding a total service-connected compensation paid monthly to a sur- disability rating retroactively in ac- viving spouse with one or more chil- cordance with §§ 3.156(c) and 3.400(q)(2) dren below the age of 18 shall be in- of this part for the period specified in creased by the amount set forth in 38 paragraph (c) of this section; or U.S.C. 1311(f), regardless of the number (iii) At the time of death, the veteran of such children. The dependency and had a service-connected disability that indemnity compensation payable under was continuously rated totally dis- this paragraph is in addition to any abling by VA for the period specified in other dependency and indemnity com- paragraph (c) of this section, but was pensation payable. The increase in de- not receiving compensation because: pendency and indemnity compensation (A) VA was paying the compensation of a surviving spouse under this para- to the veteran’s dependents;

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(B) VA was withholding the com- the person was insane at the time of pensation under the authority of 38 committing the offense causing such U.S.C. 5314 to offset an indebtedness of discharge or release or unless other- the veteran; wise specifically provided (38 U.S.C. (C) The veteran had not waived re- 5303(b)). tired or retirement pay in order to re- (c) Benefits are not payable where ceive compensation; the former service member was dis- (D) VA was withholding payments charged or released under one of the under the provisions of 10 U.S.C. following conditions: 1174(h)(2); (1) As a conscientious objector who (E) VA was withholding payments be- refused to perform military duty, wear cause the veteran’s whereabouts were the uniform, or comply with lawful unknown, but the veteran was other- order of competent military authori- wise entitled to continued payments ties. based on a total service-connected dis- (2) By reason of the sentence of a ability rating; or general court-martial. (F) VA was withholding payments (3) Resignation by an officer for the under 38 U.S.C. 5308 but determines good of the service. that benefits were payable under 38 (4) As a deserter. U.S.C. 5309. (5) As an alien during a period of hostilities, where it is affirmatively shown (Authority: 38 U.S.C. 501(a), 1311, 1314, and 1321) that the former service member requested his or her release. See § 3.7(b). [70 FR 72220, Dec. 2, 2005, as amended at 71 (6) By reason of a discharge under FR 44918, Aug. 8, 2006; 77 FR 40525, July 10, other than honorable conditions issued 2012; 80 FR 18117, Apr. 3, 2015] as a result of an absence without offi- § 3.11 Homicide. cial leave (AWOL) for a continuous period of at least 180 days. This bar to Any person who has intentionally benefit entitlement does not apply if and wrongfully caused the death of an- there are compelling circumstances to other person is not entitled to pension, warrant the prolonged unauthorized compensation, or dependency and in- absence. This bar applies to any person demnity compensation or increased awarded an honorable or general dis- pension, compensation, or dependency charge prior to October 8, 1977, under and indemnity compensation by reason one of the programs listed in paragraph of such death. For the purpose of this (h) of this section, and to any person section the term dependency and indem- who prior to October 8, 1977, had not nity compensation includes benefits at otherwise established basic eligibility dependency and indemnity compensa- to receive Department of Veterans Af- tion rates paid under 38 U.S.C. 1318. fairs benefits. The term established [44 FR 22718, Apr. 17, 1979, as amended at 54 basic eligibility to receive Department of FR 31829, Aug. 2, 1989] Veterans Affairs benefits means either a Department of Veterans Affairs deter- § 3.12 Character of discharge. mination that an other than honorable (a) If the former service member did discharge was issued under conditions not die in service, pension, compensa- other than dishonorable, or an up- tion, or dependency and indemnity graded honorable or general discharge compensation is not payable unless the issued prior to October 8, 1977, under period of service on which the claim is criteria other than those prescribed by based was terminated by discharge or one of the programs listed in paragraph release under conditions other than (h) of this section. However, if a person dishonorable. (38 U.S.C. 101(2)). A dis- was discharged or released by reason of charge under honorable conditions is the sentence of a general court-mar- binding on the Department of Veterans tial, only a finding of insanity (para- Affairs as to character of discharge. graph (b) of this section) or a decision (b) A discharge or release from serv- of a board of correction of records es- ice under one of the conditions speci- tablished under 10 U.S.C. 1552 can fied in this section is a bar to the pay- estalish basic eligibility to receive De- ment of benefits unless it is found that partment of Veterans Affairs benefits.

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The following factors will be consid- termined that it was issued because of ered in determining whether there are willful and persistent misconduct. A compelling circumstances to warrant discharge because of a minor offense the prolonged unauthorized absence. will not, however, be considered willful (i) Length and character of service and persistent misconduct if service exclusive of the period of prolonged was otherwise honest, faithful and mer- AWOL. Service exclusive of the period itorious. of prolonged AWOL should generally be (5) Homosexual acts involving aggra- of such quality and length that it can vating circumstances or other factors be characterized as honest, faithful and affecting the performance of duty. Ex- meritorious and of benefit to the Na- amples of homosexual acts involving tion. aggravating circumstances or other (ii) Reasons for going AWOL. Reasons factors affecting the performance of which are entitled to be given consider- duty include child molestation, homo- ation when offered by the claimant in- sexual prostitution, homosexual acts clude family emergencies or obligations, or similar types of obligations or or conduct accompanied by assault or duties owed to third parties. The rea- coercion, and homosexual acts or con- sons for going AWOL should be evalu- duct taking place between service ated in terms of the person’s age, cul- members of disparate rank, grade, or tural background, educational level status when a service member has and judgmental maturity. Consider- taken advantage of his or her superior ation should be given to how the situa- rank, grade, or status. tion appeared to the person himself or (e) An honorable discharge or dis- herself, and not how the adjudicator charge under honorable conditions might have reacted. Hardship or suf- issued through a board for correction fering incurred during overseas service, of records established under authority or as a result of combat wounds of of 10 U.S.C. 1552 is final and conclusive other service-incurred or aggravated on the Department of Veterans Affairs. disability, is to be carefully and sym- The action of the board sets aside any pathetically considered in evaluating prior bar to benefits imposed under the person’s state of mind at the time paragraph (c) or (d) of this section. the prolonged AWOL period began. (f) An honorable or general discharge (iii) A valid legal defense exists for issued prior to October 8, 1977, under the absence which would have pre- authority other than that listed in cluded a conviction for AWOL. Compel- paragraphs (h) (1), (2) and (3) of this ling circumstances could occur as a section by a discharge review board es- matter of law if the absence could not tablished under 10 U.S.C. 1553 set aside validly be charged as, or lead to a con- any bar to benefits imposed under viction of, an offense under the Uni- paragraph (c) or (d) of this section ex- form Code of Military Justice. For pur- cept the bar contained in paragraph poses of this paragraph the defense (c)(2) of this section. must go directly to the substantive (g) An honorable or general discharge issue of absence rather than to procedures, technicalities or formalities. issued on or after October 8, 1977, by a (d) A discharge or release because of discharge review board established one of the offenses specified in this under 10 U.S.C. 1553, sets aside a bar to paragraph is considered to have been benefits imposed under paragraph (d), issued under dishonorable conditions. but not paragraph (c), of this section (1) Acceptance of an undesirable dis- provided that: charge to escape trial by general court- (1) The discharge is upgraded as a re- martial. sult of an individual case review; (2) Mutiny or spying. (2) The discharge is upgraded under (3) An offense involving moral turpi- uniform published standards and proce- tude. This includes, generally, convic- dures that generally apply to all per- tion of a felony. sons administratively discharged or re- (4) Willful and persistent misconduct. leased from active military, naval or This includes a discharge under other air service under conditions other than than honorable conditions, if it is de- honorable; and

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(3) Such standards are consistent contained in paragraph (c)(6) of this with historical standards for deter- section is for application. Accounts in mining honorable service and do not payment status on or after October 8, contain any provision for automati- 1977, shall be terminated at the end of cally granting or denying an upgraded the month in which it is determined discharge. that compelling circumstances do not (h) Unless a discharge review board exist, or April 7, 1978, whichever is the established under 10 U.S.C. 1553 deter- earliest. Accounts in suspense (either mines on an individual case basis that before or after October 8, 1977) shall be the discharge would be upgraded under terminated on the date of last pay- uniform standards meeting the requirements set forth in paragraph (g) of this ment, or April 7, 1978, whichever is the section, an honorable or general dis- earliest. charge awarded under one of the fol- (k) Uncharacterized separations. Where lowing programs does not remove any enlisted personnel are administratively bar to benefits imposed under this sec- separated from service on the basis of tion: proceedings initiated on or after Octo- (1) The President’s directive of Janu- ber 1, 1982, the separation may be clas- ary 19, 1977, implementing Presidential sified as one of the three categories of Proclamation 4313 of September 16, administrative separation that do not 1974; or require characterization of service by (2) The Department of Defense’s spe- the military department concerned. In cial discharge review program effective such cases conditions of discharge will April 5, 1977; or be determined by the VA as follows: (3) Any discharge review program im- (1) Entry level separation. plemented after April 5, 1977, that does Uncharacterized administrative sepa- not apply to all persons administra- rations of this type shall be considered tively discharged or released from ac- under conditions other than dishonor- tive military service under other than able. honorable conditions. (2) Void enlistment or induction. (Authority: 38 U.S.C. 5303 (e)) Uncharacterized administrative separations of this type shall be reviewed (i) No overpayments shall be created based on facts and circumstances sur- as a result of payments made after Oc- rounding separation, with reference to tober 8, 1977, based on an upgraded honorable or general discharge issued the provisions of § 3.14 of this part, to under one of the programs listed in determine whether separation was paragraph (h) of this section which under conditions other than dishonor- would not be awarded under the stand- able. ards set forth in paragraph (g) of this (3) Dropped from the rolls. section. Accounts in payment status on Uncharacterized administrative sepa- or after October 8, 1977, shall be termi- rations of this type shall be reviewed nated the end of the month in which it based on facts and circumstances sur- is determined that the original other rounding separation to determine than honorable discharge was not whether separation was under condi- issued under conditions other than dis- tions other than dishonorable. honorable following notice from the appropriate discharge review board (Authority: 38 U.S.C. 501) that the discharge would not have been CROSS REFERENCES: Validity of enlist- upgraded under the standards set forth ments. See § 3.14. Revision of decisions. See in paragraph (g) of this section, or § 3.105. Effective dates. See § 3.400(g). Min- April 7, 1978, whichever is the earliest. imum active-duty service requirement. See Accounts in suspense (either before or § 3.12a. after October 8, 1977) shall be termi- [28 FR 123, Jan. 4, 1963, as amended at 41 FR nated on the date of last payment or 12656, Mar. 26, 1976; 43 FR 15153, Apr. 11, 1978; April 7, 1978, whichever is the earliest. 45 FR 2318, Jan. 11, 1980; 49 FR 44099, Nov. 2, (j) No overpayment shall be created 1984; 62 FR 14823, Mar. 28, 1997] as a result of payments made after Oc- tober 8, 1977, in cases in which the bar

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§ 3.12a Minimum active-duty service (1) To a person who is discharged or requirement. released under 10 U.S.C. 1171 or 1173 (a) Definitions. (1) The term minimum (early out or hardship discharge). period of active duty means, for the pur- (2) To a person who is discharged or poses of this section, the shorter of the released from active duty for a dis- following periods. ability adjudged service connected (i) Twenty-four months of continuous without presumptive provisions of law, active duty. Non-duty periods that are or who at time of discharge had such a excludable in determining the Depart- service-connected disability, shown by ment of Veterans Affairs benefit enti- official service records, which in med- tlement (e.g., see § 3.15) are not consid- ical judgment would have justified a ered as a break in service for con- discharge for disability. tinuity purposes but are to be sub- (3) To a person with a compensable tracted from total time served. service-connected disability. (ii) The full period for which a person (4) To the provision of a benefit for or was called or ordered to active duty. in connection with a service-connected (2) The term benefit includes a right disability, condition, or death. or privilege but does not include a re- (5) To benefits under chapter 19 of fund of a participant’s contributions title 38, United States Code. under 38 U.S.C. Ch. 32. (e) Dependent or survivor benefits—(1) (b) Effect on Department of Veterans General. If a person is, by reason of this Affairs benefits. Except as provided in section, barred from receiving any ben- paragraph (d) of this section, a person efits under title 38, United States Code listed in paragraph (c) of this section (or under any other law administered who does not complete a minimum pe- by the Department of Veterans Affairs riod of active duty is not eligible for based on a period of active duty, the any benefit under title 38, United person’s dependents or survivors are States Code or under any law adminis- also barred from receiving benefits tered by the Department of Veterans based on the same period of active Affairs based on that period of active duty. service. (2) Exceptions. Paragraph (e)(1) of this (c) Persons included. Except as pro- section does not apply to benefits vided in paragraph (d) of this section, under chapters 19 and 37 of title 38, the provisions of paragraph (b) of this United States Code. (38 U.S.C. 5303A) section apply to the following persons: [47 FR 24549, June 7, 1982] (1) A person who originally enlists (enlisted person only) in a regular com- § 3.13 Discharge to change status. ponent of the Armed Forces after Sep- tember 7, 1980 (a person who signed a (a) A discharge to accept appoint- delayed-entry contract with one of the ment as a commissioned or warrant of- service branches prior to September 8, ficer, or to change from a Reserve or 1980, and under that contract was as- Regular commission to accept a com- signed to a reserve component until en- mission in the other component, or to tering on active duty after September reenlist is a conditional discharge if it 7, 1980, shall be considered to have en- was issued during one of the following listed on the date the person entered periods: on active duty); and (1) World War I; prior to November (2) Any other person (officer as well 11, 1918. As to reenlistments, this sub- as enlisted) who enters on active duty paragraph applies only to Army and after October 16, 1981 and who has not National Guard. No involuntary exten- previously completed a continuous pe- sion or other restrictions existed on riod of active duty of at least 24 Navy enlistments. months or been discharged or released (2) World War II, the Korean conflict from active duty under 10 U.S.C. 1171 or the Vietnam era; prior to the date (early out). the person was eligible for discharge (d) Exclusions. The provisions of para- under the point or length of service graph (b) of this section are not appli- system, or under any other criteria in cable to the following cases: effect.

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(3) Peacetime service; prior to the will be held to be under dishonorable date the person was eligible for an un- conditions. conditional discharge. (b) Statutory prohibition. Where an en- (b) Except as provided in paragraph listment is voided by the service de- (c) of this section, the entire period of partment because the person did not service under the circumstances stated have legal capacity to contract for a in paragraph (a) of this section con- reason other than minority (as in the stitutes one period of service and enti- case of an insane person) or because tlement will be determined by the the enlistment was prohibited by stat- character of the final termination of ute (a deserter or person convicted of a such period of active service except felony), benefits may not be paid based that, for death pension purposes, on that service even though a dis- § 3.3(b)(3) and (4) is controlling as to ability was incurred during such serv- basic entitlement when the conditions ice. An undesirable discharge by reason prescribed therein are met. of the fraudulent enlistment voids the (c) Despite the fact that no uncondi- enlistment from the beginning. tional discharge may have been issued, (c) Misrepresentation of age. Active a person shall be considered to have service which was terminated because been unconditionally discharged or re- of concealment of minority or mis- leased from active military, naval or representation of age is honorable if air service when the following condi- the veteran was released from service tions are met: under conditions other than dishonor- (1) The person served in the active able. Service is valid from the date of military, naval or air service for the entry upon active duty to the date of period of time the person was obligated discharge. to serve at the time of entry into serv- (d) Honorable discharges. Determina- ice; tions as to honorable service will be (2) The person was not discharged or made by the service departments and released from such service at the time the finding shall be binding on the De- of completing that period of obligation partment of Veterans Affairs, but, in due to an intervening enlistment or re- the case of an alien, the effect of the enlistment; and discharge will be governed by § 3.7(b). (3) The person would have been eligi- [26 FR 1567, Feb. 24, 1961, as amended at 27 ble for a discharge or release under FR 4024, Apr. 27, 1962] conditions other than dishonorable at that time except for the intervening § 3.15 Computation of service. enlistment or reenlistment. For nonservice-connected or service- [26 FR 1566, Feb. 24, 1961, as amended at 27 connected benefits, active service is FR 4024, Apr. 27, 1962; 32 FR 13224, Sept. 19, countable exclusive of time spent on an 1967; 43 FR 15154, Apr. 11, 1978; 46 FR 23926, industrial, agricultural, or indefinite Apr. 29, 1981] furlough, time lost on absence without leave (without pay), under arrest (with- § 3.14 Validity of enlistments. out acquittal), in desertion, while un- Service is valid unless the enlistment dergoing sentence of court-martial or a is voided by the service department. period following release from active (a) Enlistment not prohibited by statute. duty under the circumstances outlined Where an enlistment is voided by the in § 3.41. In claims based on Spanish- service department for reasons other American War service, leave author- than those stated in paragraph (b) of ized under General Order No. 130, War this section, service is valid from the Department, is included. date of entry upon active duty to the date of voidance by the service depart- CROSS REFERENCE: Duty periods. See ment. Benefits may not be paid, how- § 3.6(b)(6). ever, unless the discharge is held to [40 FR 16064, Apr. 9, 1975] have been under conditions other than dishonorable. Generally discharge for § 3.16 Service pension. concealment of a physical or mental In computing the 70 or 90 days re- defect except incompetency or insanity quired under § 3.3(a) active service which would have prevented enlistment which began before or extended beyond

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the war period will be included if such spouse is entitled. Otherwise, no pay- service was continuous. Broken periods ment of death pension or dependency of service during a war period may be and indemnity compensation may be added together to meet the require- made for the month in which the vet- ment for length of service. eran died. [41 FR 18299, May 3, 1976, as amended at 44 FR 45932, Aug. 6, 1979] (Authority: 38 U.S.C. 5111(c)) (c)(1) Where a veteran receiving com- § 3.17 Disability and death pension; pensation or pension dies after Decem- Mexican border period and later war periods. ber 31, 1996, the surviving spouse, if not entitled to death compensation, de- In computing the 90 days’ service re- pendency and indemnity compensation, quired for pension entitlement (see or death pension for the month of § 3.3), there will be included active serv- death, shall be entitled to a benefit for ice which began before and extended that month in an amount equal to the into the Mexican border period or amount of compensation or pension the ended during World War I, or began or veteran would have received for that ended during World War II, the Korean month but for his or her death. conflict, the Vietnam era or the Per- (2) A payment issued to a deceased sian Gulf War, if such service was con- veteran as compensation or pension for tinuous. Service during different war periods may be combined with service the month in which death occurred during any other war period to meet shall be treated as payable to that vet- the 90 days’ service requirement. eran’s surviving spouse, if the surviving spouse is not entitled to death (Authority: 38 U.S.C. 1521) compensation, dependency and indem- [37 FR 6676, Apr. 1, 1972, as amended at 44 FR nity compensation or death pension for 45932, Aug. 6, 1979; 56 FR 57986, Nov. 15, 1991] that month and, if negotiated or depos- ited, shall be considered to be the ben- §§ 3.18–3.19 [Reserved] efit to which the surviving spouse is entitled under paragraph (c)(1) of this § 3.20 Surviving spouse’s benefit for section. However, if such payment is in month of veteran’s death. an amount less than the amount of the (a) Where the veteran died on or after benefit under paragraph (c)(1) of this December 1, 1962, and before October 1, section, the unpaid difference shall be 1982, the rate of death pension or de- treated in the same manner as an ac- pendency and indemnity compensation crued benefit under § 3.1000 of this part. otherwise payable for the surviving spouse for the month in which the (Authority: 38 U.S.C. 5310(b)) death occurred shall be not less than [48 FR 34471, July 29, 1983, as amended at 62 the amount of pension or compensation FR 35422, July 1, 1997; 64 FR 30392, June 8, which would have been payable to or 1999] for the veteran for that month but for his or her death. § 3.21 Monetary rates. The rates of compensation, depend- (Authority: 38 U.S.C. 5310) ency and indemnity compensation for (b) Where the veteran dies on or after surviving spouses and children, and October 1, 1982, the surviving spouse section 306 and old-law disability and may be paid death pension or depend- death pension, are published in tabular ency and indemnity compensation for form in appendix B of the Veterans the month in which the veteran died at Benefits Administration Manual M21–1 a rate equal to the amount of com- and are to be given the same force and pensation or pension which would have effect as if published in the regulations been payable to the veteran for that (title 38, Code of Federal Regulations). month had death not occurred, but The maximum annual rates of im- only if such rate is equal to or greater proved pension payable under Pub. L. than the monthly rate of death pension 95–588 (92 Stat. 2497) are set forth in or dependency and indemnity com- §§ 3.23 and 3.24. The monthly rates and pensation to which the surviving annual income limitations applicable

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to parents’ dependency and indemnity viously considered by VA, provides a compensation are set forth in § 3.25. basis for reopening a claim finally decided during the veteran’s lifetime and CROSS REFERENCES: Section 306 pension. See § 3.1(u). Old-law pension. See § 3.1(v). Im- for awarding a total service-connected proved pension. See § 3.1(w). disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) [44 FR 45932, Aug. 6, 1979] of this part for the relevant period specified in paragraph (a)(2) of this sec- § 3.22 DIC benefits for survivors of certain veterans rated totally disabled tion; or at time of death. (3) At the time of death, the veteran had a service-connected disability that (a) Even though a veteran died of was continuously rated totally dis- non-service-connected causes, VA will abling by VA for the period specified in pay death benefits to the surviving paragraph (a)(2), but was not receiving spouse or children in the same manner compensation because: as if the veteran’s death were service- (i) VA was paying the compensation connected, if: to the veteran’s dependents; (1) The veteran’s death was not the (ii) VA was withholding the com- result of his or her own willful mis- pensation under authority of 38 U.S.C. conduct, and 5314 to offset an indebtedness of the (2) At the time of death, the veteran veteran; was receiving, or was entitled to re- (iii) The veteran had not waived receive, compensation for service-con- tired or retirement pay in order to re- nected disability that was: ceive compensation; (i) Rated by VA as totally disabling (iv) VA was withholding payments for a continuous period of at least 10 under the provisions of 10 U.S.C. years immediately preceding death; 1174(h)(2); (ii) Rated by VA as totally disabling (v) VA was withholding payments be- continuously since the veteran’s re- cause the veteran’s whereabouts were lease from active duty and for at least unknown, but the veteran was other- 5 years immediately preceding death; wise entitled to continued payments or based on a total service-connected dis- (iii) Rated by VA as totally disabling ability rating; or for a continuous period of not less than (vi) VA was withholding payments one year immediately preceding death, under 38 U.S.C. 5308 but determines if the veteran was a former prisoner of that benefits were payable under 38 war. U.S.C. 5309. (c) For purposes of this section, (Authority: 38 U.S.C. 1318(b)) ‘‘rated by VA as totally disabling’’ in- (b) For purposes of this section, ‘‘en- cludes total disability ratings based on titled to receive’’ means that the vet- unemployability (§ 4.16 of this chapter). eran filed a claim for disability com- (d) To be entitled to benefits under pensation during his or her lifetime this section, a surviving spouse must and one of the following circumstances have been married to the veteran— is satisfied: (1) For at least 1 year immediately (1) The veteran would have received preceding the date of the veteran’s total disability compensation at the death; or time of death for a service-connected (2) For any period of time if a child disability rated totally disabling for was born of the marriage, or was born the period specified in paragraph (a)(2) to them before the marriage. of this section but for clear and unmistakable error committed by VA in a de- (Authority: 38 U.S.C. 1318) cision on a claim filed during the vet- (e) Effect of judgment or settlement. If a eran’s lifetime; or surviving spouse or child eligible for (2) Additional evidence submitted to benefits under paragraph (a) of this VA before or after the veteran’s death, section receives any money or property consisting solely of service department pursuant to a judicial proceeding based records that existed at the time of a upon, or a settlement or compromise prior VA decision but were not pre- of, any cause of action or other right of

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recovery for damages for the death of § 3.23 Improved pension rates—Vet- the veteran, benefits payable under erans and surviving spouses. paragraph (a) of this section shall not (a) Maximum annual rates of improved be paid for any month following the pension. The maximum annual rates of month in which such money or prop- improved pension for the following cat- erty is received until the amount of egories of beneficiaries shall be the benefits that would otherwise have amounts specified in 38 U.S.C. 1521 and been payable under paragraph (a) of 1542, as increased from time to time this section equals the total of the under 38 U.S.C. 5312. Each time there is amount of money received and the fair an increase under 38 U.S.C. 5312, the ac- market value of the property received. tual rates will be published in the The provisions of this paragraph do not ‘‘Notices’’ section of the FEDERAL REG- apply, however, to any portion of such ISTER. (1) Veterans who are perma- benefits payable for any period pre- nently and totally disabled. ceding the end of the month in which such money or property of value is re- (Authority: 38 U.S.C. 1521(b) or (c)) ceived. (2) Veterans in need of aid and at- (Authority: 38 U.S.C. 501) tendance.

(f) Social security and worker’s com- (Authority: 38 U.S.C. 1521(d)) pensation. Benefits received under social security or worker’s compensation (3) Veterans who are housebound. are not subject to recoupment under (Authority: 38 U.S.C. 1521(e)) paragraph (e) of this section even though such benefits may have been (4) Two veterans married to one an- awarded pursuant to a judicial pro- other; combined rates. ceeding. (g) Beneficiary’s duty to report. Any (Authority: 38 U.S.C. 1521(f)) person entitled to benefits under para- (5) Surviving spouse alone or with a graph (a) of this section shall promptly child or children of the deceased vet- report to the Department of Veterans eran in custody of the surviving Affairs the receipt of any money or spouse. property received pursuant to a judicial proceeding based upon, or a settle- (Authority: 38 U.S.C. 1541(b) or (c)) ment or compromise of, any cause of action or other right of recovery for (6) Surviving spouses in need of aid damages for the death of the veteran. and attendance. The amount to be reported is the total (Authority: 38 U.S.C. 1541(d)) of the amount of money received and the fair market value of property re- (7) Surviving spouses who are house- ceived. Expenses incident to recovery, bound. such as attorney’s fees, may not be deducted from the amount to be reported. (Authority: 38 U.S.C. 1541(e)) (h) Relationship to survivor benefit (b) Reduction for income. The max- plan. For the purpose of 10 U.S.C. imum rates of improved pension in 1448(d) and 1450(c) eligibility for bene- paragraph (a) of this section shall be fits under paragraph (a) of this section reduced by the amount of the count- shall be deemed eligibility for depend- able annual income of the veteran or ency and indemnity compensation surviving spouse. under 38 U.S.C. 1311(a). (Authority: 38 U.S.C. 1318) (Authority: 38 U.S.C. 1521, 1541)

CROSS REFERENCES: Marriage dates. See (c) Mexican border period and World § 3.54. Homicide. See § 3.11. War I veterans. The applicable maximum annual rate payable to a Mexi- [44 FR 22718, Apr. 17, 1979, as amended at 48 FR 41161, Sept. 14, 1983; 53 FR 23235, June 21, can border period or World War I vet- 1988; 54 FR 31829, Aug. 2, 1989; 65 FR 3391, Jan. eran under this section shall be in- 21, 2000; 65 FR 43699, July 14, 2000; 70 FR 72220, creased by the amount specified in 38 Dec. 2, 2005; 77 FR 40526, July 10, 2012] U.S.C. 1521(g), as increased from time

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to time under 38 U.S.C 5312. Each time (other than a child for whom increased there is an increase under 38 U.S.C. pension is not payable under 38 U.S.C. 5312, the actual rate will be published 1543(a)(2)) in the custody of the sur- in the ‘‘Notices’’ section of the FED- viving spouse to the extent that such ERAL REGISTER. child’s income is reasonably available to or for the surviving spouse, unless in (Authority: 38 U.S.C. 1521(g)) the judgment of the Department of (d) Definitions of terms used in this sec- Veterans Affairs to do so would work a tion—(1) Dependent. A veteran’s spouse hardship on the surviving spouse. or child. A veteran’s spouse who resides There is a rebuttable presumption that apart from the veteran and is es- all of such a child’s income is available tranged from the veteran may not be to or for the surviving spouse. considered the veteran’s dependent unless the spouse receives reasonable sup- (Authority: 38 U.S.C. 1541(c), (g)) port contributions from the veteran. (6) Reasonable availability and hard- (Note that under § 3.60 a veteran and ship. For the purposes of paragraphs spouse who reside apart are considered (d)(4) and (d)(5) of this section, a child’s to be living together unless they are income shall be considered ‘‘reasonably estranged.) A child of a veteran not in available’’ when it can be readily ap- custody of the veteran and to whose plied to meet the veteran’s or surviving support the veteran is not reasonably spouse’s expenses necessary for reason- contributing, may not be considered able family maintenance, and ‘‘hard- the veteran’s dependent. ship’’ shall be held to exist when annual expenses necessary for reasonable (Authority: 38 U.S.C. 1521(b)) family maintenance exceed the sum of (2) In need of aid and attendance. As countable annual income plus VA pen- defined in § 3.351(b). sion entitlement. Expenses necessary for (3) Housebound. As defined in reasonable family maintenance include § 3.351(d)(2), (f). This term also includes expenses for basic necessities (such as a veteran who has a disability or dis- food, clothing, shelter, etc.) and other abilities evaluated as 60 percent or expenses, determined on a case-by-case more disabling in addition to a perma- basis, which are necessary to support a nent and totally disabling condition. reasonable quality of life. See § 3.351(d)(1). (Authority: 38 U.S.C. 501) (4) Veteran’s annual income. This term includes the veteran’s annual income, CROSS REFERENCES: Improved pension. See § 3.1(w). Child. See § 3.57(d). Definition of liv- the annual income of the veteran’s de- ing with. See § 3.60. Exclusions from income. pendent spouse, and the annual income See § 3.272. of each child of the veteran (other than a child for whom increased pension is [44 FR 45933, Aug. 6, 1979, as amended at 52 FR 34907, Sept. 14, 1987; 53 FR 23235, June 21, not payable under 38 U.S.C. 1522(b)) in 1988] the veteran’s custody or to whose support the veteran is reasonably contrib- § 3.24 Improved pension rates—Sur- uting (to the extent such child’s in- viving children. come is reasonably available to or for (a) General. The provisions of this the veteran, unless in the judgment of section apply to children of a deceased the Department of Veterans Affairs to veteran not in the custody of a sur- do so would work a hardship on the viving spouse who has basic eligibility veteran.) There is a rebuttable pre- to receive improved pension. Children sumption that all of such a child’s in- in custody of a surviving spouse who come is reasonably available to or for has basic eligibility to receive im- the veteran. proved pension do not have separate entitlement. Basic eligibility to re- (Authority: 38 U.S.C. 1521 (c), (h)) ceive improved pension means that the (5) Surviving spouse’s annual income. surviving spouse is in receipt of im- This term includes the surviving proved pension or could become enti- spouse’s annual income and the annual tled to receive improved pension except income of each child of the veteran for the amount of the surviving

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spouse’s countable annual income or able annual income is equal to or the size of the surviving spouse’s estate greater than the maximum annual pen- (See § 3.274(c)). Under § 3.23(d)(5) the sion rate under paragraph (b) of this countable annual income of a surviving section, or the maximum annual pen- spouse includes the countable annual sion rate under paragraph (b) of this income of each child of the veteran in section times the number of eligible custody of the surviving spouse to the children, whichever is less). extent the child’s income is reasonably (Authority: 38 U.S.C. 1542) available to or for the surviving spouse, unless in the judgment of the CROSS REFERENCES: Child. See § 3.57(d). Ex- Department of Veterans Affairs to do clusions from income. See § 3.272. so would work a hardship on the sur- [44 FR 45933, Aug. 6, 1979, as amended at 52 viving spouse. FR 34907, Sept. 14, 1987; 61 FR 20727, May 8, (b) Child with no personal custodian or 1996] in the custody of an institution. In cases in which there is no personal custo- § 3.25 Parent’s dependency and indemnity compensation (DIC)—Method dian, i.e., there is no person who has of payment computation. the legal right to exercise parental control and responsibility for the Monthly payments of parents’ DIC child’s welfare (See § 3.57(d)), or the shall be computed in accordance with child is in the custody of an institu- the following formulas: tion, pension shall be paid to the child (a) One parent. Except as provided in at the annual rate specified in 38 U.S.C. paragraph (b) of this section, if there is 1542, as increased from time to time only one parent, the monthly rate under 38 U.S.C. 5312, reduced by the specified in 38 U.S.C 1315(b)(1), as in- amount of the child’s countable annual creased from time to time under 38 income. Each time there is an increase U.S.C. 5312, reduced by $.08 for each under 38 U.S.C. 5312, the actual rate dollar of such parent’s countable an- will be published in the ‘‘Notices’’ sec- nual income in excess of $800. No pay- tion of the FEDERAL REGISTER. ments of DIC may be made under this (c) Child in the custody of person le- paragraph, however, if such parent’s gally responsible for support—(1) Single countable annual income exceeds the child. Pension shall be paid to a child amount specified in 38 U.S.C. 1315(b)(3), in the custody of a person legally re- as increased from time to time under 38 sponsible for the child’s support at an U.S.C. 5312, and no payment of DIC to annual rate equal to the difference be- a parent under this paragraph may be tween the rate for a surviving spouse less than $5 a month. and one child under § 3.23(a)(5), and the (b) One parent who has remarried. If sum of the annual income of such child there is only one parent and the parent and the annual income of such person has remarried and is living with the or, the maximum annual pension rate parent’s spouse, DIC shall be paid under paragraph (b) of this section, under paragraph (a) or paragraph (d) of whichever is less. this section, whichever shall result in (2) More than one child. Pension shall the greater benefit being paid to the be paid to children in custody of a per- veteran’s parent. In the case of remar- son legally responsible for the chil- riage, the total combined annual in- dren’s support at an annual rate equal come of the parent and the parent’s to the difference between the rate for a spouse shall be counted in determining surviving spouse and an equivalent the monthly rate of DIC. number of children (but not including (c) Two parents not living together. The any child who has countable annual in- rate computation method in this para- come equal to or greater than the max- graph applies to: imum annual pension rate under para- (1) Two parents who are not living to- graph (b) of this section) and the sum gether, or of the countable annual income of the (2) An unremarried parent when both person legally responsible for support parents are living and the other parent and the combined countable annual in- has remarried. come of the children (but not including The monthly rate of DIC paid to such the income of any child whose count- parent shall be the rate sepcified in 38

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U.S.C. 1315(c)(1), as increased from (2) Helpless or blind, or so nearly time to time under 38 U.S.C. 5312, re- helpless or blind as to need or require duced by an amount no greater than the regular aid and attendance of an- $.08 for each dollar of such parent’s other person. countable annual income in excess of (f) Rate publication. Each time there $800, except that no payments of DIC is an increase under 38 U.S.C. 5312, the may be made under this paragraph if actual rates will be published in the such parent’s countable annual income ‘‘Notices’’ section of the FEDERAL REG- exceeds the amount specified in 38 ISTER. U.S.C. 1315(c)(3), as increased from (Authority: 38 U.S.C. 501) time to time under 38 U.S.C. 5312, and no payment of DIC to a parent under [52 FR 34907, Sept. 14, 1987, as amended at 61 this paragraph may be less than $5 FR 20727, May 8, 1996] monthly. Each time there is a rate increase under 38 U.S.C. 5312, the amount § 3.26 Section 306 and old-law pension annual income limitations. of the reduction under this paragraph shall be recomputed to provide, as (a) The annual income limitations nearly as possible, for an equitable dis- for section 306 pension shall be the tribution of the rate increase. The re- amounts specified in section sults of this computation method shall 306(a)(2)(A) of Pub. L. 95–588, as in- be published in schedular format in the creased from time to time under sec- ‘‘Notices’’ section of the FEDERAL REG- tion 306(a)(3) of Pub. L. 95–588. ISTER as provided in paragraph (f) of (b) If a beneficiary under section 306 this section. pension is in need of aid and attend- (d) Two parents living together or re- ance, the annual income limitation married parents living with spouse. The under paragraph (a) of this section rate computation method in this para- shall be increased in accordance with graph applies to each parent living 38 U.S.C. 1521(d), as in effect on Decem- with another parent and to each remar- ber 31, 1978. ried parent when both parents are (c) The annual income limitations for alive. The monthly rate of DIC paid to old-law pension shall be the amounts such parents shall be the rate specified specified in section 306(b)(3) of Pub. L. in 38 U.S.C. 1315(d)(1), as increased from 95–588, as increased from time to time time to time under 38 U.S.C. 5312, re- under section 306(b)(4) of Pub. L. 95–588. duced to an amount no greater than (d) Each time there is an increase $.08 for each dollar of such parent’s and under section 306 (a)(3) or (b)(4) of Pub. spouse’s combined countable annual in- L. 95–588, the actual income limitations come in excess of $1,000 except that no will be published in the ‘‘Notices’’ sec- payments of DIC to a parent under this tion of the FEDERAL REGISTER. paragraph may be less than $5 month- (Authority: 38 U.S.C. 501) ly. Each time there is a rate increase under 38 U.S.C. 5312, the amount of the [52 FR 34908, Sept. 14, 1987] reduction under this paragraph shall be recomputed to provide, as nearly as § 3.27 Automatic adjustment of benefit rates. possible, for an equitable distribution of the rate increase. The results of this (a) Improved pension. Whenever there computation method shall be published is a cost-of-living increase in benefit in schedular format in the ‘‘Notices’’ amounts payable under section 215(i) of section of the FEDERAL REGISTER as title II of the Social Security Act, VA provided in paragraph (f) of this sec- shall, effective on the dates such in- tion. creases become effective, increase by (e) Aid and attendance. The monthly the same percentage each maximum rate of DIC payable to a parent under annual rate of pension. this section shall be increased by the amount specified in 38 U.S.C. 1315(g), as (Authority: 38 U.S.C. 5312(a)) increased from time to time under 38 (b) Parents’ dependency and indemnity U.S.C. 5312, if such parent is: compensation—maximum annual income (1) A patient in a nursing home, or limitation and maximum monthly rates.

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Whenever there is a cost-of-living in- reason of the provisions of 38 U.S.C. crease in benefit amounts payable 5312, the following will be increased by under section 215(i) of title II of the So- the same percentage effective the same cial Security Act, VA shall, effective date: on the dates such increases become ef- (a) The maximum annual income fective, increase by the same percent- limitations applicable to continued re- age the annual income limitations and ceipt of section 306 and old-law pen- the maximum monthly rates of depend- sion; and ency indemnity compensation for par- (b) The dollar amount of a veteran’s ents. spouse’s income that is excludable in (Authority: 38 U.S.C. 5312(b)(1)) determining the income of a veteran for section 306 pension purposes. (See (c) Monetary allowance under 38 U.S.C. § 3.262(b)(2)) chapter 18 for certain individuals who are children of Vietnam veterans or children These increases shall be published in of veterans with covered service in Korea. the FEDERAL REGISTER at the same Whenever there is a cost-of-living in- time that increases under § 3.27 are crease in benefit amounts payable published. under section 215(i) of Title II of the (Authority: Sec. 306, Pub. L. 95–588). Social Security Act, VA shall, effective on the dates such increases become ef- [52 FR 34908, Sept. 14, 1987] fective, increase by the same percent- CROSS REFERENCES: Section 306 and old-law age the monthly allowance rates under pension annual income limitations. See 38 U.S.C. chapter 18. § 3.26.

(Authority: 38 U.S.C. 1805(b)(3), 1815(d), 1821, § 3.29 Rounding. 5312) (a) Annual rates. Where the computa- (d) Medal of Honor pension. Beginning tion of an increase in improved pension in the year 2004, VA shall, effective De- rates under §§ 3.23 and 3.24 would other- cember 1 of each year, increase the wise result in a figure which includes a monthly Medal of Honor pension by the fraction of a dollar, the benefit rate same percentage as the percentage by will be adjusted to the next higher dol- which benefit amounts payable under section 215(i) of Title II of the Social lar amount. This method of computa- Security Act are increased effective tion will also apply to increases in old- December 1 of such year. law and section 306 pension annual income limitations under § 3.26, including (Authority: 38 U.S.C. 1562(e)) the income of a spouse which is excluded from a veteran’s countable in- (e) Publishing requirements. Increases in pension rates, parents’ dependency come, and parents’ dependency and in- and indemnity compensation rates and demnity compensation benefit rates income limitation, the monthly allow- and annual income limitations under ance rates under 38 U.S.C. chapter 18 § 3.25. and the Medal of Honor pension made under this section shall be published in (Authority: 38 U.S.C. 5312(c)(2)) the FEDERAL REGISTER. (b) Monthly or other periodic pension rates. After determining the monthly (Authority: 38 U.S.C. 1805(b)(3), 1815(d), or other periodic rate of improved pen- 5312(c)(1)) sion under §§ 3.273 and 3.30 or the rate [44 FR 45934, Aug. 6, 1979, as amended at 52 payable under section 306(a) of Pub. L. FR 34908, Sept. 14, 1987; 62 FR 51278, Sept. 30, 95–588 (92 Stat. 2508), the resulting rate, 1997; 67 FR 49586, July 31, 2002; 68 FR 55467, Sept. 26, 2003; 76 FR 4247, Jan. 25, 2011] if not a multiple of one dollar, will be rounded down to the nearest whole dol- § 3.28 Automatic adjustment of section lar amount. The provisions of this 306 and old-law pension income paragraph apply with respect to limitations. amounts of pension payable for periods Whenever the maximum annual rates beginning on or after June 1, 1983, of improved pension are increased by under the provisions of 38 U.S.C. 1521,

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1541 or 1542, or under section 306(a) of than 4 percent of the maximum annual Pub. L. 95–588. rate payable under 38 U.S.C. 1315. (f) Payment of less than one dollar. (Authority: 38 U.S.C. 5123) Payments of less than $1 shall not be (c) Monthly rates under 38 U.S.C. chap- made. ter 18. When increasing the monthly monetary allowance rates under 38 CROSS REFERENCE: Pension. See § 3.3(a)(3), U.S.C. chapter 18 for certain individ- (b)(4). uals who are children of Vietnam vet- [44 FR 45935, Aug. 6, 1979, as amended at 51 erans or children of veterans with cov- FR 1790, Jan. 15, 1986; 53 FR 7903, Mar. 11, ered service in Korea, VA will round 1988; 57 FR 10425, Mar. 26, 1992; 71 FR 52290, any resulting rate that is not an even Sept. 5, 2006] dollar amount to the next higher dollar. § 3.31 Commencement of the period of payment. (Authority: 38 U.S.C. 1805(b)(3), 1815(d), 1821, Regardless of VA regulations con- 5312) cerning effective dates of awards, and [48 FR 34471, July 29, 1983, as amended at 65 except as provided in paragraph (c) of FR 35282, June 2, 2000; 67 FR 49586, July 31, this section, payment of monetary ben- 2002; 75 FR 4247, Jan. 25, 2011] efits based on original, supplemental, or increased awards of compensation, § 3.30 Frequency of payment of improved pension and parents’ de- pension, dependency and indemnity pendency and indemnity compensa- compensation, or a monetary allow- tion (DIC). ance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam Payment shall be made as shown in veteran or a child of a veteran with paragraphs (a), (b), (c), (d), (e), and (f) of this section; however, beneficiaries covered service in Korea may not be receiving payment less frequently than made for any period prior to the first monthly may elect to receive payment day of the calendar month following monthly in cases in which other Fed- the month in which the award became eral benefits would otherwise be de- effective. However, beneficiaries will be nied. deemed to be in receipt of monetary benefits during the period between the (Authority: 38 U.S.C. 501) effective date of the award and the date payment commences for the purpose of (a) Improved pension—Monthly. Pay- all laws administered by the Depart- ment shall be made monthly if the an- ment of Veterans Affairs except that nual rate payable is $228 or more. nothing in this section will be con- (b) Improved pension—Quarterly. Pay- strued as preventing the receipt of re- ment shall be made every 3 months on tired or retirement pay prior to the ef- or about March 1, June 1, September l, fective date of waiver of such pay in ac- and December 1, if the annual rate pay- cordance with 38 U.S.C. 5305. able is at least $144 but less than $228. (a) Increased award defined. For the (c) Improved pension—Semiannually. purposes of this section the term in- Payment shall be made every 6 months creased award means an award which is on or about June 1, and December 1, if increased because of an added depend- the annual rate payable is at least $72 ent, increase in disability or disability but less than $144. rating, or reduction in income. The (d) Improved pension—Annually. Pay- term also includes elections of im- ment shall be made annually on or proved pension under section 306 of about June 1, if the annual rate pay- Pub. L. 95–588 and awards pursuant to able is less than $72. paragraphs 29 and 30 of the Schedule for Rating Disabilities except as pro- (Authority: 38 U.S.C. 1508) vided in paragraph (c) of this section. (e) Parents’ DIC—Semiannually. Bene- (b) General rule of applicability. The fits shall be paid every 6 months on or provisions of this section apply to all about June 1, and December 1, if the original, supplemental, or increased amount of the annual benefit is less awards unless such awards provide only

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for continuity of entitlement with no first day of the month in which the increase in rate of payment. hospitalization or treatment began. (c) Specific exclusions. The provisions (Authority: 38 U.S.C. 1805, 1815, 1821, 1832, of this section do not apply to the fol- 5111) lowing types of awards. (1) Surviving spouse’s rate for the [48 FR 34472, July 29, 1983; 48 FR 37031, Aug. month of a veteran’s death (for excep- 16, 1983, as amended at 49 FR 47003, Nov. 30, 1984; 65 FR 35282, June 2, 2000; 67 FR 49586, tion see § 3.20(b)) July 31, 2002; 76 FR 4247, Jan. 25, 2011; 84 FR (2) In cases where military retired or 166, Jan. 18, 2019] retirement pay is greater than the amount of compensation payable, com- § 3.32 Exchange rates for foreign cur- pensation will be paid as of the effec- rencies. tive date of waiver of such pay. How- When determining the rates of pen- ever, in cases where the amount of sion or parents’ DIC or the amounts of compensation payable is greater than burial, plot or headstone allowances or military retired or retirement pay, accrued benefits to which a claimant or payment of the available difference for beneficiary may be entitled, income re- any period prior to the effective date of ceived or expenses paid in a foreign total waiver of such pay is subject to currency shall be converted into U.S. the general provisions of this section. dollar equivalents employing quarterly (3) Adjustments of awards—such as in exchange rates established by the De- the case of original or increased appor- partment of the Treasury. tionments or the termination of any (a) Pension and parents’ DIC. (1) Be- withholding, reduction, or suspension cause exchange rates for foreign cur- by reason of: rencies cannot be determined in ad- (i) Recoupment, vance, rates of pension and parents’ (ii) An offset to collect indebtedness, DIC shall be projected using the most (iii) Institutionalization (hospitaliza- recent quarterly exchange rate and tion), shall be adjusted retroactively based (iv) Incompetency, upon actual exchange rates when an (v) Incarceration, annual eligibility verification report is (vi) An estate that exceeds the limi- filed. tation for certain hospitalized incom- (2) Retroactive adjustments due to petent veterans, or fluctuations in exchange rates shall be (vii) Discontinuance of apportion- calculated using the average of the ments. four most recent quarterly exchange (4) Increases resulting solely from rates. If the claimant reports income the enactment of legislation—such as and expenses for a prior reporting pe- (i) Cost-of-living increases in com- riod, the retroactive adjustment shall pensation or dependency and indem- be calculated using the average of the nity compensation, four quarterly rates which were the (ii) Increases in Improved Pension, most recent available on the closing parents’ dependency and indemnity date of the twelve-month period for compensation, or a monetary allow- which income and expenses are re- ance under 38 U.S.C. chapter 18 pursu- ported. ant to § 3.27, or (b) Burial, plot or headstone allowances (iii) Changes in the criteria for statu- and accrued benefits. Payment amounts tory award designations. for burial, plot or headstone allowances (5) Temporary total ratings pursuant and claims for accrued benefits as re- to paragraph 29 of the Schedule for imbursement from the person who bore Rating Disabilities when the entire pe- the expenses of a deceased beneficiary’s riod of hospitalization or treatment, last illness or burial shall be deter- including any period of post-hos- mined using the quarterly exchange pitalization convalescence, commences rate for the quarter in which the ex- and terminates within the same cal- penses forming the basis of the claim endar month. In such cases the period were paid. If the claim is filed by an of payment shall commence on the unpaid creditor, however, the quarterly

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rate for the quarter in which the vet- U.S. Army, pursuant to the Military eran died shall apply. When entitle- Order of the President of the United ment originates during a quarter for States dated July 26, 1941. Service as a which the Department of the Treasury guerrilla under the circumstances out- has not yet published a quarterly rate, lined in paragraph (d) of this section is amounts due shall be calculated using also included. Except as provided in the most recent quarterly exchange §§ 3.42 and 3.43, benefits based on serv- rate. ice described in this paragraph are payable at a rate of $0.50 for each dollar CROSS REFERENCES: Accrued benefits. See authorized under the law. § 3.1000. Accrued benefits payable to foreign beneficiaries. See § 3.1008. (Authority: 38 U.S.C. 107) (Authority: 38 U.S.C. 501) (2) Unless the record shows examina- [55 FR 8140, Mar. 7, 1990; 55 FR 10867, Mar. 23, tion at time of entrance into the 1990] Armed Forces of the United States, GENERAL such persons are not entitled to the presumption of soundness. This also § 3.40 Philippine and Insular Forces. applies upon reentering the Armed (a) Regular Philippine Scouts. Service Forces after a period of inactive serv- in the Philippine Scouts (except that ice. described in paragraph (b) of this sec- (d) Guerrilla service. (1) Persons who tion), the Insular Force of the Navy, served as guerrillas under a commis- Samoan Native Guard, and Samoan Na- sioned officer of the United States tive Band of the Navy is included for Army, Navy or Marine Corps, or under pension, compensation, dependency and a commissioned officer of the Common- indemnity compensation, and burial al- wealth Army recognized by and cooper- lowance. Benefits are payable in dol- ating with the United States Forces lars at the full-dollar rate. are included. (See paragraph (c) of this (b) Other Philippine Scouts. Service of section.) Service as a guerrilla by a persons enlisted under section 14, Pub. member of the Philippine Scouts or the L. 190, 79th Congress (Act of October 6, Armed Forces of the United States is 1945), is included for compensation and considered as service in his or her reg- dependency and indemnity compensa- ular status. (See paragraph (a) of this tion. Except as provided in §§ 3.42 and section.) 3.43, benefits based on service described (2) The following certifications by in this paragraph are payable at a rate the service departments will be accept- of $0.50 for each dollar authorized ed as establishing guerrilla service: under the law. All enlistments and re- (i) Recognized guerrilla service; enlistments of Philippine Scouts in the (ii) Unrecognized guerrilla service Regular Army between October 6, 1945, under a recognized commissioned offi- and June 30, 1947, inclusive, were made cer only if the person was a former under the provisions of Pub. L. 190 as it member of the United States Armed constituted the sole authority for such Forces (including the Philippine enlistments during that period. This paragraph does not apply to officers Scouts), or the Commonwealth Army. who were commissioned in connection This excludes civilians. with the administration of Pub. L. 190. A certification of Anti-Japanese Activity will not be accepted as establishing (Authority: 38 U.S.C. 107) guerrilla service. (c) Commonwealth Army of the Phil- (e) Combined service. Where a veteran ippines. (1) Service is included, for com- who had Commonwealth Army or guer- pensation, dependency and indemnity rilla service and also had other service, compensation, and burial allowance, wartime or peacetime, in the Armed from and after the dates and hours, re- Forces of the United States, has dis- spectively, when they were called into abilities which are compensable sepa- service of the Armed Forces of the rately on a dollar and a $0.50 for each United States by orders issued from dollar authorized basis, and the disabil- time to time by the General Officer, ities are combined under the authority

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contained in 38 U.S.C. 1157, the evalua- States will include a prisoner-of-war tion for which dollars are payable will status immediately following a period be first considered and the difference of active duty, or a period of recognized between this evaluation and the com- guerrilla service or unrecognized guer- bined evaluation will be the basis for rilla service under a recognized com- computing the amount payable at the missioned officer. In those cases where rate of $0.50 for each dollar authorized. following release from active duty as set forth in paragraph (a) of this sec- CROSS REFERENCE: Computation of service. See § 3.15. tion, the veteran is factually found by the Department of Veterans Affairs to [26 FR 1565, Feb. 24, 1961, as amended at 31 have been injured or killed by the Jap- FR 14454, Nov. 10, 1966; 60 FR 18355, Apr. 11, 1995. Redesignated and amended at 66 FR anese because of anti-Japanese activi- 66767, Dec. 27, 2001; 71 FR 8220, Feb. 16, 2006] ties or his or her former service in the Armed Forces of the United States, § 3.41 Philippine service. such injury or death may be held to (a) For a Regular Philippine Scout or have been incurred in active service for a member of one of the regular compo- Department of Veterans Affairs pur- nents of the Philippine Commonwealth poses. Determination shall be based on Army while serving with Armed Forces all available evidence, including serv- of United States, the period of active ice department reports, and consider- service will be from the date certified ation shall be given to the character by the Armed Forces as the date of en- and length of the veteran’s former ac- listment or date of report for active tive service in the Armed Forces of the duty whichever is later to date of re- United States. lease from active duty, discharge, (c) A prisoner-of-war status based death, or in the case of a member of upon arrest during general zonification the Philippine Commonwealth Army will not be sufficient of itself to bring June 30, 1946, whichever was earlier. a case within the definition of return Release from active duty includes: to military control. (1) Leaving one’s organization in an- (d) The active service of members of ticipation of or due to the capitulation. the irregular forces guerrilla will be the (2) Escape from prisoner-of-war sta- period certified by the service depart- tus. ment. (3) Parole by the Japanese. [26 FR 1566, Feb. 24, 1961, as amended at 26 (4) Beginning of missing-in-action FR 4612, May 26, 1961Redesignated at 66 FR status, except where factually shown 66767, Dec. 27, 2001] at that time he was with his or her unit or death is presumed to have oc- § 3.42 Compensation at the full-dollar curred while carried in such status: rate for certain Filipino veterans Provided, however, That where there is residing in the United States. credible evidence that he was alive (a) Definitions. For purposes of this after commencement of his or her section: missing-in-action status, the presump- (1) United States (U.S.) means the tion of death will not apply for Depart- states, territories and possessions of ment of Veterans Affairs purposes. the United States; the District of Co- (5) Capitulation on May 6, 1942, ex- lumbia, and the Commonwealth of cept that periods of recognized guer- Puerto Rico. rilla service or unrecognized guerrilla (2) Residing in the U.S. means that an service under a recognized commis- individual’s principal, actual dwelling sioned officer or periods of service in place is in the U.S. and that the indi- units which continued organized resist- vidual meets the residency require- ance against Japanese prior to formal ments of paragraph (c)(4) of this sec- capitulation will be considered return tion. to active duty for period of such serv- (3) Citizen of the U.S. means any indi- ice. vidual who acquires U.S. citizenship (b) Active service of a Regular Phil- through birth in the territorial U.S., ippine Scout or a member of the Phil- birth abroad as provided under title 8, ippine Commonwealth Army serving United States Code, or through natu- with the Armed Forces of the United ralization, and has not renounced his

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or her U.S. citizenship, or had such (C) Residential leases, rent receipts, citizenship cancelled, revoked, or oth- utility bills and receipts, or other rel- erwise terminated. evant documents showing dates of util- (4) Lawfully admitted for permanent ity service at a leased residence; residence means that an individual has (D) Hospital or medical records show- been lawfully accorded the privilege of ing medical treatment or hospitaliza- residing permanently in the U.S. as an tion, and showing the name of the med- immigrant by the U.S. Citizenship and ical facility or treating physician; Immigration Services under title 8, (E) Property tax bills and receipts; United States Code, and still has this and status. (F) School records. (b) Eligibility requirements. Compensa- (ii) A Post Office box mailing address tion and dependency and indemnity in the veteran’s name or the name of compensation is payable at the full- the veteran’s survivor does not con- dollar rate, based on service described stitute evidence showing that the vet- in § 3.40(b), (c), or (d), to a veteran or a eran or veteran’s survivor is lawfully veteran’s survivor who is residing in residing in the United States. the U.S. and is either: (d) Continued eligibility. (1) In order to (1) A citizen of the U.S., or continue receiving benefits at the full- (2) An alien lawfully admitted for dollar rate under this section, a vet- permanent residence in the U.S. eran or a veteran’s survivor must be (c) Evidence of eligibility. (1) A valid physically present in the U.S. for at original or copy of one of the following least 183 days of each calendar year in documents is required to prove that which he or she receives payments at the veteran or the veteran’s survivor is the full-dollar rate, and may not be ab- a natural born citizen of the U.S.: sent from the U.S. for more than 60 (i) A valid U.S. passport; consecutive days at a time unless good (ii) A birth certificate showing that cause is shown. However, if a veteran he or she was born in the U.S.; or or a veteran’s survivor becomes eligi- (iii) A Report of Birth Abroad of a ble for full-dollar rate benefits for the Citizen of the U.S. issued by a U.S. con- first time on or after July 1 of any cal- sulate abroad. endar year, the 183-day rule will not (2) Only verification by the U.S. Citi- apply during that calendar year. VA zenship and Immigration Services to will not consider a veteran or a vet- VA that a veteran or a veteran’s sur- eran’s survivor to have been absent vivor is a naturalized citizen of the from the U.S. if he or she left and re- U.S., or a valid U.S. passport, will be turned to the U.S. on the same date. sufficient proof of such status. (2) A veteran or a veteran’s survivor (3) Only verification by the U.S. Citi- receiving benefits at the full-dollar zenship and Immigration Services to rate under this section must notify VA VA that a veteran or a veteran’s sur- within 30 days of leaving the U.S., or vivor is an alien lawfully admitted for within 30 days of losing either his or permanent residence in the U.S. will be her U.S. citizenship or lawful perma- sufficient proof of such status. nent resident alien status. When a vet- (4) VA will not pay benefits at the eran or a veteran’s survivor no longer full-dollar rate under this section un- meets the eligibility requirements of less the evidence establishes that the paragraph (b) of this section, VA will veteran or survivor is lawfully residing reduce his or her payment to the rate in the U.S. of $0.50 for each dollar authorized (i) Such evidence should identify the under the law, effective on the date de- veteran’s or survivor’s name and rel- termined under § 3.505. If such veteran evant dates, and may include: or survivor regains his or her U.S. citi- (A) A valid driver’s license issued by zenship or lawful permanent resident the state of residence; alien status, VA will restore full-dollar (B) Employment records, which may rate benefits, effective the date the consist of pay stubs, W-2 forms, and veteran or survivor meets the eligi- certification of the filing of Federal, bility requirements in paragraph (b) of State, or local income tax returns; this section.

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(3) When requested to do so by VA, a § 3.43 Burial benefits at the full-dollar veteran or survivor receiving benefits rate for certain Filipino veterans at the full-dollar rate under this sec- residing in the United States on the tion must verify that he or she con- date of death. tinues to meet the residency and citi- (a) Definitions. For purposes of this zenship or permanent resident alien section: status requirements of paragraph (b) of (1) United States (U.S.) means the this section. VA will advise the veteran states, territories and possessions of or survivor at the time of the request the United States, the District of Co- that the verification must be furnished lumbia, and the Commonwealth of within 60 days and that failure to do so Puerto Rico. will result in the reduction of benefits. (2) Residing in the U.S. means an indi- If the veteran or survivor fails to fur- vidual’s principal, actual dwelling nish the evidence within 60 days, VA place was in the U.S. When death oc- will reduce his or her payment to the curs outside the U.S., VA will consider rate of $0.50 for each dollar authorized, the deceased individual to have been as provided in § 3.652. residing in the U.S. on the date of (4) A veteran or survivor receiving death if the individual maintained his or her principal actual dwelling place benefits at the full-dollar rate under in the U.S. until his or her most recent this section must promptly notify VA departure from the U.S., and he or she of any change in his or her address. If had been physically absent from the mail from VA to the veteran or sur- U.S. less than 61 consecutive days when vivor is returned to VA by the U.S. he or she died. Postal Service, VA will make reason- (3) Citizen of the U.S. means any indi- able efforts to determine the correct vidual who acquires U.S. citizenship mailing address. If VA is unable to de- through birth in the territorial U.S., termine the correct mailing address birth abroad as provided under title 8, through reasonable efforts, VA will re- United States Code, or through natu- duce benefit payments to the rate of ralization, and has not renounced his $0.50 for each dollar authorized under or her U.S. citizenship, or had such law, effective on the date determined citizenship cancelled, revoked, or oth- under § 3.505. erwise terminated. (e) Effective date for restored eligibility. (4) Lawfully admitted for permanent In the case of a veteran or survivor re- residence means that the individual was ceiving benefits at the full-dollar rate, lawfully accorded the privilege of re- if VA reduces his or her payment to the siding permanently in the U.S. as an rate of $0.50 for each dollar authorized immigrant by the U.S. Citizenship and under the law, VA will resume pay- Immigration Services under title 8, ments at the full-dollar rate, if other- United States Code, and on the date of wise in order, effective the first day of death, still had this status. the month following the date on which (b) Eligibility requirements. VA will he or she again meets the require- pay burial benefits under chapter 23 of ments. However, such increased pay- title 38, United States Code, at the full- ments will be retroactive no more than dollar rate, based on service described one year prior to the date on which VA in § 3.40(c) or (d), when an individual who performed such service dies after receives evidence that he or she again November 1, 2000, or based on service meets the requirements. described in § 3.40(b) when an individual (The Office of Management and Budget has who performed such service dies after approved the information collection require- December 15, 2003, and was on the date ments in this section under control number of death: 2900–0655) (1) Residing in the U.S.; and [66 FR 66767, Dec. 27, 2001, as amended at 71 (2) Either— FR 8220, Feb. 16, 2006; 72 FR 9, Jan. 3, 2007] (i) A citizen of the U.S., or (ii) An alien lawfully admitted for permanent residence in the U.S.; and (3) Either—

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(i) Receiving compensation under showing the name of the medical facil- chapter 11 of title 38, United States ity or treating physician; Code; or (E) Property tax bills and receipts; (ii) Would have satisfied the dis- and ability, income and net worth require- (F) School records. ments of § 3.3(a)(3) of this part and (ii) A Post Office box mailing address would have been eligible for pension if in the veteran’s name does not con- the veteran’s service had been deemed stitute evidence showing that the vet- to be active military, naval, or air eran was lawfully residing in the service. United States on the date of death. (c) Evidence of eligibility. (1) In a claim (Authority: 38 U.S.C. 107, 501(a)) for full-dollar rate burial payments based on the deceased veteran having (The Office of Management and Budget has been a natural born citizen of the U.S., approved the information collection requirements in this section under control number a valid original or copy of one of the 2900–0655) following documents is required: (i) A valid U.S. passport; [66 FR 66767, Dec. 27, 2001, as amended at 71 (ii) A birth certificate showing that FR 8221, Feb. 16, 2006; 72 FR 9, Jan. 3, 2007] he or she was born in the U.S.; or RELATIONSHIP (iii) A Report of Birth Abroad of a Citizen of the U.S. issued by a U.S. con- § 3.50 Spouse and surviving spouse. sulate abroad. (a) Spouse. ‘‘Spouse’’ means a person (2) In a claim based on the deceased of the opposite sex whose marriage to veteran having been a naturalized cit- the veteran meets the requirements of izen of the U.S., only verification of § 3.1(j). that status by the U.S. Citizenship and (b) Surviving spouse. Except as pro- Immigration Services to VA, or a valid vided in § 3.52, ‘‘surviving spouse’’ U.S. passport, will be sufficient proof means a person of the opposite sex for purposes of eligibility for full-dollar whose marriage to the veteran meets rate benefits. the requirements of § 3.1(j) and who was (3) In a claim based on the deceased the spouse of the veteran at the time of veteran having been an alien lawfully the veteran’s death and: admitted for permanent residence in (1) Who lived with the veteran con- the U.S., only verification of that sta- tinuously from the date of marriage to tus by the U.S. Citizenship and Immi- the date of the veteran’s death except gration Services to VA will be suffi- where there was a separation which cient proof for purposes of eligibility was due to the misconduct of, or pro- for full-dollar rate benefits. cured by, the veteran without the fault (4) VA will not pay benefits at the of the spouse; and full-dollar rate under this section un- (2) Except as provided in § 3.55, has less the evidence establishes that the not remarried or has not since the veteran was lawfully residing in the death of the veteran and after Sep- U.S. on the date of death. tember 19, 1962, lived with another per- (i) Such evidence should identify the son of the opposite sex and held himself veteran’s name and relevant dates, and or herself out openly to the public to may include: be the spouse of such other person. (A) A valid driver’s license issued by the state of residence; [62 FR 5529, Feb. 6, 1997] (B) Employment records, which may consist of pay stubs, W-2 forms, and § 3.52 Marriages deemed valid. certification of the filing of Federal, Where an attempted marriage of a State, or local income tax returns; claimant to the veteran was invalid by (C) Residential leases, rent receipts, reason of a legal impediment, the mar- utility bills and receipts, or other rel- riage will nevertheless be deemed valid evant documents showing dates of util- if: ity service at a leased residence; (a) The marriage occurred 1 year or (D) Hospital or medical records show- more before the veteran died or existed ing medical treatment or hospitaliza- for any period of time if a child was tion of the veteran or survivor, and born of the purported marriage or was

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born to them before such marriage (see subsequently involved in the applica- § 3.54(d)), and tion of this section. (b) The claimant entered into the [41 FR 18300, May 3, 1976, as amended at 59 marriage without knowledge of the im- FR 32659, June 24, 1994] pediment, and (c) The claimant cohabited with the § 3.54 Marriage dates. veteran continuously from the date of A surviving spouse may qualify for marriage to the date of his or her death pension, compensation, or dependency as outlined in § 3.53, and and indemnity compensation if the (d) No claim has been filed by a legal marriage to the veteran occurred be- surviving spouse who has been found fore or during his or her service or, if entitled to gratuitous death benefits married to him or her after his or her other than accrued monthly benefits separation from service, before the ap- covering a period prior to the veteran’s plicable date stated in his section. (a) Pension. Death pension may be death. paid to a surviving spouse who was (Authority: 38 U.S.C. 103(a)) married to the veteran: (1) One year or more prior to the vet- CROSS REFERENCE: Definition, marriage. See § 3.205(c). eran’s death, or (2) For any period of time if a child [26 FR 1567, Feb. 24, 1961, as amended at 27 was born of the marriage, or was born FR 1215, Feb. 9, 1962; 32 FR 13224, Sept. 19, to them before the marriage, or 1967; 41 FR 18299, May 3, 1976] (3) Prior to the applicable delimiting dates, as follows: § 3.53 Continuous cohabitation. (i) Civil War—June 27, 1905. (a) General. The requirement that (ii) Indian wars—March 4, 1917. there must be continuous cohabitation (iii) Spanish-American War—January from the date of marriage to the date 1, 1938. of death of the veteran will be consid- (iv) Mexican border period and World ered as having been met when the evi- War I—December 14, 1944. dence shows that any separation was (v) World War II—January 1, 1957. due to the misconduct of, or procured (vi) Korean conflict—February 1, 1965. by, the veteran without the fault of the (vii) Vietnam era—May 8, 1985. surviving spouse. Temporary separa- (viii) Persian Gulf War—January 1, tions which ordinarily occur, including 2001. those caused for the time being through fault of either party, will not (Authority: 38 U.S.C. 532(d), 534(c), 536(c), break the continuity of the cohabita- 541(e), 541(f)) tion. (b) Compensation. Death compensa- (b) Findings of fact. The statement of tion may be paid to a surviving spouse the surviving spouse as to the reason who, with respect to date of marriage, for the separation will be accepted in could have qualified as a surviving the absence of contradictory informa- spouse for death compensation under tion. If the evidence establishes that any law administered by the Depart- the separation was by mutual consent ment of Veterans Affairs in effect on and that the parties lived apart for December 31, 1957, or who was married purposes of convenience, health, busi- to the veteran: ness, or any other reason which did not (1) Before the expiration of 15 years show an intent on the part of the sur- after termination of the period of serv- viving spouse to desert the veteran, the ice in which the injury or disease continuity of the cohabitation will not which caused the veteran’s death was be considered as having been broken. incurred or aggravated, or State laws will not control in deter- (2) One year or more, or mining questions of desertion; how- (3) For any period of time if a child ever, due weight will be given to find- was born of the marriage, or was born to them before the marriage. ings of fact in court decisions made during the life of the veteran on issues (Authority: 38 U.S.C. 1102)

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(c) Dependency and indemnity com- that the annulment was obtained pensation. Dependency and indemnity through fraud by either party or by compensation payable under 38 U.S.C. collusion. 1310(a) may be paid to the surviving (2) On or after January 1, 1971, remar- spouse of a veteran who died on or riage of a surviving spouse terminated after January 1, 1957, who was married prior to November 1, 1990, or termi- to the veteran: nated by legal proceedings commenced (1) Before the expiration of 15 years prior to November 1, 1990, by an indi- after the termination of the period of vidual who, but for the remarriage, service in which the injury or disease would be considered the surviving causing the death of the veteran was spouse, shall not bar the furnishing of incurred or aggravated, or benefits to such surviving spouse pro- (2) For 1 year or more, or vided that the marriage: (3) For any period of time if a child (i) Has been terminated by death, or was born of the marriage, or was born (ii) Has been dissolved by a court to them before the marriage. with basic authority to render divorce decrees unless the Department of Vet- (Authority: 38 U.S.C. 1304) erans Affairs determines that the di- (d) Child born. The term child born of vorce was secured through fraud by the the marriage means a birth on or after surviving spouse or by collusion. the date of the marriage on which the (3) On or after October 1, 1998, remar- surviving spouse’s entitlement is predi- riage of a surviving spouse terminated by death, divorce, or annulment, will cated. The term born to them before the not bar the furnishing of dependency marriage means a birth prior to the and indemnity compensation, unless date of such marriage. Either term in- the Secretary determines that the di- cludes a fetus advanced to the point of vorce or annulment was secured gestation required to constitute a birth through fraud or collusion. under the law of the jurisdiction in which the fetus was delivered. (Authority: 38 U.S.C. 1311(e)) (e) More than one marriage to veteran. For periods commencing on or after (4) On or after December 1, 1999, re- January 1, 1958, where a surviving marriage of a surviving spouse termi- spouse has been married legally to a nated by death, divorce, or annulment, veteran more than once, the date of the will not bar the furnishing of benefits original marriage will be used in deter- relating to medical care for survivors mining whether the statutory require- and dependents under 38 U.S.C. 1781, ment as to date of marriage has been educational assistance under 38 U.S.C. met. chapter 35, or housing loans under 38 U.S.C. chapter 37, unless the Secretary (Authority: 38 U.S.C. 103(b)) determines that the divorce or annul- [26 FR 1567, Feb. 24, 1961, as amended at 27 ment was secured through fraud or col- FR 6498, July 10, 1962; 32 FR 13224, Sept. 19, lusion. 1967; 40 FR 16064, Apr. 9, 1975; 40 FR 48680, Oct. 17, 1975; 41 FR 18300, May 3, 1976; 44 FR (Authority: 38 U.S.C. 103(d)) 22718, Apr. 17, 1979; 54 FR 31829, Aug. 2, 1989; 56 FR 5756, Feb. 13, 1991; 56 FR 57986, Nov. 15, (5) On or after January 1, 1971, the 1991; 65 FR 3392, Jan. 21, 2000] fact that a surviving spouse has lived with another person and has held him- § 3.55 Reinstatement of benefits eligi- self or herself out openly to the public bility based upon terminated mar- as the spouse of such other person shall ital relationships. not bar the furnishing of benefits to (a) Surviving spouse. (1) Remarriage of him or her after he or she terminates a surviving spouse shall not bar the the relationship, if the relationship furnishing of benefits to such surviving terminated prior to November 1, 1990. spouse if the marriage: (6) On or after October 1, 1998, the (i) Was void, or fact that a surviving spouse has lived (ii) Has been annulled by a court hav- with another person and has held him- ing basic authority to render annul- self or herself out openly to the public ment decrees, unless it is determined as the spouse of such other person will by the Department of Veterans Affairs not bar the furnishing of dependency

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and indemnity compensation to the (10) Benefits for a surviving spouse who surviving spouse if he or she ceases liv- remarries after age 57. (i) On or after ing with such other person and holding January 1, 2004, the remarriage of a himself or herself out openly to the surviving spouse after the age of 57 public as such other person’s spouse. shall not bar the furnishing of benefits relating to dependency and indemnity (Authority: 38 U.S.C. 1311(e)) compensation under 38 U.S.C. 1311, (7) On or after December 1, 1999, the medical care for survivors and depend- fact that a surviving spouse has lived ents under 38 U.S.C. 1781, educational with another person and has held him- assistance under 38 U.S.C. chapter 35, self or herself out openly to the public or housing loans under 38 U.S.C. chap- as the spouse of such other person will ter 37, subject to the limitation in not bar the furnishing of benefits relat- paragraph (a)(10)(ii) of this section. ing to medical care for survivors and (ii) A surviving spouse who remarried dependents under 38 U.S.C. 1781, edu- after the age of 57, but before December cational assistance under 38 U.S.C. 16, 2003, may be eligible for dependency chapter 35, or housing loans under 38 and indemnity compensation under 38 U.S.C. chapter 37 to the surviving U.S.C. 1311, medical care for survivors spouse if he or she ceases living with and dependents under 38 U.S.C. 1781, such other person and holding himself educational assistance under 38 U.S.C. or herself out openly to the public as chapter 35, or housing loans under 38 such other person’s spouse. U.S.C. chapter 37 pursuant to paragraph (a)(10)(i) only if the application (Authority: 38 U.S.C. 103(d)) for such benefits was received by VA (8) On or after January 1, 1971, the before December 16, 2004. fact that benefits to a surviving spouse (Authority: 38 U.S.C. 103). may previously have been barred because his or her conduct or a relation- (b) Child. (1) Marriage of a child shall ship into which he or she had entered not bar the furnishing of benefits to or had raised an inference or presumption on account of such child, if the mar- that he or she had remarried or had riage: been determined to be open and noto- (i) Was void, or rious adulterous cohabitation, or simi- (ii) Has been annulled by a court hav- lar conduct, shall not bar the fur- ing basic authority to render annul- nishing of benefits to such surviving ment decrees, unless it is determined spouse after he or she terminates the by the Department of Veterans Affairs conduct or relationship, if the relation- that the annulment was obtained ship terminated prior to November 1, through fraud by either party or by 1990. collusion. (9) Benefits under 38 U.S.C. 1781 for a (2) On or after January 1, 1975, mar- surviving spouse who remarries after age riage of a child terminated prior to No- 55. (i) On or after February 4, 2003, the vember 1, 1990, shall not bar the fur- remarriage of a surviving spouse after age 55 shall not bar the furnishing of nishing of benefits to or for such child benefits relating to medical care for provided that the marriage: survivors and dependents under 38 (i) Has been terminated by death, or U.S.C. 1781, subject to the limitation in (ii) Has been dissolved by a court paragraph (a)(9)(ii) of this section. with basic authority to render divorce (ii) A surviving spouse who remarried decrees unless the Department of Vet- after the age of 55, but before December erans Affairs determines that the di- 6, 2002, may be eligible for benefits re- vorce was secured through fraud by ei- lating to medical care for survivors and ther party or by collusion. dependents under 38 U.S.C. 1781 pursu- (Authority: 38 U.S.C. 103; 105 Stat. 424, 106 ant to paragraph (a)(9)(i) only if the ap- Stat. 4322) plication for such benefits was received by VA before December 16, 2004. (Authority: 38 U.S.C. 103).

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CROSS REFERENCES: Evidence. See §§ 3.206 (i) A person who was adopted by the and 3.207. Termination of marital relation- veteran between the ages of 18 and 23 ship or conduct. See § 3.215. years. [58 FR 32444, June 10, 1993, as amended at 60 (ii) A person who became a stepchild FR 52863, Oct. 11, 1995; 64 FR 30245, June 7, of the veteran between the ages of 18 1999; 65 FR 43700, July 14, 2000; 71 FR 29084, and 23 years and who is a member of May 19, 2006] the veteran’s household or was a member of the veteran’s household at the § 3.56 [Reserved] time of the veteran’s death. (3) Subject to the provisions of para- § 3.57 Child. graphs (c) and (e) of this section, the (a) General. (1) Except as provided in term child also includes a person who paragraphs (a)(2) through (4) of this became permanently incapable of self- section, the term child of the veteran support before reaching the age of 18 means an unmarried person who is a le- years, who was a member of the vet- gitimate child, a child legally adopted eran’s household at the time he or she before the age of 18 years, a stepchild became 18 years of age, and who was who acquired that status before the age adopted by the veteran, regardless of of 18 years and who is a member of the the age of such person at the time of veteran’s household or was a member adoption. of the veteran’s household at the time of the veteran’s death, or an illegit- (Authority: 38 U.S.C. 101(4)(A)) imate child; and (4) For purposes of any benefits pro- (i) Who is under the age of 18 years; vided under 38 U.S.C. 1115, Additional or compensation for dependents, the term (ii) Who, before reaching the age of 18 child does not include a child of a vet- years, became permanently incapable eran who is adopted out of the family of self-support; or of the veteran. This limitation does not (iii) Who, after reaching the age of 18 apply to any benefit administered by years and until completion of edu- the Secretary that is payable directly to a child in the child’s own right, such cation or training (but not after reach- as dependency and indemnity coming the age of 23 years) is pursuing a pensation under 38 CFR 3.5. course of instruction at an educational institution approved by the Depart- (Authority: 38 U.S.C. 101(4), 501, 1115). ment of Veterans Affairs. For the purposes of this section and § 3.667, the (b) Stepchild. The term means a le- term ‘‘educational institution’’ means gitimate or an illegitimate child of the a permanent organization that offers veteran’s spouse. A child of a surviving courses of instruction to a group of spouse whose marriage to the veteran students who meet its enrollment cri- is deemed valid under the provisions of teria, including schools, colleges, acad- § 3.52, and who otherwise meets the re- emies, seminaries, technical institutes, quirements of this section is included. and universities. The term also in- (c) Adopted child. Except as provided cludes home schools that operate in in paragraph (e) of this section, the compliance with the compulsory at- term means a child adopted pursuant tendance laws of the States in which to a final decree of adoption, a child they are located, whether treated as adopted pursuant to an unrescinded in- private schools or home schools under terlocutory decree of adoption while State law. The term ‘‘home schools’’ is remaining in the custody of the adopt- limited to courses of instruction for ing parent (or parents) during the in- grades kindergarten through 12. terlocutory period, and a child who has been placed for adoption under an agreement entered into by the adopt- (Authority: 38 U.S.C. 101(4)(A), 104(a)) ing parent (or parents) with any agen- (2) For the purposes of determining cy authorized under law to so act, un- entitlement of benefits based on a less and until such agreement is termi- child’s school attendance, the term nated, while the child remains in the child of the veteran also includes the custody of the adopting parent (or par- following unmarried persons: ents) during the period of placement

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for adoption under such agreement. natural or adoptive parent so long as The term includes, as of the date of the natural or adoptive parent and the death of a veteran, such a child who: stepparent are not estranged and resid- (1) Was living in the veteran’s house- ing apart, and the natural or adoptive hold at the time of the veteran’s death, parent has not been divested of legal and custody. When a child is in such joint (2) Was adopted by the veteran’s custody the combined income of the spouse under a decree issued within 2 natural or adoptive parent and the years after August 25, 1959, or the vet- stepparent shall be included as income eran’s death whichever is later, and of the person legally responsible for (3) Was not receiving from an indi- support under § 3.24(c). vidual other than the veteran or the (3) A person having custody of a child veteran’s spouse, or from a welfare or- prior to the time the child attains age ganization which furnishes services or 18 shall be considered to retain custody assistance for children, recurring con- of the child for periods on and after the tributions of sufficient size to con- child’s 18th birthday, unless the person stitute the major portion of the child’s is divested of legal custody. This ap- support. plies without regard to when a child reaches the age of majority under ap- (Authority: 38 U.S.C. 101(4)) plicable State law. This also applies (d) Definition of child custody. The without regard to whether the child provisions of this paragraph are for the was entitled to pension prior to age 18, purpose of determining entitlement to or whether increased pension was pay- improved pension under §§ 3.23 and 3.24. able to a veteran or surviving spouse (1) Custody of a child shall be consid- on behalf of the child prior to the ered to rest with a veteran, surviving child’s 18th birthday. If the child’s cus- spouse of a veteran or person legally todian dies after the child has attained responsible for the child’s support if age 18, the child shall be considered to that person has the legal right to exer- be in custody of a successor custodian cise parental control and responsibility provided the successor custodian has for the welfare and care of the child. A the right to exercise parental control child of the veteran residing with the and responsibility for the welfare and veteran, surviving spouse of the vet- care of the child. eran who is the child’s natural or adoptive parent, or person legally respon- (Authority: 38 U.S.C. 501, 1521(c), 1541(c)) sible for the child’s support shall be presumed to be in the custody of that (e) Child adopted under foreign law— individual. Where the veteran, sur- (1) General. The provisions of this para- viving spouse, or person legally respon- graph are applicable to a person adopt- sible for the child’s support has not ed under the laws of any jurisdiction been divested of legal custody, but the other than a State. The term State is child is not residing with that indi- defined in 38 U.S.C. 101(20) and also in- vidual, the child shall be considered in cludes the Commonwealth of the the custody of the individual for pur- Northern Mariana Islands. The term poses of Department of Veterans Af- veteran includes, for the purposes of fairs benefits. this paragraph, a Commonwealth Army (2) The term person legally responsible veteran or new Philippine Scout as de- for the child’s support means a person fined in 38 U.S.C. 3566. who is under a legally imposed obliga- (2) Adopted child of living veteran. A tion (e.g., by statute or court order) to person residing outside any of the provide for the child’s support, as well States shall not be considered to be a as a natural or adoptive parent who legally adopted child of a veteran dur- has not been divested of legal custody. ing the lifetime of the veteran unless If the child’s natural or adoptive par- all of the following conditions are met. ent has remarried, the stepparent may (i) The person was less than 18 years also be considered a person legally re- of age at the time of adoption. sponsible for the child’s support. A (ii) The person is receiving one-half child shall be considered in the joint or more of the person’s support from custody of his or her stepparent and the veteran.

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(iii) The person is not in the custody whether such requirements will con- of the person’s natural parent unless tinue to be met for future entitlement the natural parent is the veteran’s periods. Failure to submit the re- spouse. quested report or evidence within a (iv) The person is residing with the reasonable time from date of request veteran (or in the case of divorce fol- may result in termination of benefits lowing adoption, with the divorced payable for or to the child. spouse who is also a natural or adoptive parent) except for periods during (Authority: 38 U.S.C. 101(4), 501) which the person is residing apart from CROSS REFERENCES: Improved pension the veteran for purposes of full-time rates. See § 3.23. Improved pension rates; sur- attendance at an educational institu- viving children. See § 3.24. Child adopted out tion or during which the person or the of family. See § 3.58. Child’s relationship. See veteran is confined in a hospital, nurs- § 3.210. Helplessness. See § 3.403(a)(1). Help- ing home, other health-care facility, or lessness. See § 3.503(a)(3). Veteran’s benefits other institution. not apportionable. See § 3.458. School attendance. See § 3.667. Helpless children—Spanish- (3) Adopted child of deceased veteran. A American and prior wars. See § 3.950. person shall not be considered to have been a legally adopted child of a vet- [44 FR 45935, Aug. 6, 1979 and 45 FR 1878, Jan. eran as of the date of the veteran’s 9, 1980, as amended at 45 FR 25391, Apr. 15, death and thereafter unless one of the 1980; 49 FR 47003, Nov. 30, 1984; 65 FR 12116, Mar. 8, 2000; 72 FR 6959, Feb. 14, 2007; 80 FR following conditions is met. 48451, Aug. 13, 2015] (i) The veteran was entitled to and was receiving for the person a depend- § 3.58 Child adopted out of family. ent’s allowance or similar monetary benefit payable under title 38, United (a) Except as provided in paragraph States Code at any time within the 1- (b) of this section, a child of a veteran year period immediately preceding the adopted out of the family of the vet- veteran’s death; or eran either prior or subsequent to the (ii) The person met the requirements veteran’s death is nevertheless a child of paragraph (e)(2) of this section for a within the meaning of that term as de- period of at least 1 year prior to the fined by § 3.57 and is eligible for bene- veteran’s death. fits payable under all laws adminis- (4) Verification. In the case of an tered by the Department of Veterans adopted child of a living veteran, the Affairs. requirements of paragraphs (e)(2)(ii), (b) A child of a veteran adopted out (iii) and (iv) of this section are for proof the family of the veteran is not a spective application. That is, in addi- child within the meaning of § 3.57 for tion to meeting all of the requirements purposes of any benefits provided under of paragraph (e)(2) of this section at 38 U.S.C. 1115, Additional compensation the time of initial adjudication, bene- for dependents. fits are not payable thereafter for or to (Authority: 38 U.S.C. 101(4)(A), 1115). a child adopted under the laws of any jurisdiction other than a State unless CROSS REFERENCES: Child. See § 3.57. Vet- the requirements of paragraphs eran’s benefits not apportionable. See § 3.458. (e)(2)(ii), (iii) and (iv) of this section continue to be met. Consequently, [80 FR 48451, Aug. 13, 2015] whenever Department of Veterans Af- § 3.59 Parent. fairs benefits are payable to or for a child adopted under the laws of any ju- (a) The term parent means a natural risdiction other than a State, and the mother or father (including the mother veteran who adopted the child is living, of an illegitimate child or the father of the beneficiary shall submit, upon De- an illegitimate child if the usual fam- partment of Veterans Affairs request, a ily relationship existed), mother or fa- report, or other evidence, to determine ther through adoption, or a person who if the requirements of paragraph for a period of not less than 1 year (e)(2)(ii), (iii), and (iv) of this section stood in the relationship of a parent to were met for any period for which pay- a veteran at any time before his or her ment was made for or to the child and entry into active service.

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(b) Foster relationship must have to the provisions of 38 U.S.C. 6103 or begun prior to the veteran’s 21st birth- 6104. See § 3.905. day. Not more than one father and one (Authority: 38 U.S.C. 512(a)) mother, as defined, will be recognized in any case. If two persons stood in the [29 FR 7547, June 12, 1964, as amended at 31 FR 14455, Nov. 10, 1966; 37 FR 10442, May 23, relationship of father or mother for 1 1972; 53 FR 3207, Feb. 4, 1988; 60 FR 18355, Apr. year or more, the person who last stood 11, 1995; 61 FR 20727, May 8, 1996; 78 FR 2100, in such relationship before the vet- Jan. 13, 2014] eran’s last entry into active service will be recognized as the parent. § 3.102 Reasonable doubt. It is the defined and consistently ap- (Authority: 38 U.S.C. 101(5)) plied policy of the Department of Vet- [26 FR 1568, Feb. 24, 1961, as amended at 44 erans Affairs to administer the law FR 45935, Aug. 6, 1979] under a broad interpretation, consistent, however, with the facts shown § 3.60 Definition of ‘‘living with’’. in every case. When, after careful con- For the purposes of determining enti- sideration of all procurable and assem- tlement to pension under 38 U.S.C. 1521, bled data, a reasonable doubt arises re- a person shall be considered as living garding service origin, the degree of with his or her spouse even though disability, or any other point, such they reside apart unless they are es- doubt will be resolved in favor of the tranged. claimant. By reasonable doubt is meant one which exists because of an (Authority: 38 U.S.C. 1521(h)(2)) approximate balance of positive and [44 FR 45935, Aug. 6, 1979] negative evidence which does not satis- factorily prove or disprove the claim. ADMINISTRATIVE It is a substantial doubt and one within the range of probability as distin- § 3.100 Delegations of authority. guished from pure speculation or remote possibility. It is not a means of (a) Authority is delegated to the reconciling actual conflict or a con- Under Secretary for Benefits and to su- tradiction in the evidence. Mere sus- pervisory or adjudicative personnel picion or doubt as to the truth of any within the jurisdiction of the Veterans statements submitted, as distinguished Benefits Administration designated by from impeachment or contradiction by the Under Secretary to make findings evidence or known facts, is not justifi- and decisions under the applicable able basis for denying the application laws, regulations, precedents, and in- of the reasonable doubt doctrine if the structions, as to entitlement of claim- entire, complete record otherwise war- ants to benefits under all laws adminis- rants invoking this doctrine. The rea- tered by the Department of Veterans sonable doubt doctrine is also applica- Affairs governing the payment of mon- ble even in the absence of official etary benefits to veterans and their de- records, particularly if the basic inci- pendents, within the jurisdiction of the dent allegedly arose under combat, or Compensation Service or the Pension similarly strenuous conditions, and is and Fiduciary Service. consistent with the probable results of (b) Authority is delegated to the Di- such known hardships. rector, Compensation Service, and the (Authority: 38 U.S.C. 501) Director, Pension and Fiduciary Serv- [50 FR 34458, Aug. 26, 1985, as amended at 66 ice, and to personnel of each service FR 45630, Aug. 29, 2001] designated by its Director to determine whether a claimant or payee has for- § 3.103 Procedural due process and feited the right to gratuitious benefits other rights. or to remit a prior forfeiture pursuant (a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA

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are ex parte in nature, and it is the ob- return a required eligibility ligation of VA to assist a claimant in verification report. developing the facts pertinent to the (iii) Evidence reasonably indicates claim and to render a decision which that a beneficiary is deceased. How- grants every benefit that can be sup- ever, in the event that VA has received ported in law while protecting the in- a death certificate, a terminal hospital terests of the Government. The provi- report verifying the death of a bene- sions of this section apply to all claims ficiary or a claim for VA burial bene- for benefits and relief, and decisions fits, no notice of termination (contem- thereon, within the purview of this poraneous or otherwise) will be re- part 3. quired. (b) The right to notice— (iv) An adverse action based upon a written and signed statement provided (1) General. Claimants and their rep- by the beneficiary to VA renouncing resentatives are entitled to notice of VA benefits (see § 3.106 on any decision made by VA affecting the renouncement). payment of benefits or the granting of (v) An adverse action based upon a relief. Such notice will clearly set written statement provided to VA by a forth the elements described under veteran indicating that he or she has paragraph (f) of this section, the right returned to active service, the nature to a hearing on any issue involved in of that service, and the date of reentry the claim as provided in paragraph (d) into service, with the knowledge or no- of this section, the right of representa- tice that receipt of active service pay tion, and the right, as well as the nec- precludes concurrent receipt of VA essary procedures and time limits to compensation or pension (see § 3.654 re- initiate a higher-level review, supple- garding active service pay). mental claim, or appeal to the Board of (vi) An adverse action based upon a Veterans’ Appeals. garnishment order issued under 42 (2) Advance notice and opportunity for U.S.C. 659(a). hearing. Except as otherwise provided in paragraph (b)(3) of this section, no (Authority: 38 U.S.C. 501(a)) award of compensation, pension or de- (4) Restoration of benefits. VA will re- pendency and indemnity compensation store retroactively benefits that were shall be terminated, reduced or other- reduced, terminated, or otherwise ad- wise adversely affected unless the ben- versely affected based on oral informa- eficiary has been notified of such ad- tion or statements if within 30 days of verse action and has been provided a the date on which VA issues the notifi- period of 60 days in which to submit cation of adverse action the bene- evidence for the purpose of showing ficiary or his or her fiduciary asserts that the adverse action should not be that the adverse action was based upon taken. information or statements that were (3) Exceptions. In lieu of advance no- inaccurate or upon information that tice and opportunity for a hearing, VA was not provided by the beneficiary or will send a written notice to the bene- his or her fiduciary. This will not pre- ficiary or his or her fiduciary at the clude VA from taking subsequent ac- same time it takes an adverse action tion that adversely affects benefits. under the following circumstances: (c) Submission of evidence—(1) General (i) An adverse action based solely on rule. VA will include in the record, any factual and unambiguous information evidence whether documentary, testi- or statements as to income, net worth, monial, or in other form, submitted by or dependency or marital status that the claimant in support of a pending the beneficiary or his or her fiduciary claim and any issue, contention, or ar- provided to VA in writing or orally gument a claimant may offer with re- (under the procedures set forth in spect to a claim, except as prescribed § 3.217(b)), with knowledge or notice in paragraph (c)(2) of this section and that such information would be used to § 3.2601(f). calculate benefit amounts. (2) Treatment of evidence received after (ii) An adverse action based upon the notice of a decision. The evidentiary beneficiary’s or fiduciary’s failure to record for a claim before the agency of

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original jurisdiction closes when VA judicative functions, or video- issues notice of a decision on the claim. conference capabilities, or, subject to The agency of original jurisdiction will available resources and solely at the not consider, or take any other action option of VA, at any other VA facility on evidence that is submitted by a or federal building at which suitable claimant, associated with the claims hearing facilities are available. VA will file, or constructively received by VA provide one or more employees who as described in paragraph (c)(2)(iii) of have original determinative authority this section, after notice of decision on of such issues to conduct the hearing a claim, and such evidence will not be and be responsible for establishment considered part of the record at the and preservation of the hearing record. time of any decision by the agency of Upon request, a claimant is entitled to original jurisdiction, except as de- a hearing in connection with proposed scribed in § 3.156(c) and under the fol- adverse actions before one or more VA lowing circumstances: employees having original determina- (i) Receipt of a complete claim. The tive authority who did not participate agency of original jurisdiction subse- in the proposed action. All expenses in- quently receives a complete applica- curred by the claimant in connection tion for a supplemental claim or initial with the hearing are the responsibility claim; or of the claimant. (ii) Board and higher-level review re- (2) The purpose of a hearing is to per- turns. A claim is pending readjudica- mit the claimant to introduce into the tion after identification of a duty to record, in person, any available evi- assist error (which includes an error re- dence which he or she considers rel- sulting from constructive receipt of evant and any arguments or conten- evidence prior to the notice of deci- tions with respect to the facts and ap- sion), during a higher-level review or plicable law which he or she may con- appeal to the Board of Veterans’ Ap- sider pertinent. All testimony will be peals. Those events reopen the record under oath or affirmation. The claim- and any evidence previously submitted ant is entitled to produce witnesses, to the agency of original jurisdiction but the claimant and witnesses must or associated with the claims file while be present. The agency of original ju- the record was closed will become part risdiction will not normally schedule a of the evidentiary record to be consid- hearing for the sole purpose of receiv- ered upon readjudication. ing argument from a representative. It (iii) Constructive receipt of VA treat- is the responsibility of the VA employment records. Records within the actual ees conducting the hearings to explain custody of the Veterans Health Admin- fully the issues and suggest the sub- istration are deemed constructively remission of evidence which the claimant ceived by the Veterans Benefits Admin- may have overlooked and which would istration at the time when the Vet- be of advantage to the claimant’s posi- erans Benefits Administration had tion. To assure clarity and complete- knowledge of the existence of said ness of the hearing record, questions records through information furnished which are directed to the claimant and by the claimant sufficient to locate to witnesses are to be framed to ex- those records (see 38 U.S.C. 5103A(c)). plore fully the basis for claimed enti- (d) The right to a hearing. (1) Upon re- tlement rather than with an intent to quest, a claimant is entitled to a hear- refute evidence or to discredit testi- ing on any issue involved in a claim mony. within the purview of part 3 of this (e) The right to representation. Subject chapter before VA issues notice of a de- to the provisions of §§ 14.626 through cision on an initial or supplemental 14.637 of this title, claimants are enti- claim. A hearing is not available in tled to representation of their choice connection with a request for higher- at every stage in the prosecution of a level review under § 3.2601. VA will pro- claim. vide the place of hearing in the VA (f) Notification of decisions. The claim- field office having original jurisdiction ant or beneficiary and his or her rep- over the claim, or at the VA office resentative will be notified in writing nearest the claimant’s home having ad- of decisions affecting the payment of

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benefits or granting of relief. Written ing one upon the other in the absence notification must include in the notice of clear and unmistakable error. letter or enclosures or a combination (c) Favorable findings. Any finding fa- thereof, all of the following elements: vorable to the claimant made by either (1) Identification of the issues adju- a VA adjudicator, as described in dicated; § 3.103(f)(4), or by the Board of Vet- (2) A summary of the evidence con- erans’ Appeals, as described in sidered; § 20.801(a) of this chapter, is binding on (3) A summary of the laws and regu- all subsequent agency of original juris- lations applicable to the claim; diction and Board of Veterans’ Appeals (4) A listing of any findings made by adjudicators, unless rebutted by evi- the adjudicator that are favorable to dence that identifies a clear and unmis- the claimant under § 3.104(c); takable error in the favorable finding. (5) For denied claims, identification For purposes of this section, a finding of the element(s) required to grant the means a conclusion either on a ques- claim(s) that were not met; tion of fact or on an application of law (6) If applicable, identification of the to facts made by an adjudicator con- criteria required to grant service concerning the issue(s) under review. nection or the next higher-level of compensation; [29 FR 1462, Jan. 29, 1964, as amended at 29 (7) An explanation of how to obtain FR 7547, June 12, 1964; 56 FR 65846, Dec. 19, or access evidence used in making the 1991; 66 FR 21874, May 2, 2001; 84 FR 167, Jan. decision; and 18, 2019] (8) A summary of the applicable re- § 3.105 Revision of decisions. view options under § 3.2500 available for the claimant to seek further review of The provisions of this section apply the decision. except where an award was based on an act of commission or omission by the (Authority:38 U.S.C. 501, 1115, 1506, 5104) payee, or with his or her knowledge [55 FR 13527, Apr. 11, 1990; 55 FR 17530, Apr. (§ 3.500(b)); there is a change in law or a 25, 1990, as amended at 55 FR 20148, May 15, Department of Veterans Affairs issue, 1990; 55 FR 25308, June 21, 1990; 57 FR 56993, or a change in interpretation of law or Dec. 2, 1992; 58 FR 16360, Mar. 26, 1993; 58 FR 59366, Nov. 9, 1993; 59 FR 6218, Feb. 10, 1994; 59 a Department of Veterans Affairs issue FR 6901, Feb. 14, 1994; 66 FR 56613, Nov. 9, (§ 3.114); or the evidence establishes 2001; 76 FR 52574, Aug. 23, 2011; 77 FR 23129, that service connection was clearly il- Apr. 18, 2012; 84 FR 166, Jan. 18, 2019] legal. The provisions with respect to the date of discontinuance of benefits § 3.104 Binding nature of decisions. are applicable to running awards. (a) Binding decisions. A decision of a Where the award has been suspended, VA rating agency is binding on all VA and it is determined that no additional field offices as to conclusions based on payments are in order, the award will the evidence on file at the time VA be discontinued effective date of last issues written notification in accord- payment. ance with 38 U.S.C. 5104. A binding (a)(1) Error in final decisions. Deci- agency decision is not subject to revisions are final when the underlying sion except by the Board of Veterans’ claim is finally adjudicated as provided Appeals, by Federal court order, or as in § 3.160(d). Final decisions will be ac- provided in §§ 3.105, 3.2500, and 3.2600. cepted by VA as correct with respect to (b) Binding administrative determina- the evidentiary record and the law that tions. Current determinations of line of existed at the time of the decision, in duty, character of discharge, relation- the absence of clear and unmistakable ship, dependency, domestic relations error. At any time after a decision is questions, homicide, and findings of final, the claimant may request, or VA fact of death or presumptions of death may initiate, review of the decision to made in accordance with existing in- determine if there was a clear and un- structions, and by application of the mistakable error in the decision. same criteria and based on the same Where evidence establishes such error, facts, by either an Adjudication activ- the prior decision will be reversed or ity or an Insurance activity are bind- amended.

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(i) Definition of clear and unmistakable (vii) Filing Requirements—(A) General. error. A clear and unmistakable error is A request for revision of a decision a very specific and rare kind of error. based on clear and unmistakable error It is the kind of error, of fact or of law, must be in writing, and must be signed that when called to the attention of by the requesting party or that party’s later reviewers compels the conclusion, authorized representative. The request to which reasonable minds could not must include the name of the claimant; differ, that the result would have been the name of the requesting party if manifestly different but for the error. other than the claimant; the applicable If it is not absolutely clear that a dif- Department of Veterans Affairs file ferent result would have ensued, the number; and the date of the decision to error complained of cannot be clear which the request relates. If the appli- and unmistakable. Generally, either cable decision involved more than one the correct facts, as they were known issue, the request must identify the at the time, were not before VA, or the specific issue, or issues, to which the statutory and regulatory provisions ex- request pertains. tant at the time were incorrectly ap- (B) Specific allegations required. The plied. request must set forth clearly and spe- (ii) Effective date of reversed or revised cifically the alleged clear and unmis- decisions. For the purpose of author- takable error, or errors, of fact or law izing benefits, the rating or other adju- in the prior decision, the legal or fac- dicative decision which constitutes a tual basis for such allegations, and why reversal or revision of a prior decision the result would have been manifestly on the grounds of clear and unmistak- different but for the alleged error. Non- able error has the same effect as if the specific allegations of failure to follow corrected decision had been made on regulations or failure to give due proc- the date of the reversed decision. Ex- ess, or any other general, non-specific cept as provided in paragraphs (d) and allegations of error, are insufficient to (e) of this section, where an award is satisfy the requirement of the previous reduced or discontinued because of ad- sentence. ministrative error or error in judg- (2) Error in binding decisions prior to ment, the provisions of § 3.500(b)(2) will final adjudication. Prior to the time apply. that a claim is finally adjudicated, pre- (iii) Record to be reviewed. Review for vious decisions which are binding will clear and unmistakable error in a prior be accepted as correct by the agency of final decision of an agency of original original jurisdiction, with respect to jurisdiction must be based on the evi- the evidentiary record and law existing dentiary record and the law that ex- at the time of the decision, unless the isted when that decision was made. The decision is clearly erroneous, after con- duty to assist in § 3.159 does not apply sidering whether any favorable findings to requests for revision based on clear may be reversed as provided in and unmistakable error. § 3.104(c). (iv) Change in interpretation. Clear (b) Difference of opinion. Whenever an and unmistakable error does not in- adjudicative agency is of the opinion clude the otherwise correct application that a revision or an amendment of a of a statute or regulation where, subse- previous decision is warranted on the quent to the decision being challenged, basis of the evidentiary record and law there has been a change in the inter- that existed at the time of the deci- pretation of the statute or regulation. sion, a difference of opinion being in- (v) Limitation on Applicability. Deci- volved rather than a clear and unmis- sions of an agency of original jurisdic- takable error, the proposed revision tion on issues that have been decided will be recommended to Central Office. on appeal by the Board or a court of However, a decision may be revised competent jurisdiction are not subject under § 3.2600 or § 3.2601 without being to revision under this subsection. recommended to Central Office. (vi) Duty to assist not applicable. For (c) Character of discharge. A deter- examples of situations that are not mination as to character of discharge clear and unmistakable error see 38 or line of duty which would result in CFR 20.1403(d). discontinued entitlement is subject to

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the provisions of paragraph (d) of this record of the contemplated action and section. furnished detailed reasons therefor, (d) Severance of service connection. and will be given 60 days for the pres- Subject to the limitations contained in entation of additional evidence to show §§ 3.114 and 3.957, service connection that compensation payments should be will be severed only where evidence es- continued at their present level. Unless tablishes that it is clearly and unmis- otherwise provided in paragraph (i) of takably erroneous (the burden of proof this section, if additional evidence is being upon the Government). (Where not received within that period, final service connection is severed because rating action will be taken and the of a change in or interpretation of a award will be reduced or discontinued law or Department of Veterans Affairs effective the last day of the month in issue, the provisions of § 3.114 are for which a 60-day period from the date of application.) A change in diagnosis notice to the beneficiary of the final may be accepted as a basis for sever- rating action expires. ance action if the examining physician or physicians or other proper medical (Authority: 38 U.S.C. 5112(b)(6)) authority certifies that, in the light of (f) Reduction in evaluation—pension. all accumulated evidence, the diag- Where a change in disability or em- nosis on which service connection was ployability warrants a reduction or dis- predicated is clearly erroneous. This continuance of pension payments cur- certification must be accompanied by a rently being made, a rating proposing summary of the facts, findings, and the reduction or discontinuance will be reasons supporting the conclusion. prepared setting forth all material When severance of service connection facts and reasons. The beneficiary will is considered warranted, a rating pro- be notified at his or her latest address posing severance will be prepared set- of record of the contemplated action ting forth all material facts and rea- and furnished detailed reasons there- sons. The claimant will be notified at for, and will be given 60 days for the his or her latest address of record of presentation of additional evidence to the contemplated action and furnished show that pension benefits should be detailed reasons therefor and will be continued at their present level. Unless given 60 days for the presentation of otherwise provided in paragraph (i) of additional evidence to show that serv- this section, if additional evidence is ice connection should be maintained. not received within that period, final Unless otherwise provided in paragraph rating action will be taken and the (i) of this section, if additional evi- award will be reduced or discontinued dence is not received within that pe- effective the last day of the month in riod, final rating action will be taken which the final rating action is ap- and the award will be reduced or dis- proved. continued, if in order, effective the last day of the month in which a 60-day pe- (Authority: 38 U.S.C. 5112(b)(5)) riod from the date of notice to the ben- (g) Reduction in evaluation—monetary eficiary of the final rating action ex- allowance under 38 U.S.C. chapter 18 for pires. certain individuals who are children of Vietnam veterans or children of veterans (Authority: 38 U.S.C. 5112(b)(6)) with covered service in Korea. Where a (e) Reduction in evaluation—compensa- reduction or discontinuance of a mone- tion. Where the reduction in evaluation tary allowance currently being paid of a service-connected disability or em- under 38 U.S.C. chapter 18 is considered ployability status is considered war- warranted, VA will notify the bene- ranted and the lower evaluation would ficiary at his or her latest address of result in a reduction or discontinuance record of the proposed reduction, fur- of compensation payments currently nish detailed reasons therefor, and being made, a rating proposing the re- allow the beneficiary 60 days to present duction or discontinuance will be pre- additional evidence to show that the pared setting forth all material facts monetary allowance should be contin- and reasons. The beneficiary will be no- ued at the present level. Unless other- tified at his or her latest address of wise provided in paragraph (i) of this

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section, if VA does not receive addi- quested, benefit payments shall be con- tional evidence within that period, it tinued at the previously established will take final rating action and reduce level pending a final determination the award effective the last day of the concerning the proposed action. month following 60 days from the date (2) Following the predetermination of notice to the beneficiary of the pro- procedures specified in this paragraph posed reduction. and paragraph (d), (e), (f), (g) or (h) of this section, whichever is applicable, (Authority: 38 U.S.C. 1805, 1815, 1821, 1832, final action will be taken. If a pre- 5112(b)(6)) determination hearing was not re- (h) Other reductions/discontinuances. quested or if the beneficiary failed Except as otherwise specified at without good cause to report for a § 3.103(b)(3) of this part, where a reduc- scheduled predetermination hearing, tion or discontinuance of benefits is the final action will be based solely warranted by reason of information re- upon the evidence of record. Examples ceived concerning income, net worth, of good cause include, but are not lim- dependency, or marital or other status, ited to, the illness or hospitalization of a proposal for the reduction or dis- the claimant or beneficiary, death of continuance will be prepared setting an immediate family member, etc. If a forth all material facts and reasons. predetermination hearing was con- The beneficiary will be notified at his ducted, the final action will be based or her latest address of record of the on evidence and testimony adduced at contemplated action and furnished de- the hearing as well as the other evi- tailed reasons therefor, and will be dence of record including any addi- given 60 days for the presentation of tional evidence obtained following the additional evidence to show that the hearing pursuant to necessary develop- benefits should be continued at their ment. Whether or not a predetermina- present level. Unless otherwise pro- tion hearing was conducted, a written vided in paragraph (i) of this section, if notice of the final action shall be additional evidence is not received within that period, final adverse action issued to the beneficiary and his or her will be taken and the award will be re- representative, setting forth the rea- duced or discontinued effective as spec- sons therefor and the evidence upon ified under the provisions of §§ 3.500 which it is based. Where a reduction or through 3.503 of this part. discontinuance of benefits is found warranted following consideration of (Authority: 38 U.S.C. 5112) any additional evidence submitted, the effective date of such reduction or dis- (i) Predetermination hearings. (1) In continuance shall be as follows: the advance written notice concerning (i) Where reduction or discontinu- proposed actions under paragraphs (d) through (h) of this section, the bene- ance was proposed under the provisions ficiary will be informed that he or she of paragraph (d) or (e) of this section, will have an opportunity for a pre- the effective date of final action shall determination hearing, provided that a be the last day of the month in which request for such a hearing is received a 60-day period from the date of notice by VA within 30 days from the date of to the beneficiary of the final action the notice. If a timely request is re- expires. ceived, VA will notify the beneficiary (ii) Where reduction or discontinu- in writing of the time and place of the ance was proposed under the provisions hearing at least 10 days in advance of of paragraphs (f) and (g) of this section, the scheduled hearing date. The 10 day the effective date of final action shall advance notice may be waived by be the last day of the month in which agreement between VA and the bene- such action is approved. ficiary or representative. The hearing (iii) Where reduction or discontinu- will be conducted by VA personnel who ance was proposed under the provisions did not participate in the proposed ad- of paragraph (h) of this section, the ef- verse action and who will bear the deci- fective date of final action shall be as sion-making responsibility. If a pre- specified under the provisions of §§ 3.500 determination hearing is timely re- through 3.503 of this part.

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(j) Supplemental claims and higher-level is filed within one year after the date review. VA may revise an earlier deci- that the Department of Veterans Af- sion denying benefits, if warranted, fairs receives a renouncement of that upon resolution of a supplemental benefit, such application shall not be claim under § 3.160(c) or higher-level re- treated as an original application and view under § 3.2601. benefits will be payable as if the renouncement had not occurred. (Authority: 38 U.S.C. 5112) CROSS REFERENCES: Effective dates. See (Authority: 38 U.S.C. 5306(c)) § 3.400. Reductions and discontinuances. See § 3.500. Protection; service connection. See (d) The renouncement of dependency § 3.957. and indemnity compensation by one beneficiary will not serve to increase [26 FR 1569, Feb. 24, 1961, as amended at 27 FR 11886, Dec. 1, 1962; 39 FR 17222, May 14, the rate payable to any other bene- 1974; 55 FR 13528, Apr. 11, 1990; 56 FR 65846, ficiary in the same class. Dec. 19, 1991; 57 FR 56993, Dec. 2, 1992; 62 FR (e) The renouncement of dependency 51278, Sept. 30, 1997; 66 FR 21874, May 2, 2001; and indemnity compensation by a sur- 67 FR 49586, July 31, 2002; 76 FR 4247, Jan. 25, viving spouse will not serve to vest 2011; 84 FR 167, Jan. 18, 2019] title to this benefit in children under the age of 18 years or to increase the § 3.106 Renouncement. rate payable to a child or children over (a) Any person entitled to pension, the age of 18 years. compensation, or dependency and indemnity compensation under any of [26 FR 1569, Feb. 24, 1961, as amended at 37 FR 5384, Mar. 15, 1972; 39 FR 17222, May 14, the laws administered by the Depart- 1974; 60 FR 18355, Apr. 11, 1995; 62 FR 5529, ment of Veterans Affairs may renounce Feb. 6, 1997] his or her right to that benefit but may not renounce less than all of the com- § 3.107 Awards where not all depend- ponent items which together comprise ents apply. the total amount of the benefit to Except as provided in § 3.251(a)(4), in which the person is entitled nor any any case where claim has not been filed fixed monetary amounts less than the by or on behalf of all dependents who full amount of entitlement. The may be entitled, the awards (original renouncement will be in writing over or amended) for those dependents who the person’s signature. Upon receipt of have filed claim will be made for all pe- such renouncement in the Department riods at the rates and in the same man- of Veterans Affairs, payment of such ner as though there were no other de- benefits and the right thereto will be pendents. However, if the file reflects terminated, and such person will be de- the existence of other dependents who nied any and all rights thereto from have not filed claim and there is poten- such filing. tial entitlement to benefits for a period prior to the date of filing claim, the (Authority: 38 U.S.C. 5306(a)) award to a person who has filed claim (b) The renouncement will not pre- will be made at the rate which would clude the person from filing a new ap- be payable if all dependents were re- plication for pension, compensation, or ceiving benefits. If at the expiration of dependency and indemnity compensa- the period allowed, claims have not tion at any future date. Such new ap- been filed for such dependents, the full plication will be treated as an original rate will be authorized for the first application, and no payments will be payee. made thereon for any period before the [29 FR 9564, July 15, 1964] date such new application is received in the Department of Veterans Affairs. § 3.108 State Department as agent of Department of Veterans Affairs. (Authority: 38 U.S.C. 5306(b)) Diplomatic and consular officers of (c) Notwithstanding the provisions of the Department of State are authorized paragraph (b) of this section, if a new to act as agents of the Department of application for pension or parents’ de- Veterans Affairs and therefore a com- pendency and indemnity compensation plete claim as set forth in § 3.160(a) or

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an intent to file a claim as set forth in tensions are separately appealable § 3.155(b) or evidence submitted in sup- issues. port of a claim filed in a foreign country will be considered as filed in the (Authority: 38 U.S.C. 501) Department of Veterans Affairs as of [26 FR 1569, Feb. 24, 1961, as amended at 26 the date of receipt by the State Depart- FR 2231, Mar. 16, 1961; 29 FR 1462, Jan. 29, ment representative. 1964; 30 FR 133, Jan. 7, 1965; 55 FR 13529, Apr. 11, 1990; 79 FR 57695, Sept. 25, 2014] CROSS REFERENCE: Evidence from foreign countries. See § 3.202. § 3.110 Computation of time limit. [26 FR 1569, Feb. 24, 1961, as amended at 79 (a) In computing the time limit for FR 57695, Sept. 25, 2014] any action required of a claimant or § 3.109 Time limit. beneficiary, including the filing of claims or evidence requested by VA, (a) Notice of time limit for filing evi- the first day of the specified period will dence. (1) If a claimant’s application is be excluded and the last day included. incomplete, the claimant will be noti- This rule is applicable in cases in fied of the evidence necessary to com- which the time limit expires on a plete the application. If the evidence is workday. Where the time limit would not received within 1 year from the date of such notification, pension, com- expire on a Saturday, Sunday, or holi- pensation, or dependency and indem- day, the next succeeding workday will nity compensation may not be paid by be included in the computation. reason of that application (38 U.S.C. (b) The first day of the specified period 5103(a)). Information concerning the referred to in paragraph (a) of this sec- whereabouts of a person who has filed tion shall be the date of mailing of no- claim is not considered evidence. tification to the claimant or bene- (2) The provisions of this paragraph ficiary of the action required and the are applicable to original initial appli- time limit therefor. The date of the cations, to applications for increased letter of notification shall be consid- benefits by reason of increased dis- ered the date of mailing for purposes of ability, age, or the existence of a de- computing time limits. As to appeals, pendent, and to applications for re- see §§ 19.52, 20.203, and 20.110 of this opening or resumption of payments. If chapter. substantiating evidence is required with respect to the veracity of a wit- (Authority: 38 U.S.C. 501) ness or the authenticity of documen- [55 FR 13529, Apr. 11, 1990, as amended at 58 tary evidence timely filed, there will FR 32443, June 10, 1993; 84 FR 168, Jan. 18, be allowed for the submission of such 2019] evidence 1 year from the date of the request therefor. However, any evidence § 3.111 [Reserved] to enlarge the proofs and evidence originally submitted is not so included. § 3.112 Fractions of one cent. (b) Extension of time limit. Time limits In all cases where the amount to be within which claimants or bene- paid under any award involves a frac- ficiaries are required to act to perfect a tion of a cent, the fractional part will claim or challenge an adverse VA deci- be excluded. sion may be extended for good cause shown. Where an extension is requested [26 FR 1570, Feb. 24, 1961] after expiration of a time limit, the action required of the claimant or bene- § 3.114 Change of law or Department ficiary must be taken concurrent with of Veterans Affairs issue. or prior to the filing of a request for (a) Effective date of award. Where pen- extension of the time limit, and good sion, compensation, dependency and in- cause must be shown as to why the re- demnity compensation, or a monetary quired action could not have been allowance under 38 U.S.C. chapter 18 taken during the original time period for an individual who is a child of a and could not have been taken sooner Vietnam veteran or child of a veteran than it was. Denials of time limit ex-

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with covered service in Korea is award- in law or a Department of Veterans Af- ed or increased pursuant to a liberal- fairs issue, or because of a change in izing law, or a liberalizing VA issue ap- interpretation of a law or Department proved by the Secretary or by the Sec- of Veterans Affairs issue, the payee retary’s direction, the effective date of will be notified at his or her latest ad- such award or increase shall be fixed in dress of record of the contemplated ac- accordance with the facts found, but tion and furnished detailed reasons shall not be earlier than the effective therefor, and will be given 60 days for date of the act or administrative issue. the presentation of additional evi- Where pension, compensation, depend- dence. If additional evidence is not re- ency and indemnity compensation, or a ceived within that period, the award monetary allowance under 38 U.S.C. will be reduced or discontinued effec- chapter 18 for an individual who is a tive the last day of the month in which child of a Vietnam veteran or child of the 60–day period expired. a veteran with covered service in Korea is awarded or increased pursuant to a (Authority: 38 U.S.C. 5112(b)(6)) liberalizing law or VA issue which be- [27 FR 11886, Dec. 1, 1962, as amended at 55 came effective on or after the date of FR 13529, Apr. 11, 1990; 62 FR 17706, Apr. 11, its enactment or issuance, in order for 1997; 65 FR 35282, June 2, 2000; 67 FR 49586, a claimant to be eligible for a retro- July 31, 2002; 76 FR 4247, Jan. 25, 2011; 84 FR 168, Jan. 18, 2019; 84 FR 4336, Feb. 15, 2019] active payment under the provisions of this paragraph the evidence must show § 3.115 Access to financial records. that the claimant met all eligibility criteria for the liberalized benefit on (a) The Secretary of Veterans Affairs the effective date of the liberalizing may request from a financial institu- law or VA issue and that such eligi- tion the names and addresses of its cus- bility existed continuously from that tomers. Each such request, however, date to the date of claim or adminis- shall include a certification that the trative determination of entitlement. information is necessary for the proper The provisions of this paragraph are administration of benefits programs applicable to original and supple- under the laws administered by the mental claims as well as claims for in- Secretary, and cannot be obtained by a crease. reasonable search of records and infor- (1) If a claim is reviewed on the ini- mation of the Department of Veterans tiative of VA within 1 year from the ef- Affairs. fective date of the law or VA issue, or (b) Information received pursuant to at the request of a claimant received a request referred to in paragraph (a) of within 1 year from that date, benefits this section shall not be used for any may be authorized from the effective purpose other than the administration date of the law or VA issue. of benefits programs under the laws ad- (2) If a claim is reviewed on the ini- ministered by the Secretary if the dis- tiative of VA more than 1 year after closure of that information would oth- the effective date of the law or VA erwise be prohibited by any provision issue, benefits may be authorized for a of the Right to Financial Privacy Act period of 1 year prior to the date of ad- of 1978 (12 U.S.C. 3401 through 3422). ministrative determination of entitle- (Authority: 38 U.S.C. 5319) ment. [58 FR 32445, June 10, 1993] (3) If a claim is reviewed at the request of the claimant more than 1 year CLAIMS after the effective date of the law or VA issue, benefits may be authorized § 3.150 Forms to be furnished. for a period of 1 year prior to the date (a) Upon request made in person or in of receipt of such request. writing by any person applying for benefits under the laws administered by (Authority: 38 U.S.C. 1805, 1815, 1821, 1832, the Department of Veterans Affairs, 5110(g)) the appropriate application form will (b) Discontinuance of benefits. Where be furnished. the reduction or discontinuance of an award is in order because of a change (Authority: 38 U.S.C. 5102)

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(b) Upon receipt of notice of death of specific entitlement will be adjudicated a veteran, the appropriate application and is considered a separate issue for form will be forwarded for execution by purposes of the review options pre- or on behalf of any dependent who has scribed in § 3.2500. A single decision by apparent entitlement to pension, com- an agency of original jurisdiction may pensation, or dependency and indem- adjudicate multiple issues in this re- nity compensation. If it is not indi- spect, whether expressly claimed or de- cated that any person would be enti- termined by VA to be reasonably with- tled to such benefits, but there is pay- in the scope of the application as pre- able an accrued benefit not paid during scribed in § 3.155(d)(2). VA will issue a the veteran’s lifetime, the appropriate decision that addresses each such iden- application form will be forwarded to tified issue within a claim. Upon re- the preferred dependent. Notice of the ceipt of notice of a decision, a claimant time limit will be included in letters may elect any of the applicable review forwarding applications for benefits. options prescribed in § 3.2500 for each CROSS REFERENCE: Extension of time limit. issue adjudicated. See § 3.109(b). (2) With respect to service-connected disability compensation, an issue for [26 FR 1570, Feb. 14, 1961, as amended at 30 FR 133, Jan. 7, 1965; 79 FR 57695, Sept. 25, purposes of paragraph (c)(1) of this sec- 2014] tion is defined as entitlement to compensation for a particular disability. § 3.151 Claims for disability benefits. For example, if a decision adjudicates (a) General. A specific claim in the service-connected disability compensa- form prescribed by the Secretary must tion for both a knee condition and an be filed in order for benefits to be paid ankle condition, compensation for each to any individual under the laws ad- condition is a separate entitlement or ministered by VA. (38 U.S.C. 5101(a)). A issue for which a different review op- claim by a veteran for compensation tion may be elected. However, different may be considered to be a claim for review options may not be selected for pension; and a claim by a veteran for specific components of the knee dis- pension may be considered to be a ability claim, such as ancillary bene- claim for compensation. The greater fits, whether a knee injury occurred in benefit will be awarded, unless the service, or whether a current knee con- claimant specifically elects the lesser dition resulted from a service-con- benefit. (See scope of claim, nected injury or condition. § 3.155(d)(2); complete claim, § 3.160(a); (d) Evidentiary record. The evi- supplemental claims, § 3.2501(b)). dentiary record before the agency of (b) Retroactive disability pension original jurisdiction for an initial or claims. Where disability pension enti- supplemental claim includes all evi- tlement is established based on a claim dence received by VA before VA issues received by VA on or after October 1, notice of a decision on the claim. Once 1984, the pension award may not be ef- the agency of original jurisdiction fective prior to the date of receipt of issues notice of a decision on a claim, the pension claim unless the veteran the evidentiary record closes as de- specifically claims entitlement to ret- scribed in § 3.103(c)(2) and VA no longer roactive benefits. The claim for retro- has a duty to assist in gathering evi- activity may be filed separately or in- dence under § 3.159. (See § 3.155(b), sub- cluded in the claim for disability pen- mission of evidence). sion, but it must be received by VA (Authority: 38 U.S.C 5110(b)(3)) within one year from the date on which the veteran became permanently and CROSS REFERENCE: Intent to file a claim. totally disabled. Additional require- See § 3.155(b). ments for entitlement to a retroactive [50 FR 25981, June 24, 1985, as amended at 79 pension award are contained in FR 57695, Sept. 25, 2014; 84 FR 168, Jan. 18, § 3.400(b) of this part. 2019] (c) Issues within a claim. (1) To the extent that a complete claim application § 3.152 Claims for death benefits. encompasses a request for more than (a) A specific claim in the form pre- one determination of entitlement, each scribed by the Secretary (or jointly

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with the Commissioner of Social Secu- dren for any period prior to the date of rity, as prescribed by § 3.153) must be receipt of a new claim. filed in order for death benefits to be (4) Where payments of pension, com- paid to any individual under the laws pensation or dependency and indem- administered by VA. (See § 3.400(c) con- nity compensation to a surviving cerning effective dates of awards.) spouse have been discontinued because of remarriage or death, or a child be- (Authority: 38 U.S.C. 5101(a)) comes eligible for dependency and in- (b)(1) A claim by a surviving spouse demnity compensation by reason of at- or child for compensation or depend- taining the age of 18 years, and any ency and indemnity compensation will necessary evidence is submitted within also be considered to be a claim for 1 year from date of request, an award death pension and accrued benefits, for the child or children named in the and a claim by a surviving spouse or surviving spouse’s claim will be made child for death pension will be consid- on the basis of the surviving spouse’s ered to be a claim for death compensa- claim having been converted to a claim tion or dependency and indemnity com- on behalf of the child. Otherwise, pay- pensation and accrued benefits. ments may not be made for any period (Authority: 38 U.S.C. 5101(b)(1)) prior to the date of receipt of a new claim. (2) A claim by a parent for compensation or dependency and indemnity com- (Authority: 38 U.S.C 501) pensation will also be considered to be CROSS REFERENCES: State Department as a claim for accrued benefits. agent of Department of Veterans Affairs. See § 3.108. Change in status of dependents. See (Authority: 38 U.S.C. 5101(b)(2)) § 3.651. (c)(1) Where a child’s entitlement to [50 FR 25981, June 24, 1985, as amended at 71 dependency and indemnity compensa- FR 44918, Aug. 8, 2006] tion arises by reason of termination of a surviving spouse’s right to depend- § 3.153 Claims filed with Social Secu- ency and indemnity compensation or rity. by reason of attaining the age of 18 An application on a form jointly pre- years, a claim will be required. (38 scribed by the Secretary and the Com- U.S.C. 5110(e).) (See paragraph (c)(4) of missioner of Social Security filed with this section.) Where the award to the the Social Security Administration on surviving spouse is terminated by rea- or after January 1, 1957, will be consid- son of her or his death, a claim for the ered a claim for death benefits, and to child will be considered a claim for any have been received in the Department accrued benefits which may be payable. of Veterans Affairs as of the date of re- (2) A claim filed by a surviving spouse who does not have entitlement ceipt in Social Security Administra- will be accepted as a claim for a child tion. The receipt of such an application or children in her or his custody named (or copy thereof) by the Department of in the claim. Veterans Affairs will not preclude a re- (3) Where a claim of a surviving quest for any necessary evidence. spouse is disallowed for any reason (Authority: 38 U.S.C. 5105) whatsoever and where evidence requested in order to determine entitle- [26 FR 1570, Feb. 24, 1961, as amended at 71 ment from a child or children named in FR 44918, Aug. 8, 2006] the surviving spouse’s claim is sub- § 3.154 Injury due to hospital treat- mitted within 1 year from the date of ment, etc. request, requested either before or after disallowance of the surviving Claimants must file a complete claim spouse’s claim, an award for the child on the appropriate application form or children will be made as though the prescribed by the Secretary when ap- disallowed claim had been filed solely plying for benefits under 38 U.S.C. 1151 on their behalf. Otherwise, payments and 38 CFR 3.361. See §§ 3.151, 3.160(a), may not be made for the child or chil- and 3.400(i) concerning effective dates

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of awards; see § 3.155(b) regarding in- sought within 1 year of receipt of the tent to file the appropriate application intent to file a claim, VA will consider form. the complete claim filed as of the date the intent to file a claim was received. (Authority: 38 U.S.C. 501 and 1151.) (1) An intent to file a claim can be CROSS REFERENCE: Effective Dates. See submitted in one of the following three § 3.400(i). Disability or death due to hos- ways: pitalization, etc. See §§ 3.358, 3.361 and 3.800. (i) Saved electronic application. [79 FR 57695, Sept. 25, 2014] When an application otherwise meeting the requirements of this paragraph (b) § 3.155 How to file a claim. is electronically initiated and saved in The following paragraphs describe a claims-submission tool within a VA the manner and methods in which a web-based electronic claims applica- claim can be initiated and filed. The tion system prior to filing of a com- provisions of this section are applica- plete claim, VA will consider that ap- ble to all claims governed by part 3, plication to be an intent to file a with the exception that paragraph (b) claim. of this section, regarding intent to file (ii) Written intent on prescribed in- a claim, does not apply to supple- tent to file a claim form. The submis- mental claims. sion to an agency of original jurisdic- (a) Request for an application for bene- tion of a signed and dated intent to file fits. A claimant, his or her duly author- a claim, on the form prescribed by the ized representative, a Member of Con- Secretary for that purpose, will be ac- gress, or some person acting as next cepted as an intent to file a claim. friend of a claimant who is not of full (iii) Oral intent communicated to age or capacity, who indicates a desire designated VA personnel and recorded to file for benefits under the laws ad- in writing. An oral statement of intent ministered by VA, by a communication to file a claim will be accepted if it is or action, to include an electronic mail directed to a VA employee designated that is transmitted through VA’s elec- to receive such a communication, the tronic portal or otherwise, that does VA employee receiving this informa- not meet the standards of a complete tion follows the provisions set forth in claim is considered a request for an ap- § 3.217(b), and the VA employee docu- plication form for benefits under ments the date VA received the claim- § 3.150(a). Upon receipt of such a com- ant’s intent to file a claim in the munication or action, the Secretary claimant’s records. shall notify the claimant and the (2) An intent to file a claim must claimant’s representative, if any, of identify the general benefit (e.g., com- the information necessary to complete pensation, pension), but need not iden- the application form or form prescribed tify the specific benefit claimed or any by the Secretary. medical condition(s) on which the (b) Intent to file a claim. A claimant, claim is based. To the extent a claim- his or her duly authorized representa- ant provides this or other extraneous tive, a Member of Congress, or some information on the designated form person acting as next friend of claim- referenced in paragraph (b)(1)(ii) of this ant who is not of full age or capacity section that the form does not solicit, may indicate a claimant’s desire to file the provision of such information is of a claim for benefits by submitting an no effect other than that it is added to intent to file a claim to VA. An intent the file for appropriate consideration to file a claim must provide sufficient as evidence in support of a complete identifiable or biographical informa- claim if filed. In particular, if a claim- tion to identify the claimant. Upon re- ant identifies specific medical condi- ceipt of the intent to file a claim, VA tion(s) on which the claim is based in will furnish the claimant with the ap- an intent to file a claim, this extra- propriate application form prescribed neous information does not convert the by the Secretary. If VA receives a com- intent to file a claim into a complete plete application form prescribed by claim or a substantially complete ap- the Secretary, as defined in paragraph plication. Extraneous information pro- (a) of § 3.160, appropriate to the benefit vided in an oral communication under

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paragraph (b)(1)(iii) of this section is of tion necessary to complete the applica- no effect and generally will not be re- tion form prescribed by the Secretary. corded in the record of the claimant’s If a complete claim is submitted within intent to file. 1 year of receipt of such incomplete ap- (3) Upon receipt of an intent to file a plication form prescribed by the Sec- claim, the Secretary shall notify the retary, VA will consider it as filed as of claimant and the claimant’s represent- the date VA received the incomplete ative, if any, of the information nec- application form prescribed by the Sec- essary to complete the appropriate ap- retary that did not meet the standards plication form prescribed by the Sec- of a complete claim. See § 3.160(a) for retary. Complete Claim. (4) If an intent to file a claim is not (d) Claims.—(1) Requirement for com- submitted in the form required by plete claim and date of claim. A complete paragraph (b)(1) of this section or a claim is required for all types of complete claim is not filed within 1 claims, and will generally be consid- year of the receipt of the intent to file ered filed as of the date it was received a claim, VA will not take further ac- by VA for an evaluation or award of tion unless a new claim or a new intent benefits under the laws administered to file a claim is received. by the Department of Veterans Affairs. (5) An intent to file a claim received (i) Supplemental claims. Upon receipt from a service organization, an attor- of a communication indicating a belief ney, or agent indicating a represented in entitlement to benefits that is sub- claimant’s intent to file a claim may mitted in writing or electronically on a not be accepted if a power of attorney supplemental claim form prescribed by was not executed at the time the com- the Secretary that is not complete as munication was written. VA will only defined in § 3.160(a) of this section, the accept an oral intent to file from a Secretary shall notify the claimant service organization, an attorney, or and the claimant’s representative, if agent if a power of attorney is of any, of the information necessary to record at the time the oral commu- complete the application form pre- nication is received by the designated scribed by the Secretary. If VA re- VA employee. ceives a complete claim within 60 days (6) VA will not recognize more than of notice by VA that an incomplete one intent to file concurrently for the claim was filed, it will be considered same benefit (e.g., compensation, pen- filed as of the date of receipt of the in- sion). If an intent to file has not been complete claim (see § 3.2501). followed by a complete claim, a subse- (ii) For other types of claims. If VA re- quent intent to file regarding the same ceives a complete claim within 1 year benefit received within 1 year of the of the filing of an intent to file a claim prior intent to file will have no effect. that meets the requirements of para- If, however, VA receives an intent to graph (b) of this section, it will be con- file followed by a complete claim and sidered filed as of the date of receipt of later another intent to file for the the intent to file a claim. Only one same benefit is submitted within 1 year complete claim for a benefit (e.g., com- of the previous intent to file, VA will pensation, pension) may be associated recognize the subsequent intent to file with each intent to file a claim for that to establish an effective date for any benefit, though multiple issues may be award granted for the next complete contained within a complete claim. In claim, provided it is received within 1 the event multiple complete claims for year of the subsequent intent to file. a benefit are filed within 1 year of an (c) Incomplete application form. Upon intent to file a claim for that benefit, receipt of a communication indicating only the first claim filed will be associ- a belief in entitlement to benefits that ated with the intent to file a claim. In is submitted on a paper application the event that VA receives both an inform prescribed by the Secretary that tent to file a claim and an incomplete is not complete as defined in § 3.160(a) application form before the complete of this section, the Secretary shall no- claim as defined in § 3.160(a) is filed, the tify the claimant and the claimant’s complete claim will be considered filed representative, if any, of the informa- as of the date of receipt of whichever

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was filed first provided it is perfected before agency adjudicators. Material within the necessary timeframe, but in evidence means existing evidence that, no event, will the complete claim be by itself or when considered with pre- considered filed more than one year vious evidence of record, relates to an prior to the date of receipt of the com- unestablished fact necessary to sub- plete claim. stantiate the claim. New and material (2) Scope of claim. Once VA receives a evidence can be neither cumulative nor complete claim, VA will adjudicate as redundant of the evidence of record at part of the claim entitlement to any the time of the last prior final denial of ancillary benefits that arise as a result the claim sought to be reopened, and of the adjudication decision (e.g., enti- must raise a reasonable possibility of tlement to 38 U.S.C. Chapter 35 De- substantiating the claim. pendents’ Educational Assistance benefits, entitlement to special monthly (Authority: 38 U.S.C. 501, 5103A(f), 5108) compensation under 38 CFR 3.350, enti- (b) Pending legacy claims not under the tlement to adaptive automobile allow- modernized review system.New and mate- ance, etc.). The claimant may, but need rial evidence received prior to the expi- not, assert entitlement to ancillary ration of the appeal period, or prior to benefits at the time the complete the appellate decision if a timely ap- claim is filed. VA will also consider all peal has been filed (including evidence lay and medical evidence of record in received prior to an appellate decision order to adjudicate entitlement to ben- and referred to the agency of original efits for the claimed condition as well jurisdiction by the Board of Veterans as entitlement to any additional bene- Appeals without consideration in that fits for complications of the claimed decision in accordance with the provi- condition, including those identified by sions of § 20.1304(b)(1) of this chapter), the rating criteria for that condition in will be considered as having been filed 38 CFR Part 4, VA Schedule for Rating in connection with the claim which Disabilities. VA’s decision on an issue was pending at the beginning of the ap- within a claim implies that VA has de- peal period. termined that evidence of record does not support entitlement for any other (Authority: 38 U.S.C. 501) issues that are reasonably within the scope of the issues addressed in that (c) Service department records. (1) Not- decision. VA’s decision that addresses withstanding any other section in this all outstanding issues enumerated in part, at any time after VA issues a de- the complete claim implies that VA cision on a claim, if VA receives or as- has determined evidence of record does sociates with the claims file relevant not support entitlement for any other official service department records issues that are reasonably within the that existed and had not been associ- scope of the issues enumerated in the ated with the claims file when VA first complete claim. decided the claim, VA will reconsider the claim, notwithstanding paragraph CROSS REFERENCE: Complete claim. See (a) of this section. Such records in- § 3.160(a). Effective dates. See § 3.400. clude, but are not limited to: [79 FR 57695, Sept. 25, 2014, as amended at 84 (i) Service records that are related to FR 168, Jan. 18, 2019] a claimed in-service event, injury, or disease, regardless of whether such § 3.156 New evidence. records mention the veteran by name, New evidence is evidence not pre- as long as the other requirements of viously part of the actual record before paragraph (c) of this section are met; agency adjudicators. (ii) Additional service records for- (a) New and material evidence. For warded by the Department of Defense claims to reopen decided prior to the or the service department to VA any effective date provided in § 19.2(a), the time after VA’s original request for following standards apply. A claimant service records; and may reopen a finally adjudicated leg- (iii) Declassified records that could acy claim by submitting new and mate- not have been obtained because the rial evidence. New evidence is evidence records were classified when VA de- not previously part of the actual record cided the claim.

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(2) Paragraph (c)(1) of this section mental claim or for the purpose of de- does not apply to records that VA termining continued entitlement is not could not have obtained when it de- furnished within 1 year after the date cided the claim because the records did of request, the claim will be considered not exist when VA decided the claim, abandoned. After the expiration of 1 or because the claimant failed to pro- year, further action will not be taken vide sufficient information for VA to unless a new claim is received. Should identify and obtain the records from the right to benefits be finally estab- the respective service department, the lished, pension, compensation, depend- Joint Services Records Research Cen- ency and indemnity compensation, or ter, or from any other official source. monetary allowance under the provi- (3) An award made based all or in sions of 38 U.S.C. chapter 18 based on part on the records identified by para- such evidence shall commence not ear- graph (c)(1) of this section is effective lier than the date of filing the new on the date entitlement arose or the claim. date VA received the previously decided claim, whichever is later, or such (Authority: 38 U.S.C. 501) other date as may be authorized by the (b) Department of Veterans Affairs ex- provisions of this part applicable to the aminations. Where the veteran fails previously decided claim. without adequate reason to respond to (4) A retroactive evaluation of dis- an order to report for Department of ability resulting from disease or injury Veterans Affairs examination within 1 subsequently service connected on the year from the date of request and pay- basis of the new evidence from the ments have been discontinued, the service department must be supported claim for such benefits will be consid- adequately by medical evidence. Where ered abandoned. such records clearly support the as- (c) Disappearance. Where payments of signment of a specific rating over a pension, compensation, dependency and part or the entire period of time in- indemnity compensation, or monetary volved, a retroactive evaluation will be allowance under the provisions of 38 assigned accordingly, except as it may U.S.C. chapter 18 have not been made be affected by the filing date of the or have been discontinued because a original claim. payee’s present whereabouts is unknown, payments will be resumed ef- (Authority: 38 U.S.C. 501(a)) fective the day following the date of (d) New and relevant evidence. On or last payment if entitlement is other- after the effective date provided in wise established, upon receipt of a § 19.2(a), a claimant may file a supple- valid current address. mental claim as prescribed in § 3.2501. If new and relevant evidence, as defined CROSS REFERENCES: Periodic certification of continued eligibility. See § 3.652. Failure in § 3.2501(a)(1), is presented or secured to report for VA examination. See § 3.655. with respect to the supplemental Disappearance of veteran. See § 3.656. claim, the agency of original jurisdiction will readjudicate the claim taking [27 FR 11887, Dec. 1, 1962, as amended at 28 FR 13362, Dec. 10, 1963; 52 FR 43063, Nov. 9, into consideration all of the evidence 1987; 62 FR 51278, Sept. 30, 1997; 67 FR 49586, of record. July 31, 2002; 84 FR 169, Jan. 18, 2019] CROSS REFERENCES: Effective dates—general. See § 3.400. Correction of military § 3.159 Department of Veterans Affairs records. See § 3.400(g). assistance in developing claims. [27 FR 11887, Dec. 1, 1962, as amended at 55 (a) Definitions. For purposes of this FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, section, the following definitions 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, apply: Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006; 84 FR (1) Competent medical evidence means 169, Jan. 18, 2019; 84 FR 4336, Feb. 15, 2019] evidence provided by a person who is qualified through education, training, § 3.158 Abandoned claims. or experience to offer medical diag- (a) General. Except as provided in noses, statements, or opinions. Com- § 3.652, where evidence requested in con- petent medical evidence may also nection with an initial claim or supple- mean statements conveying sound

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medical principles found in medical tice’’) In the notice, VA will inform the treatises. It would also include state- claimant which information and evi- ments contained in authoritative dence, if any, that the claimant is to writings such as medical and scientific provide to VA and which information articles and research reports or anal- and evidence, if any, that VA will at- yses. tempt to obtain on behalf of the claim- (2) Competent lay evidence means any ant. The information and evidence that evidence not requiring that the pro- the claimant is informed that the ponent have specialized education, claimant is to provide must be pro- training, or experience. Lay evidence is vided within one year of the date of the competent if it is provided by a person notice. If the claimant has not re- who has knowledge of facts or cir- sponded to the notice within 30 days, cumstances and conveys matters that VA may decide the claim prior to the can be observed and described by a lay expiration of the one-year period based person. on all the information and evidence (3) Substantially complete application contained in the file, including infor- means an application containing: mation and evidence it has obtained on (i) The claimant’s name; behalf of the claimant and any VA (ii) His or her relationship to the vet- medical examinations or medical opin- eran, if applicable; ions. If VA does so, however, and the (iii) Sufficient service information claimant subsequently provides the infor VA to verify the claimed service, if formation and evidence within one applicable; year of the date of the notice in accord- (iv) The benefit sought and any med- ance with the requirements of para- ical condition(s) on which it is based; graph (b)(4) of this section, VA must (v) The claimant’s signature; and readjudicate the claim. (vi) In claims for nonservice-connected disability or death pension and (Authority: 38 U.S.C. 5103) parents’ dependency and indemnity (2) If VA receives an incomplete ap- compensation, a statement of income; plication for benefits, it will notify the (vii) In supplemental claims, identi- claimant of the information necessary fication or inclusion of potentially new to complete the application and will evidence (see § 3.2501); defer assistance until the claimant sub- (viii) For higher-level reviews, identi- mits this information. fication of the date of the decision for which review is sought. (Authority: 38 U.S.C. 5102(b), 5103A(3)) (4) For purposes of paragraph (c)(4)(i) of this section, event means one or (3) No duty to provide the notice de- more incidents associated with places, scribed in paragraph (b)(1) of this sec- types, and circumstances of service tion arises: giving rise to disability. (i) Upon receipt of a supplemental (5) Information means non-evi- claim under § 3.2501 within one year of dentiary facts, such as the claimant’s the date VA issues notice of a prior de- Social Security number or address; the cision; name and military unit of a person who (ii) Upon receipt of a request for served with the veteran; or the name higher-level review under § 3.2601; and address of a medical care provider (iii) Upon receipt of a Notice of Dis- who may have evidence pertinent to agreement under § 20.202 of this chap- the claim. ter; or (b) VA’s duty to notify claimants of (iv) When, as a matter of law, entitle- necessary information or evidence. (1) Ex- ment to the benefit claimed cannot be cept as provided in paragraph (3) of this established. section, when VA receives a complete or substantially complete initial or (Authority: 38 U.S.C. 5103(a), 5103A(a)(2)) supplemental claim, VA will notify the (4) After VA has issued a notice of de- claimant of any information and med- cision, submission of information and ical or lay evidence that is necessary evidence substantiating a claim must to substantiate the claim (hereafter in be accomplished through the proper fil- this paragraph referred to as the ‘‘no- ing of a review option in accordance

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with § 3.2500 on a form prescribed by the records are not received, at least the Secretary. New and relevant evi- one follow-up request to the new source dence may be submitted in connection or an additional request to the original with either the filing of a supplemental source. claim under § 3.2501 or the filing of a (i) The claimant must cooperate fully Notice of Disagreement with the Board with VA’s reasonable efforts to obtain under 38 CFR 20.202, on forms pre- relevant records from non-Federal scribed by the Secretary, and election agency or department custodians. The of a Board docket that permits the fil- claimant must provide enough infor- ing of new evidence (see 38 CFR 20.302 mation to identify and locate the exist- and 20.303). ing records, including the person, com- (c) VA’s duty to assist claimants in ob- pany, agency, or other custodian hold- taining evidence. VA has a duty to as- ing the records; the approximate time sist claimants in obtaining evidence to frame covered by the records; and, in substantiate all substantially complete the case of medical treatment records, initial and supplemental claims, and the condition for which treatment was when a claim is returned for readjudi- provided. cation by a higher-level adjudicator or (ii) If necessary, the claimant must the Board after identification of a duty authorize the release of existing to assist error on the part of the agen- records in a form acceptable to the per- cy of original jurisdiction, until the son, company, agency, or other custo- time VA issues notice of a decision on dian holding the records. a claim or returned claim. VA will make reasonable efforts to help a (Authority: 38 U.S.C. 5103A(b)) claimant obtain evidence necessary to (2) Obtaining records in the custody of substantiate the claim. VA will not a Federal department or agency. VA will pay any fees charged by a custodian to make as many requests as are nec- provide records requested. When a essary to obtain relevant records from claim is returned for readjudication by a Federal department or agency. These a higher-level adjudicator or the Board records include but are not limited to after identification of a duty to assist military records, including service error, the agency of original jurisdic- medical records; medical and other tion has a duty to correct any other records from VA medical facilities; duty to assist errors not identified by records from non-VA facilities pro- the higher-level adjudicator or the viding examination or treatment at VA Board. expense; and records from other Fed- (1) Obtaining records not in the custody eral agencies, such as the Social Secu- of a Federal department or agency. VA rity Administration. VA will end its ef- will make reasonable efforts to obtain forts to obtain records from a Federal relevant records not in the custody of a department or agency only if VA con- Federal department or agency, to includes that the records sought do not clude records from State or local gov- exist or that further efforts to obtain ernments, private medical care pro- those records would be futile. Cases in viders, current or former employers, which VA may conclude that no fur- and other non-Federal governmental ther efforts are required include those sources. Such reasonable efforts will in which the Federal department or generally consist of an initial request agency advises VA that the requested for the records and, if the records are records do not exist or the custodian not received, at least one follow-up re- does not have them. quest. A follow-up request is not re- (i) The claimant must cooperate fully quired if a response to the initial re- with VA’s reasonable efforts to obtain quest indicates that the records sought relevant records from Federal agency do not exist or that a follow-up request or department custodians. If requested for the records would be futile. If VA by VA, the claimant must provide receives information showing that sub- enough information to identify and lo- sequent requests to this or another cate the existing records, including the custodian could result in obtaining the custodian or agency holding the records sought, then reasonable efforts records; the approximate time frame will include an initial request and, if covered by the records; and, in the case

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of medical treatment records, the con- applicable presumptive period provided dition for which treatment was pro- the claimant has the required service vided. In the case of records requested or triggering event to qualify for that to corroborate a claimed stressful presumption; and event in service, the claimant must (C) Indicates that the claimed dis- provide information sufficient for the ability or symptoms may be associated records custodian to conduct a search with the established event, injury, or of the corroborative records. disease in service or with another serv- (ii) If necessary, the claimant must ice-connected disability. authorize the release of existing (ii) Paragraph (4)(i)(C) could be satis- records in a form acceptable to the cus- fied by competent evidence showing todian or agency holding the records. post-service treatment for a condition, (Authority: 38 U.S.C. 5103A(b)) or other possible association with military service. (3) Obtaining records in compensation (iii) For requests to reopen a finally claims. In a claim for disability com- adjudicated claim received prior to the pensation, VA will make efforts to ob- effective date provided in § 19.2(a) of tain the claimant’s service medical this chapter, this paragraph (c)(4) ap- records, if relevant to the claim; other plies only if new and material evidence relevant records pertaining to the is presented or secured as prescribed in claimant’s active military, naval or air service that are held or maintained by § 3.156. a governmental entity; VA medical (iv) This paragraph (c)(4) applies to a records or records of examination or supplemental claim only if new and treatment at non-VA facilities author- relevant evidence under § 3.2501 is pre- ized by VA; and any other relevant sented or secured. records held by any Federal department or agency. The claimant must (Authority: 38 U.S.C. 5103A(d)) provide enough information to identify (d) Circumstances where VA will refrain and locate the existing records includ- from or discontinue providing assistance. ing the custodian or agency holding VA will refrain from providing assist- the records; the approximate time ance in obtaining evidence for an ini- frame covered by the records; and, in tial or supplemental claim if the sub- the case of medical treatment records, stantially complete application for the condition for which treatment was benefits indicates that there is no rea- provided. sonable possibility that any assistance (Authority: 38 U.S.C. 5103A(c)) VA would provide to the claimant would substantiate the claim. VA will (4) Providing medical examinations or discontinue providing assistance in ob- obtaining medical opinions. (i) In a claim taining evidence for a claim if the evi- for disability compensation, VA will dence obtained indicates that there is provide a medical examination or ob- no reasonable possibility that further tain a medical opinion based upon a re- assistance would substantiate the view of the evidence of record if VA de- claim. Circumstances in which VA will termines it is necessary to decide the refrain from or discontinue providing claim. A medical examination or medical opinion is necessary if the infor- assistance in obtaining evidence in- mation and evidence of record does not clude, but are not limited to: contain sufficient competent medical (1) The claimant’s ineligibility for evidence to decide the claim, but: the benefit sought because of lack of (A) Contains competent lay or med- qualifying service, lack of veteran sta- ical evidence of a current diagnosed tus, or other lack of legal eligibility; disability or persistent or recurrent (2) Claims that are inherently incred- symptoms of disability; ible or clearly lack merit; and (B) Establishes that the veteran suf- (3) An application requesting a ben- fered an event, injury or disease in efit to which the claimant is not enti- service, or has a disease or symptoms tled as a matter of law. of a disease listed in § 3.309, § 3.313, § 3.316, and § 3.317 manifesting during an (Authority: 38 U.S.C. 5103A(a)(2))

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(e) Duty to notify claimant of inability appropriate by the Secretary, through to obtain records. (1) If VA makes rea- the promulgation of regulations. sonable efforts to obtain relevant non- Federal records but is unable to obtain (Authority: 38 U.S.C. 5103A(g)) them, or after continued efforts to obtain Federal records concludes that it [66 FR 45630, Aug. 29, 2001, as amended at 73 is reasonably certain they do not exist FR 23356, Apr. 30, 2008; 84 FR 169, Jan. 18, 2019] or further efforts to obtain them would be futile, VA will provide the claimant § 3.160 Status of claims. with oral or written notice of that fact. (a) Complete claim. A submission of an VA will make a record of any oral no- application form prescribed by the Sec- tice conveyed to the claimant. For retary, whether paper or electronic, non-Federal records requests, VA may that meets the following requirements: provide the notice at the same time it (1) A complete claim must provide makes its final attempt to obtain the the name of the claimant; the relation- relevant records. In either case, the no- ship to the veteran, if applicable; and tice must contain the following infor- sufficient information for VA to verify mation: the claimed service, if applicable. (i) The identity of the records VA (2) A complete claim must be signed was unable to obtain; by the claimant or a person legally au- (ii) An explanation of the efforts VA thorized to sign for the claimant. made to obtain the records; (3) A complete claim must identify (iii) A description of any further ac- the benefit sought. tion VA will take regarding the claim, (4) A description of any symptom(s) including, but not limited to, notice or medical condition(s) on which the that VA will decide the claim based on benefit is based must be provided to the evidence of record unless the the extent the form prescribed by the claimant submits the records VA was Secretary so requires. unable to obtain; and (5) For nonservice-connected dis- (iv) A notice that the claimant is ul- ability or death pension and parents’ timately responsible for providing the dependency and indemnity compensa- evidence. tion claims, a statement of income (2) If VA becomes aware of the exist- must be provided to the extent the ence of relevant records before deciding form prescribed by the Secretary so re- the claim, VA will notify the claimant quires; and of the records and request that the (6) For supplemental claims, poten- claimant provide a release for the tially new evidence must be identified records. If the claimant does not pro- or included. vide any necessary release of the rel- (b) Original claim. The initial com- evant records that VA is unable to ob- plete claim for one or more benefits on tain, VA will request that the claimant an application form prescribed by the obtain the records and provide them to Secretary. VA. (c) Pending claim. A claim which has not been finally adjudicated. (Authority: 38 U.S.C. 5103A(b)(2)) (d) Finally adjudicated claim. A claim that is adjudicated by the Department (f) For the purpose of the notice re- of Veterans Affairs as either allowed or quirements in paragraphs (b) and (e) of disallowed is considered finally adju- this section, notice to the claimant dicated when: means notice to the claimant or his or (1) For legacy claims not subject to her fiduciary, if any, as well as to his the modernized review system, which- or her representative, if any. ever of the following occurs first: (i) The expiration of the period in (Authority: 38 U.S.C. 5102(b), 5103(a)) which to file a Notice of Disagreement, (g) The authority recognized in sub- pursuant to the provisions of § 19.52(a) section (g) of 38 U.S.C. 5103A is reserved or § 20.502(a) of this chapter, as applica- to the sole discretion of the Secretary ble; or and will be implemented, when deemed (ii) Disposition on appellate review.

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(2) For claims under the modernized or under oath or affirmation. This in- review system, the expiration of the cludes records, examination reports, period in which to file a review option and transcripts material to the issue available under § 3.2500 or disposition received by the Department of Vet- on judicial review where no such re- erans Affairs at the instance of the view option is available. claimant or in his or her behalf or re- (e) Reopened claims prior to effective quested by the Department of Veterans date of modernized review system. An ap- Affairs from State, county, municipal, plication for a benefit received prior to recognized private institutions, and the effective date provided in § 19.2(a) contract hospitals. of this chapter, after final disallowance [40 FR 36329, Aug. 20, 1975] of an earlier claim that is subject to readjudication on the merits based on re- § 3.201 Exchange of evidence; Social ceipt of new and material evidence re- Security and Department of Vet- lated to the finally adjudicated claim, erans Affairs. or any claim based on additional evidence or a request for a personal hear- (a) A claimant for dependency and in- ing submitted more than 90 days fol- demnity compensation may elect to lowing notification to the appellant of furnish to the Department of Veterans the certification of an appeal and Affairs in support of that claim copies transfer of applicable records to the of evidence which was previously fur- Board of Veterans’ Appeals which was nished to the Social Security Adminis- not considered by the Board in its deci- tration or to have the Department of sion and was referred to the agency of Veterans Affairs obtain such evidence original jurisdiction for consideration from the Social Security Administra- as provided in § 20.1304(b)(1) of this tion. For the purpose of determining chapter. As of the effective date pro- the earliest effective date for payment vided in § 19.2(a) of this chapter, claim- of dependency and indemnity com- ants may no longer file to reopen a pensation, such evidence will be claim, but may file a supplemental deemed to have been received by the claim as prescribed in § 3.2501 to apply Department of Veterans Affairs on the for a previously disallowed benefit. A date it was received by the Social Se- request to reopen a finally decided curity Administration. claim that has not been adjudicated as (b) A copy or certification of evi- of the effective date will be processed dence filed in the Department of Vet- as a supplemental claim subject to the erans Affairs in support of a claim for modernized review system. dependency and indemnity compensation will be furnished the Social Secu- (Authority: 38 U.S.C. 501) rity Administration upon request from the agency. [27 FR 11887, Dec. 1, 1962, as amended at 31 (Authority: 38 U.S.C. 501(a) and 5105) FR 12056, Sept. 15, 1966; 55 FR 20148, May 15, 1990; 58 FR 32445, June 10, 1993; 79 FR 57696, CROSS REFERENCE: Claims filed with Social Sept. 25, 2014; 84 FR 170, Jan. 18, 2019] Security. See § 3.153. § 3.161 [Reserved] [26 FR 1571, Feb. 24, 1961, as amended at 58 FR 25562, Apr. 27, 1993] EVIDENCE REQUIREMENTS § 3.202 Evidence from foreign coun- § 3.200 Testimony certified or under tries. oath. (a) Except as provided in paragraph (a) All oral testimony presented by (b) of this section, where an affidavit or claimants and witnesses on their behalf other document is required to be exe- before any rating or authorization cuted under oath before an official in a body will be under oath or affirmation. foreign country, the signature of that (See § 3.103(c).) official must be authenticated by a (b) All written testimony submitted United States Consular Officer in that by the claimant or in his or her behalf jurisdiction or by the State Depart- for the purpose of establishing a claim ment. Where the United States has no for service connection will be certified consular representative in a foreign

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country, such authentication may be CROSS REFERENCE: State Department as made as follows: agent of Department of Veterans Affairs. See (1) By a consular agent of a friendly § 3.108. government whereupon the signature [26 FR 1571, Feb. 24, 1961, as amended at 40 and seal of the official of the friendly FR 36329, Aug. 20, 1975; 52 FR 19348, May 22, government may be authenticated by 1987; 59 FR 46338, Sept. 8, 1994] the State Department; or § 3.203 Service records as evidence of (2) By the nearest American consul service and character of discharge. who will attach a certificate showing (a) Evidence submitted by a claimant. the result of the investigation con- For the purpose of establishing entitle- cerning its authenticity. ment to pension, compensation, de- (b) Authentication will not be re- pendency and indemnity compensation quired: (1) On documents approved by or burial benefits the Department of the Deputy Minister of Veterans Af- Veterans Affairs may accept evidence fairs, Department of Veterans Affairs, of service submitted by a claimant (or Ottawa, Canada: or sent directly to the Department of Vet- (2) When it is indicated that the at- erans Affairs by the service depart- testing officer is authorized to admin- ment), such as a DD Form 214, Certifi- ister oaths for general purposes and the cate of Release or Discharge from Ac- document bears his or her signature tive Duty, or original Certificate of and seal; or Discharge, without verification from (3) When the document is executed the appropriate service department if before a Department of Veterans Af- the evidence meets the following condi- fairs employee authorized to admin- tions: ister oaths; or (1) The evidence is a document issued (4) When a copy of a public or church by the service department. A copy of record from any foreign country pur- an original document is acceptable if ports to establish birth, adoption, mar- the copy was issued by the service de- riage, annulment, divorce, or death, partment or if the copy was issued by a provided it bears the signature and seal public custodian of records who cer- of the custodian of such record and tifies that it is a true and exact copy of there is no conflicting evidence in the the document in the custodian’s cus- file which would serve to create doubt tody or, if the copy was submitted by as to the correctness of the record; or an accredited agent, attorney or serv- (5) When a copy of the public or ice organization representative who church record from one of the coun- has successfully completed VA-pre- tries comprising the United Kingdom, scribed training on military records, namely: England, Scotland, Wales, or and who certifies that it is a true and Northern Ireland, purports to establish exact copy of either an original docu- birth, marriage, or death, provided it ment or of a copy issued by the service bears the signature or seal or stamp of department or a public custodian of the custodian of such record and there records; and is no evidence which would serve to (2) The document contains needed in- create doubt as to the correctness of formation as to length, time and char- the records; or acter of service; and (6) When affidavits prepared in the (3) In the opinion of the Department Republic of the Philippines are cer- of Veterans Affairs the document is tified by a Department of Veterans Af- genuine and the information contained fairs representative located in the in it is accurate. Philippines having authority to admin- (b) Additional requirements for pension ister oaths. claimants. In addition to meeting the (c) Photocopies of original docu- requirements of paragraph (a) of this ments meeting the requirements of section, a document submitted to establish a creditable period of wartime this section will be accepted if they service for pension entitlement may be satisfy the requirements of § 3.204 of accepted without verification if the this part. document (or other evidence of record) (Authority: 38 U.S.C. 501) shows:

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(1) Service of 4 months or more; or ber of any dependent on whose behalf (2) Discharge for disability incurred he or she is seeking benefits (see in line of duty; or § 3.216). (3) Ninety days creditable service (2) VA shall require the types of evi- based on records from the service de- dence indicated in §§ 3.205 through 3.211 partment such as hospitalization for 90 where: the claimant does not reside days for a line of duty disability. within a state; the claimant’s state- (c) Verification from the service department on its face raises a question of its ment. When the claimant does not sub- validity; the claimant’s statement con- mit evidence of service or the evidence flicts with other evidence of record; or, submitted does not meet the require- there is a reasonable indication, in the ments of paragraph (a) of this section claimant’s statement or otherwise, of (and paragraph (b) of this section in fraud or misrepresentation of the rela- pension claims), the Department of tionship in question. Veterans Affairs shall request verification of service from the service (Authority: 38 U.S.C. 5124) department. However, payment of non- (b) Marriage or birth. The classes of service-connected burial benefits may evidence to be furnished for the pur- be authorized, if otherwise in order, pose of establishing marriage, dissolu- based upon evidence of service which tion of marriage, age, relationship, or VA relied upon to authorize payment death, if required under the provisions of compensation or pension during the of paragraph (a)(2), are indicated in veteran’s lifetime, provided that there §§ 3.205 through 3.211 in the order of is no evidence which would serve to preference. Failure to furnish the high- create doubt as to the correctness of er class, however, does not preclude the that service evidence. If it appears that acceptance of a lower class if the evi- a length of service requirement may dence furnished is sufficient to prove not be met (e.g., the 90 days wartime the point involved. service requirement to receive pension (c) Acceptability of photocopies. Photo- under 38 U.S.C. 1521(j)), the Department copies of documents necessary to es- of Veterans Affairs shall request a tablish birth, death, marriage or rela- complete statement of service to deter- tionship under the provisions of §§ 3.205 mine if there are any periods of active through 3.215 of this part are accept- service that are required to be excluded able as evidence if the Department of under § 3.15. Veterans Affairs is satisfied that the [45 FR 72654, Nov. 3, 1980, as amended at 46 copies are genuine and free from alter- FR 51246, Oct. 19, 1981; 58 FR 37857, July 14, ation. Otherwise, VA may request a 1993; 58 FR 42623, Aug. 10, 1993; 66 FR 19858, copy of the document certified over the Apr. 18, 2001] signature and official seal of the person having custody of such record. § 3.204 Evidence of dependents and age. (Authority: 38 U.S.C. 501) (a)(1) Except as provided in para- (The Office of Management and Budget has graph (a)(2) of this section, VA will ac- approved the information collection require- cept, for the purpose of determining en- ments in this section under control number titlement to benefits under laws ad- 2900–0624) ministered by VA, the statement of a [26 FR 1572, Feb. 24, 1961, as amended at 40 claimant as proof of marriage, dissolu- FR 53581, Nov. 19, 1975; 45 FR 72655, Nov. 3, tion of a marriage, birth of a child, or 1980; 59 FR 46338, Sept. 8, 1994; 61 FR 56626, death of a dependent, provided that the Nov. 4, 1996; 66 FR 56614, Nov. 9, 2001] statement contains: the date (month and year) and place of the event; the § 3.205 Marriage. full name and relationship of the other (a) Proof of marriage. Marriage is es- person to the claimant; and, where the tablished by one of the following types claimant’s dependent child does not re- of evidence: side with the claimant, the name and (1) Copy or abstract of the public address of the person who has custody record of marriage, or a copy of the of the child. In addition, a claimant church record of marriage, containing must provide the social security num- sufficient data to identify the parties,

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the date and place of marriage, and the est therein, proof of termination of a number of prior marriages if shown on prior marriage will be shown by proof the official record. of death, or a certified copy or a cer- (2) Official report from service de- tified abstract of final decree of divorce partment as to marriage which oc- or annulment specifically reciting the curred while the veteran was in serv- effects of the decree. ice. (c) Marriages deemed valid. Where a (3) The affidavit of the clergyman or surviving spouse has submitted proof of magistrate who officiated. marriage in accordance with paragraph (4) The original certificate of mar- (a) of this section and also meets the riage, if the Department of Veterans requirements of § 3.52, the claimant’s Affairs is satisfied that it is genuine signed statement that he or she had no and free from alteration. knowledge of an impediment to the (5) The affidavits or certified state- marriage to the veteran will be accept- ments of two or more eyewitnesses to ed, in the absence of information to the the ceremony. contrary, as proof of that fact. (6) In jurisdictions where marriages (Authority: 38 U.S.C. 501) other than by ceremony are recognized the affidavits or certified statements of CROSS REFERENCES: Marriages deemed valid. See § 3.52. Definitions; marriage. See one or both of the parties to the mar- § 3.1(j). Evidence of dependents and age. See riage, if living, setting forth all of the § 3.204. facts and circumstances concerning the alleged marriage, such as the agree- [26 FR 1572, Feb. 24, 1961, as amended at 27 FR 6281, July 3, 1962; 36 FR 20946, Nov. 2, 1971; ment between the parties at the begin- 40 FR 53581, Nov. 19, 1975; 45 FR 72655, Nov. 3, ning of their cohabitation, the period 1980; 47 FR 28096, June 29, 1982; 52 FR 19349, of cohabitation, places and dates of May 22, 1987; 58 FR 37857, July 14, 1993; 59 FR residences, and whether children were 46338, Sept. 8, 1994; 62 FR 5529, Feb. 6, 1997] born as the result of the relationship. This evidence should be supplemented § 3.206 Divorce. by affidavits or certified statements The validity of a divorce decree reg- from two or more persons who know as ular on its face, will be questioned by the result of personal observation the the Department of Veterans Affairs reputed relationship which existed be- only when such validity is put in issue tween the parties to the alleged mar- by a party thereto or a person whose riage including the periods of cohabita- interest in a claim for Department of tion, places of residences, whether the Veterans Affairs benefits would be af- parties held themselves out as married, fected thereby. In cases where recogni- and whether they were generally action of the decree is thus brought into cepted as such in the communities in question: which they lived. (a) Where the issue is whether the (7) Any other secondary evidence veteran is single or married (dissolu- which reasonably supports a belief by tion of a subsisting marriage), there the Adjudicating activity that a valid must be a bona fide domicile in addi- marriage actually occurred. tion to the standards of the granting (b) Valid marriage. In the absence of jurisdiction respecting validity of di- conflicting information, proof of mar- vorce; riage which meets the requirements of (b) Where the issue is the validity of paragraph (a) of this section together marriage to a veteran following a di- with the claimant’s certified statement vorce, the matter of recognition of the concerning the date, place and cir- divorce by the Department of Veterans cumstances of dissolution of any prior Affairs (including any question of bona marriage may be accepted as estab- fide domicile) will be determined ac- lishing a valid marriage, provided that cording to the laws of the jurisdictions such facts, if they were to be corrobo- specified in § 3.1(j). rated by record evidence, would war- (c) Where a foreign divorce has been rant acceptance of the marriage as granted the residents of a State whose valid. Where necessary to a determina- laws consider such decrees to be valid, tion because of conflicting information it will thereafter be considered as valid or protest by a party having an inter- under the laws of the jurisdictions

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specified in § 3.1(j) in the absence of a ancy is to be reconciled by an affidavit determination to the contrary by a or certified statement identifying the court of last resort in those jurisdic- person having the changed name as the tions. person whose name appears in the evidence of age or relationship. CROSS REFERENCE: Evidence of dependents (a) A copy or abstract of the public and age. See § 3.204. record of birth. Such a record estab- [27 FR 6281, July 3, 1962, as amended at 35 FR lished more than 4 years after the birth 16831, Oct. 31, 1970; 40 FR 53581, Nov. 19, 1975; will be accepted as proof of age or rela- 52 FR 19349, May 22, 1987] tionship if, it is not inconsistent with material of record with the Depart- § 3.207 Void or annulled marriage. ment of Veterans Affairs, or if it shows Proof that a marriage was void or on its face that it is based upon evi- has been annulled should consist of: dence which would be acceptable under (a) Void. A certified statement from this section. the claimant setting forth the cir- (b) A copy of the church record of cumstances which rendered the mar- baptism. Such a record of baptism per- riage void, together with such other formed more than 4 years after birth evidence as may be required for a de- will not be accepted as proof of age or termination. relationship unless it is consistent (b) Annulled. A copy or abstract of with material of record with the De- the decree of annulment. A decree reg- partment of Veterans Affairs, which ular on its face will be accepted unless will include at least one reference to there is reason to question the basic age or relationship made at a time authority of the court to render annul- when such reference was not essential ment decrees or there is evidence indi- to establishing entitlement to the ben- cating that the annulment may have efit claimed. been obtained through fraud by either (c) Official report from the service party or by collusion. department as to birth which occurred while the veteran was in service. CROSS REFERENCES: Effective dates, void or annulled marriage. See § 3.400 (u) and (v). (d) Affidavit or a certified statement Evidence of dependents and age. See § 3.204. of the physician or midwife in attendance at birth. [28 FR 2904, Mar. 3, 1963, as amended at 40 FR 53581, Nov. 19, 1975; 52 FR 19349, May 22, 1987; (e) Copy of Bible or other family 59 FR 46338, Sept. 8, 1994] record certified to by a notary public or other officer with authority to ad- § 3.208 Claims based on attained age. minister oaths, who should state in In claims for pension where the age what year the Bible or other book in of the veteran or surviving spouse is which the record appears was printed, material, the statements of age will be whether the record bears any erasures accepted where they are in agreement or other marks of alteration, and with other statements in the record as whether from the appearance of the to age. However, where there is a vari- writing he or she believes the entries ance in such records, the youngest age to have been made at the time pur- will be accepted subject to the submis- ported. sion of evidence as outlined in § 3.209. (f) Affidavits or certified statements of two or more persons, preferably dis- CROSS REFERENCE: Evidence of dependents interested, who will state their ages, and age. See § 3.204. showing the name, date, and place of [40 FR 53581, Nov. 19, 1975, as amended at 52 birth of the person whose age or rela- FR 19349, May 22, 1987] tionship is being established, and that to their own knowledge such person is § 3.209 Birth. the child of such parents (naming the Age or relationship is established by parents) and stating the source of their one of the following types of evidence. knowledge. If the evidence submitted for proof of (g) Other evidence which is adequate age or relationship indicates a dif- to establish the facts in issue, includ- ference in the name of the person as ing census records, original baptismal shown by other records, the discrep- records, hospital records, insurance

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policies, school, employment, immigra- eran was named as the father of the tion, or naturalization records. child. (Authority: 38 U.S.C. 501) (c) Adopted child. Except as provided in paragraph (c)(1) of this section evi- CROSS REFERENCE: Evidence of dependents dence of relationship will include a and age. See § 3.204. copy of the decree of adoption or a [26 FR 1573, Feb. 24, 1961, as amended at 27 copy of the adoptive placement agree- FR 1899, Feb. 28, 1962; 40 FR 53581, Nov. 19, ment and such other evidence as may 1975; 47 FR 28096, June 29, 1982; 52 FR 19349, be necessary. May 22, 1987; 59 FR 46338, Sept. 8, 1994] (1) In jurisdictions where petition § 3.210 Child’s relationship. must be made to the court for release of adoption documents or information, (a) Legitimate child. Where it is nec- or where release of such documents or essary to determine the legitimacy of a information is prohibited, the fol- child, evidence will be required to es- lowing may be accepted to establish tablish the legality of the marriage of the fact of adoption: the mother of the child to the veteran (i) As to a child adopted into the vet- or to show that the child is otherwise eran’s family, a copy of the child’s re- legitimate by State laws together with vised birth certificate. evidence of birth as outlined in § 3.209. Where the legitimacy of a child is not (ii) As to a child adopted out of the a factor, evidence to establish legit- veteran’s family, a statement over the imacy will not be required: Provided, signature of the judge or the clerk of That, evidence is on file which meets the court setting forth the child’s the requirements of paragraph (b) of former name and the date of adoption, this section sufficient to warrant rec- or a certified statement by the veteran, ognition of the relationship of the child the veteran’s surviving spouse, without regard to legitimacy. apportionee, or their fiduciaries setting (b) Illegitimate child. As to the mother forth the child’s former name, date of of an illegitimate child, proof of birth birth, and the date and fact of adoption is all that is required. As to the father, together with evidence indicating that the sufficiency of evidence will be de- the child’s original public record of termined in accordance with the facts birth has been removed from such in the individual case. Proof of such re- records. Where application is made for lationship will consist of: an apportionment under § 3.458(d) on (1) An acknowledgment in writing behalf of a child adopted out of the vet- signed by him; or eran’s family, the evidence must be (2) Evidence that he has been identi- sufficient to establish the veteran as fied as the child’s father by a judicial the natural parent of the child. decree ordering him to contribute to (2) As to a child adopted by the vet- the child’s support or for other pur- eran’s surviving spouse after the vet- poses; or eran’s death, the statement of the (3) Any other secondary evidence adoptive parent or custodian of the which reasonably supports a finding of child will be accepted in absence of in- relationship, as determined by an offi- formation to the contrary, to show cial authorized to approve such find- that the child was a member of the vet- ings, such as: eran’s household at the date of the vet- (i) A copy of the public record of eran’s death and that recurring con- birth or church record of baptism, tributions were not being received for showing that the veteran was the in- the child’s maintenance sufficient to formant and was named as parent of provide for the major portion of the the child; or child’s support, from any person other (ii) Statements of persons who know than the veteran or surviving spouse or that the veteran accepted the child as from any public or private welfare or- his; or ganization which furnished services or (iii) Information obtained from serv- assistance to children. (Pub. L. 86–195) ice department or public records, such (d) Stepchild. Evidence of relationship as school or welfare agencies, which of a stepchild will consist of proof of shows that with his knowledge the vet- birth as outlined in § 3.209, evidence of

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the marriage of the veteran to the nat- fact of death, have viewed the body of ural parent of the child, and evidence the deceased, know it to be the body of that the child is a member of the vet- the person whose death is being estab- eran’s household or was a member of lished, setting forth all the facts and the veteran’s household at the date of circumstances concerning the death, the veteran’s death. place, date, time, and cause thereof. CROSS REFERENCE: Evidence of dependents (f) If proof of death, as defined in and age. See § 3.204. paragraphs (a) through (e) of this sec- [26 FR 1573, Feb. 24, 1961, as amended at 27 tion cannot be furnished, a finding of FR 1899, Feb. 28, 1962; 28 FR 2959, Mar. 26, fact of death, where death is otherwise 1963; 38 FR 871, Jan. 5, 1973; 47 FR 28096, June shown by competent evidence, may be 29, 1982; 52 FR 19349, May 22, 1987; 59 FR 46338, made by an official authorized to ap- Sept. 8, 1994] prove such findings. Where it is indicated that the veteran died under cir- § 3.211 Death. cumstances which precluded recovery Death should be established by one of or identification of the body, the fact the following types of evidence: of death should be established by the (a)(1) A copy of the public record of best evidence, which from the nature of the State or community where death the case must be supposed to exist. occurred. (g) In the absence of evidence to the (2) A copy of a coroner’s report of death or a verdict of a coroner’s jury of contrary, a finding of fact of death the State or community where death made by another Federal agency will occurred, provided such report or ver- be accepted for the purposes of para- dict properly identified the deceased. graph (f) of this section. (b) Where death occurs in a hospital CROSS REFERENCE: Evidence of dependents or institution under the control of the and age. See § 3.204. United States Government: (1) A death certificate signed by a [26 FR 1573, Feb. 24, 1961, as amended at 27 medical officer; or FR 1899, Feb. 28, 1962; 52 FR 19349, May 22, 1987; 59 FR 46338, Sept. 8, 1994] (2) A clinical summary or other report showing fact and date of death § 3.212 Unexplained absence for 7 signed by a medical officer. years. (c) An official report of death of a member of a uniformed service from (a) If satisfactory evidence is pro- the Secretary of the department con- duced establishing the fact of the concerned where death occurs while de- tinued and unexplained absence of any ceased was on the retired list, in an in- individual from his or her home and active duty status, or in the active family for a period of 7 years or more service. and that a diligent search disclosed no (d) Where death occurs abroad: evidence of his or her existence after (1) A United States consular report of the date of disappearance, and if evi- death bearing the signature and seal of dence as provided in § 3.211 cannot be the United States consul; or furnished, the death of such individual (2) A copy of the public record of as of the expiration of such period may death authenticated (see § 3.202(b)(4) for be considered as sufficiently proved. exception) by the United States consul (b) No State law providing for pre- or other agency of the State Depart- sumption of death will be applicable to ment; or claims for benefits under laws adminis- (3) An official report of death from tered by the Department of Veterans the head of the department concerned, Affairs and the finding of death will be where the deceased person was, at the final and conclusive except where suit time of death, a civilian employee of is filed for insurance under 38 U.S.C. such department. 1984. (e) If the foregoing evidence cannot be furnished, the reason must be stat- (Authority: 38 U.S.C. 108) ed. The fact of death may then be established by the affidavits of persons (c) In the absence of evidence to the who have personal knowledge of the contrary, a finding of death made by

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another Federal agency will be accept- (4) Parent. A statement by a parent ed if the finding meets the require- setting forth the month and year: ments of paragraph (a) of this section. (i) Of marriage or remarriage; (ii) When two parents or a parent and CROSS REFERENCE: Evidence of dependents and age. See § 3.204. spouse ceased living together; (iii) When two parents or a parent [26 FR 1573, Feb. 24, 1961, as amended at 27 and spouse resumed living together fol- FR 1899, Feb. 28, 1962; 52 FR 19349, May 22, lowing a period of separation; 1987] (iv) Of divorce or death of a spouse. § 3.213 Change of status affecting enti- (b) Date not reported. If the month tlement. and year of the event is not reported, (a) General. For the purpose of estab- the award will be reduced or discon- lishing entitlement to a higher rate of tinued, whichever is appropriate, effec- pension, compensation, or dependency tive date of last payment. The payee will be requested to furnish within 60 and indemnity compensation based on days from the date of request a state- the existence of a dependent, VA will ment setting forth the date of the require evidence which satisfies the re- event. Where payments are continued quirements of § 3.204. For the purpose of at a reduced rate, the award will be dis- reducing or discontinuing such bene- continued effective date of last pay- fits, a statement by a claimant or ment if the required statement is not payee setting forth the month and year received within the 60-day period. Pay- of change of status which would result ments on a discontinued award may be in a reduction or discontinuance of resumed, if otherwise in order, from benefits to that person will be accept- the date of discontinuance if the nec- ed, in the absence of contradictory in- essary information is received within 1 formation. This includes: year from the date of request; other- (1) Veteran. A statement by the vet- wise from the date of receipt of a new eran setting forth the month and year claim. of death of a spouse, child, or depend- (c) Contradictory information. Where ent parent. there is reason to believe that the (2) Surviving spouse. A statement by event reported may have occurred at the surviving spouse or remarried sur- an earlier date, formal proof will be re- viving spouse setting forth the month quired. and year of remarriage and any change of name. (An award for a child or chil- CROSS REFERENCES: Abandoned claims. See dren who are otherwise entitled may be § 3.158. Change in status of dependents. See made to commence the day following § 3.651. Material change in income, net worth the date of discontinuance of any pay- or change in status. See § 3.660. Evidence of ments to the surviving spouse.) dependents and age. See § 3.204. (3) Child. A statement by the veteran [26 FR 1574, Feb. 24, 1961, as amended at 27 or surviving spouse (where an addi- FR 1899, Feb. 28, 1962; 27 FR 11888, Dec. 1, tional allowance is being paid to the 1962; 52 FR 19349, May 22, 1987; 61 FR 56626, veteran or surviving spouse for a Nov. 4, 1996] child), or fiduciary, setting forth the month and year of the child’s death, § 3.214 Court decisions; unremarried surviving spouses. marriage, or discontinuance of school attendance. A similar statement by a Effective July 15, 1958, a decision ren- child who is receiving payments direct dered by a Federal court in an action will be accepted to establish the child’s to which the United States was a party marriage or the discontinuance of holding that a surviving spouse of a school attendance. Where appropriate, veteran has not remarried will be fol- the month and year of discontinuance lowed in determining eligibility for of school attendance will be required in pension, compensation or dependency addition to the month and year of and indemnity compensation. death or marriage of a child. CROSS REFERENCES: Abandoned claims. See § 3.158. Change in status of dependents. See (Authority: 38 U.S.C. 501) § 3.651. Dependency, income and estate. See

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§ 3.660. Evidence of dependents and age. See requested to furnish the social security § 3.204. number. [31 FR 2782, Feb. 16, 1966, as amended at 52 (Authority: 38 U.S.C. 1832, 5101(c)) FR 19349, May 22, 1987] (Approved by the Office of Management and Budget under control number 2900–0522) § 3.215 Termination of marital relationship or conduct. [57 FR 8268, Mar. 9, 1992, as amended at 57 FR 27935, June 23, 1992; 65 FR 35282, June 2, 2000; On or after January 1, 1971, benefits 67 FR 49586, July 31, 2002; 76 FR 4248, Jan. 25, may be resumed to an unmarried sur- 2011] viving spouse upon filing of an application and submission of satisfactory evi- § 3.217 Submission of statements or in- dence that the surviving spouse has formation affecting entitlement to benefits. ceased living with another person and holding himself or herself out openly to (a) For purposes of this part, unless the public as that person’s spouse or specifically provided otherwise, the that the surviving spouse has termi- submission of information or a statement that affects entitlement to bene- nated a relationship or conduct which fits by e-mail, facsimile, or other writ- had created an inference or presump- ten electronic means, will satisfy a re- tion of remarriage or related to open or quirement or authorization that the notorious adulterous cohabitation or statement or information be submitted similar conduct, if the relationship ter- in writing. minated prior to November 1, 1990. Such evidence may consist of, but is NOTE TO PARAGRAPH (a): Section 3.217(a) merely concerns the submission of informa- not limited to, the surviving spouse’s tion or a statement in writing. Other re- certified statement of the fact. quirements specified in this part, such as a requirement to use a specific form, to pro- [57 FR 10426, Mar. 26, 1992, as amended at 58 vide specific information, to provide a signa- FR 32445, June 10, 1993] ture, or to provide a certified statement, must still be met. § 3.216 Mandatory disclosure of social security numbers. (b) For purposes of this part, unless specifically provided otherwise, VA Any person who applies for or re- may take action affecting entitlement ceives any compensation or pension to benefits based on oral or written in- benefit as defined in §§ 3.3, 3.4, or 3.5 of formation or statements provided to this part, or a monetary allowance VA by a beneficiary or his or her fidu- under 38 U.S.C. chapter 18, shall, as a ciary. However, VA may not take ac- condition for receipt or continued re- tion based on oral information or ceipt of benefits, furnish the Depart- statements unless the VA employee re- ment of Veterans Affairs upon request ceiving the information meets the fol- with his or her social security number lowing conditions: and the social security number of any (1) During the conversation in which dependent or beneficiary on whose be- the information or statement is pro- half, or based upon whom, benefits are vided, the VA employee: sought or received. However, no one (i) Identifies himself or herself as a shall be required to furnish a social se- VA employee who is authorized to re- curity number for any person to whom ceive the information or statement (these are VA employees authorized to none has been assigned. Benefits will take actions under §§ 2.3 or 3.100 of this be terminated if a beneficiary fails to chapter); furnish the Department of Veterans Af- (ii) Verifies the identity of the pro- fairs with his or her social security vider as either the beneficiary or his or number or the social security number her fiduciary by obtaining specific in- of any dependent or beneficiary on formation about the beneficiary that whose behalf, or based upon whom, can be verified from the beneficiary’s benefits are sought or received, within VA records, such as Social Security 60 days from the date the beneficiary is number, date of birth, branch of military service, dates of military service, or other information; and

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(iii) Informs the provider that the in- (b) Basic rule. Dependency will be formation or statement will be used for held to exist if the father or mother of the purpose of calculating benefit the veteran does not have an income amounts; and sufficient to provide reasonable main- (2) During or following the conversa- tenance for such father or mother and tion in which the information or state- members of his or her family under ment is provided, the VA employee legal age and for dependent adult mem- documents in the beneficiary’s VA bers of the family if the dependency of records the specific information or such adult member results from mental statement provided, the date such in- or physical incapacity. formation or statement was provided, (1) ‘‘Reasonable Maintenance’’ in- the identity of the provider, the steps cludes not only housing, food, clothing, taken to verify the identity of the pro- and medical care sufficient to sustain vider as being either the beneficiary or life, but such items beyond the bare ne- his or her fiduciary, and that he or she cessities as well as other requirements informed the provider that the information would be used for the purpose reasonably necessary to provide those of calculating benefit amounts. conveniences and comforts of living suitable to and consistent with the par- AUTHORITY: 38 U.S.C. 501, 1115, 1506, 5104. ents’ reasonable mode of life. [66 FR 56614, Nov. 9, 2001] (2) ‘‘Member of the family’’ means a person (other than spouse) including a DEPENDENCY, INCOME AND ESTATE relative in the ascending as well as de- REGULATIONS APPLICABLE TO PROGRAMS scending class, whom the father or IN EFFECT PRIOR TO JANUARY 1, 1979 mother is under moral or legal obligation to support. In determining wheth- § 3.250 Dependency of parents; com- er other members of the family under pensation. legal age are factors in necessary ex- (a) Income—(1) Conclusive dependency. penses of the mother or father, consid- Dependency of a parent (other than one eration will be given to any income who is residing in a foreign country) from business or property (including will be held to exist where the monthy trusts) actually available, directly or income does not exceed: indirectly, to the mother or father for (i) $400 for a mother or father not liv- the support of the minor but not to the ing together; corpus of the estate or the income of (ii) $660 for a mother and father, or the minor which is not so available. remarried parent and spouse, living to- (c) Inception of dependency. The fact gether: that the veteran has made habitual (iii) $185 for each additional ‘‘member contributions to the father or mother, of the family’’ as defined in paragraph or both, is not conclusive evidence that (b)(2). dependency existed but will be considered in connection with all other evi- (Authority: 38 U.S.C. 102(a)) dence. In death claims, it is not mate- (2) Excess income. Where the income rial whether dependency arose prior or exceeds the monthly amounts stated in subsequent to the veteran’s death. (See paragraph (a)(1) of this section depend- § 3.1000(d)(3) as to accrued.) ency will be determined on the facts in the individual case under the principles (Authority: 38 U.S.C. 102(a)) outlined in paragraph (b) of this section. In such cases, dependency will not (d) Remarriage. Dependency will not be held to exist if it is reasonable that be denied solely because of remarriage some part of the corpus of the claim- (38 U.S.C. 102(b)(1)). Compensation may ant’s estate be consumed for his or her be continued if the parent submits evi- maintenance. dence to show that dependency exists, (3) Foreign residents. There is no con- considering the combined income and clusive presumption of dependency. De- expenses of the parent and spouse. pendency will be determined on the [28 FR 29, Jan. 1, 1963, as amended at 40 FR facts in the individual case under the 16065, Apr. 9, 1975; 49 FR 47004, Nov. 30, 1984; principles outlined in this section. 61 FR 20727, May 8, 1996]

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§ 3.251 Income of parents; dependency § 3.252 Annual income; pension; Mexi- and indemnity compensation. can border period and later war periods. (a) Annual income limitations and rates. (1) Dependency and indemnity (a) Annual income limitations; old-law compensation is not payable to a par- pension. Where the right to old-law ent or parents whose annual income ex- pension is payable under section 306(b) ceeds the limitations set forth in 38 of Pub. L. 95–588 (92 Stat. 2497), pension U.S.C. 1315 (b), (c), or (d). is not payable if the pensioner’s annual income exceeds the income limitations (2) Where there is only one parent, prescribed by § 3.26(c). and the parent has remarried and is (b) Annual income and net worth limi- living with his or her spouse, depend- tations; Pub. L. 86–211. Pension is not ency and indemnity compensation will payable to a veteran, surviving spouse be paid under either the formula in 38 or child whose annual income exceeds U.S.C. 1315(b)(1) or the formula in 38 the limitations set forth in 38 U.S.C. U.S.C. 1315(d), whichever will provide 1521, 1541 or 1542; or to a veteran, sur- the greater monthly rate of depend- viving spouse or child if it is reason- ency and indemnity compensation. The able that some part of the claimant’s total combined annual income of the estate be consumed for his or her main- parent and spouse will be counted. tenance. Where a veteran and spouse are living together, the separate in- (Authority: 38 U.S.C. 1315) come of the spouse will be considered (3) Where the claim is based on serv- as the veteran’s income as provided in ice in the Commonwealth Army of the § 3.262(b). Philippines, or as a guerrilla or as a Philippine Scout under section 14, Pub. (Authority: 38 U.S.C. 1543) L. 190, 79th Congress, the income limi- (c) Basic rule. Payments of any kind tation will be at a rate of $0.50 for each or from any source will be counted as dollar. See § 3.100(b). income unless specifically excluded. In- come will be counted for the calendar (Authority: 38 U.S.C. 107) year in which it is received and total income for the full calendar year will (4) If the remarriage of a parent has be considered except as provided in been terminated, or the parent is sepa- § 3.260. rated from his or her spouse, the rate (d) Veteran with a spouse. For the pur- of dependency and indemnity com- pose of determining eligibility under pensation for the parent will be that paragraph (b) of this section the pen- which would be payable if there were sion rates provided by 38 U.S.C. 1521(c) one parent alone or two parents not may be authorized for a married vet- living together, whichever is applica- eran if he or she is living with or, if es- ble. tranged, is reasonably contributing to (5) Where there are two parents liv- the support of his or her spouse. The ing and only one parent has filed claim, determination of ‘‘reasonable’’ con- the rate of dependency and indemnity tribution will be based on all the cir- compensation will be that which would cumstances in the case, considering the be payable if both parents had filed income and estate of the veteran and claim. the separate income and estate of the (b) Basic rule. Payments of any kind spouse. Apportionment of the veteran’s or from any source will be counted as pension under § 3.451 meets the require- income unless specifically excluded. In- ment of reasonable contribution. come will be counted for the calendar (e) Surviving spouse with a child—(1) year in which it is received and total Child. The term ‘‘child’’ means a child income for the full calendar year will as defined in § 3.57. Where a veteran’s be considered except as provided in child is born after the veteran dies, the § 3.260. surviving spouse will not be considered [28 FR 29, Jan. 1, 1963, as amended at 31 FR a surviving spouse with a child prior to 14455, Nov. 10, 1966; 40 FR 16065, Apr. 9, 1975; the child’s date of birth. 41 FR 15411, Apr. 13, 1976; 60 FR 18355, Apr. 11, (2) Veteran’s child not in surviving 1995] spouse’s custody. Where the veteran was

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survived by a surviving spouse and by a the amount specified in 38 U.S.C. 1521 child, the income increments for a sur- (d)(2). viving spouse and child apply even though the child is not the child of the CROSS REFERENCES: Basic pension deter- surviving spouse and not in his or her minations. See § 3.314. Determination of per- custody. manent need for regular aid and attendance and ‘‘permanently bedridden’’. See § 3.352. (3) Income of child. The separate income received by a child or children, [28 FR 30, Jan. 1, 1963, as amended at 40 FR regardless of custody, will not be con- 16065, Apr. 9, 1975; 41 FR 15411, Apr. 13, 1976; 41 FR 56803, Dec. 30, 1976; 44 FR 45935, Aug. 6, sidered in computing the surviving 1979; 61 FR 20727, May 8, 1996; 62 FR 5529, Feb. spouse’s income. Where the separate 6, 1997] income of the child is turned over to the surviving spouse, only so much of §§ 3.253–3.255 [Reserved] the money as is left after deducting any expenses for maintenance of the § 3.256 Eligibility reporting require- child will be considered the surviving ments. spouse’s income. (a) Obligation to report changes in fac- (4) Alternative rate. Whenever the tors affecting entitlement. Any individual monthly pension rate payable to the who has applied for or receives pension surviving spouse under the formula in or parents’ dependency and indemnity 38 U.S.C. 1541(c) is less than the rate compensation must promptly notify payable for one child under section 1542 the Secretary of any change affecting if the surviving spouse were not enti- entitlement in any of the following: tled, the surviving spouse will be paid (1) Income; the child’s rate. (2) Net worth or corpus of estate; (f) Income over maximum; reduced aid (3) Marital status; (4) Nursing home patient status; and attendance allowance. Beginning (5) School enrollment status of a January 1, 1977, veterans in need of reg- child 18 years of age or older; or ular aid and attendance who are not re- (6) Any other factor that affects enti- ceiving pension because their income tlement to benefits under the provi- exceeds the applicable statutory limi- sions of this part. tation may be eligible for a reduced aid (b) Eligibility verification reports. (1) and attendance allowance. The amount For purposes of this section the term payable is the regular aid and attend- eligibility verification report means a ance allowance authorized by 38 U.S.C. form prescribed by the Secretary that 1521(d)(1) reduced by 16.6 percent for is used to request income, net worth (if each $100, or portion thereof, by which applicable), dependency status, and any the veteran’s annual income exceeds other information necessary to deter- the applicable maximum income limi- mine or verify entitlement to pension tation. The reduced aid and attendance or parents’ dependency and indemnity allowance is payable when: compensation. (1) A veteran in need of regular aid (2) VA will not require old law or sec- and attendance is denied pension under tion 306 pensioners to submit eligi- 38 U.S.C. 1521 solely because the vet- bility verification reports unless the eran’s annual income exceeds the ap- Secretary determines that doing so is plicable maximum income limitation necessary to preserve program integ- in 38 U.S.C. 1521 (b)(3) and (c)(3); or rity. (2) Pension payable under 38 U.S.C. (3) Except for a parent who has at- 1521 to a veteran in need of regular aid tained 72 years of age and has been paid and attendance is discontinued solely dependency and indemnity compensa- because the veteran’s annual income tion during two consecutive calendar exceeds the applicable maximum in- years, the Secretary shall require an come limitation in 38 U.S.C. 1521 (b)(3) eligibility verification report from in- or (c)(3); and dividuals receiving parents’ depend- (3) The veteran’s annual income ex- ency and indemnity compensation ceeds the applicable maximum income under the following circumstances: limitation in 38 U.S.C. 1521 (b)(3) or (i) If the Social Security Administra- (c)(3) by an amount not greater than tion has not verified the beneficiary’s

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Social Security number and, if the ben- (b) Deferred determinations. Where eficiary is married, his or her spouse’s there is doubt as to the amount of the Social Security number. anticipated income, pension or depend- (ii) If there is reason to believe that ency and indemnity compensation will the beneficiary or, if the spouse’s in- be allowed at the lowest appropriate come could affect entitlement, his or rate or will be withheld, as may be in her spouse may have received income order, until the end of the calendar other than Social Security during the year when the total income received current or previous calendar year; or during the year may be determined. (iii) If the Secretary determines that (c) Proportionate income limitations; ex- an eligibility verification report is nec- cess income. A proportionate income essary to preserve program integrity. limitation will be established under (4) An individual who applies for or the conditions set forth in paragraph receives pension or parents’ depend- (d) of this section except where appli- ency and indemnity compensation as cation of a proportionate income limi- defined in §§ 3.3 or 3.5 of this part shall, tation would result in payment of a as a condition of receipt or continued lower rate than would be payable on receipt of benefits, furnish the Depart- the basis of income for the full cal- ment of Veterans Affairs an eligibility endar year. verification report upon request. (d) Proportionate income limitations; (c) If VA requests that a claimant or computation. Income limitations will be beneficiary submit an eligibility computed proportionately for the pur- verification report but he or she fails pose of determining initial entitle- to do so within 60 days of the date of ment, or for resuming payments on an the VA request, the Secretary shall award which was discontinued for a suspend the award or disallow the reason other than excess income or a claim. change in marital or dependency status. A proportionate income limitation (Authority: Sec. 306(a)(2) and (b)(3), Pub. L. will be established for the period from 95–588, 92 Stat. 2508–2509; 38 U.S.C. 1315(e)) the date of entitlement to the end of (The Office of Management and Budget has that calendar year. The total amount approved the information collection require- of income received by the claimant ments in this section under control numbers during that period will govern the pay- 2900–0101 and 2900–0624) ment of benefits. Income received prior [63 FR 53595, Oct. 6, 1998, as amended at 66 FR to the date of entitlement will be dis- 56614, Nov. 9, 2001; 73 FR 40466, July 15, 2008] regarded. (e) Proportionate income limitations; § 3.257 Children; no surviving spouse spouse. In determining whether propor- entitled. tionate computation is applicable to a Where pension is not payable to a claim under Pub. L. 86–211 (73 Stat. surviving spouse because his or her an- 432), the total income for the calendar nual income exceeds the statutory lim- year of entitlement of both veteran and itation or because of his or her net that of the spouse available for use of worth, payments will be made to or for the veteran will be considered. If a pro- the child or children as if there were no portionate income limitation is then surviving spouse. applicable, it will be applied to both the veteran’s and the spouse’s income. [62 FR 5529, Feb. 6, 1997] The spouse’s income will not be included, however, where his or her total §§ 3.258–3.259 [Reserved] income for the calendar year does not exceed $1,200. § 3.260 Computation of income. (f) Rate changes. In years after that For entitlement to pension or de- for which entitlement to pension or dependency and indemnity compensation, pendency and indemnity compensation income will be counted for the calendar has been established or reestablished as year in which it is received. provided in paragraph (d) of this sec- (a) Installments. Income will be deter- tion, total income for the calendar mined by the total amount received or year will govern the payment of bene- anticipated during the calendar year. fits. Where there is a change in the

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conditions of entitlement because of a (g) Fractions of dollars. In computing change in marital or dependency sta- a claimant’s annual income a fraction tus, entitlement for each period will be of a dollar will be disregarded for the determined separately. For the period purpose of determining entitlement to when the claimant was married or had monthly payments of pension and de- a dependent, the rate payable will be pendency and indemnity compensation. determined under the annual income (Authority: 38 U.S.C. 1315(g)(2); 1503(b)) limitation or increment applicable to a [28 FR 30, Jan. 1, 1963, as amended at 29 FR claimant who is married or has a de- 2944, Mar. 4, 1964; 37 FR 6677, Apr. 1, 1972; 40 pendent. For the period when the FR 16066, Apr. 9, 1975] claimant was unmarried or without a dependent, the rate payable will be de- § 3.261 Character of income; exclusions termined under the annual income lim- and estates. itation or increment applicable to a The following factors will be consid- claimant who is not married or has no ered in determining whether a claim- dependent. Since these determinations ant meets the requirements of §§ 3.250, will be based on total income for the 3.251 and 3.252 with reference to depend- calendar year, it is not material wheth- ency, income limitations and corpus of er such income was received before or estate: after the change of status. (a) Income.

Pension; sec- Dependency Pension; old- tion 306 (vet- Dependency and indemnity law (veterans, erans, sur- Income (parents) compensation surviving viving See— (parents) spouses and spouses and children) children)

(1) Total income from employment, business, Included ...... Included ...... Included ...... Included ...... § 3.262(a). investments, or rents. (2) Income of spouse ...... do ...... do ...... Excluded ...... do ...... § 3.262(b). (3) Earnings of members of family under legal ...... do ...... Excluded ...... do ...... Excluded ...... § 3.250(b)(2). age. § 3.252(e)(3). (4) Earned income of child-claimant ...... Included ...... do. (5) Gifts, including contributions from adult members of family: Property ...... do ...... Included ...... do ...... do ...... § 3.262(k). Money ...... do ...... do ...... do ...... Included. (6) Value of maintenance by relative, friend, Excluded ...... Excluded ...... Excluded ...... Excluded ...... § 3.262(c). or organization. (7) Rental value of property owned by and re- ...... do ...... do ...... do ...... do. sided in by claimant. (8) Charitable donations ...... do ...... do ...... Included ...... do ...... § 3.262(d). (9) Family allowance authorized by service Included ...... Included ...... do ...... Included. personnel. (10) Reasonable value of allowances to per- ...... do ...... do ...... do ...... Included ex- son in service in addition to base pay. cept as earned income of child-claimant. (11) Mustering-out pay ...... Excluded ...... do ...... Excluded ...... do. (12) Six-months’ death gratuity ...... do ...... Excluded ...... do ...... Excluded. (13) Bonus or similar cash gratuity paid by Excluded ...... Excluded ...... Excluded ...... Excluded. any State based on service in Armed Forces of United States. (14) Retired Serviceman’s Family Protection Plan; Survivor Benefit Plan (10 U.S.C. ch. 73): Retired Serviceman’s Family Protection Plan (Subch. I): Annuities ...... do ...... do ...... do ...... do. Refund (10 U.S.C. 1446) ...... Included ...... Included ...... Included ...... Included. Survivor Benefit Plan (Subch. II) (Pub. L...... do ...... do ...... do ...... do ...... § 3.262(e). 92–425; 86 Stat. 706). Annuity under § 653, Pub. L. 100–456 ...... Included ...... Included ...... Excluded ...... Excluded ...... § 3.262(r) (15) Retirement pay received direct from serv- Included ...... Included ...... Included ...... Included ...... § 3.262(e). ice department...... do ...... do ...... do ...... do ...... § 3.262(h). (16) Retirement benefits; general ...... do ...... do ...... do ...... do ...... § 3.262(e).

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(17) Social security benefits: Old age and survivors’, and disability in- Included ...... Included ...... Included ...... Included ...... § 3.262(f). surance. Charitable programs ...... Excluded ...... Excluded ...... do ...... Excluded. Lump-sum death payments ...... Included ...... do ...... do ...... do. Supplemental security income ...... Excluded ...... Excluded ...... do ...... do. (18) Railroad Retirement benefits ...... do ...... Included ...... Disability pen- Included ...... § 3.262(g). sion—Ex- cluded Death pension—In- cluded. (19) Retirement pay waived under Federal Excluded ...... Excluded ...... Excluded ...... do ...... § 3.262(h). statute. (20) Department of Veterans Affairs payments: Pension ...... Excluded ...... Excluded ...... Excluded ...... Excluded. Compensation and dependency and in- ...... do ...... do ...... do ...... do. demnity compensation. World War I adjusted compensation ...... do ...... Included ...... do ...... Included. U.S. Government life insurance or na- Excluded ...... Excluded ...... Excluded ...... Excluded. tional service life insurance for disability or death, maturity of endowment policies, and dividends, including special and termination dividends. Servicemembers’ group life insurance ...... do ...... do ...... do ...... do. Veterans’ group life insurance ...... do ...... do ...... do ...... do. Servicemembers’ indemnity ...... do ...... do ...... do ...... do. Subsistence allowance (38 U.S.C. ch. 31) Included ...... Included ...... Included ...... Included. Veterans educational assistance in ex- ...... do ...... do ...... do ...... do. cess of amounts expended for training (38 U.S.C. ch. 34). Educational assistance (38 U.S.C. ch. 35) ...... Excluded ...... Excluded. Special allowance under 38 U.S.C. Excluded ...... Included ...... do ...... Included. 1312(a). Statutory burial allowance ...... do ...... Excluded ...... do ...... Excluded. Accrued ...... do ...... Included, ex- ...... do ...... Included, except accept accrued as crued as reimburse- reimburse- ment. ment. (21) Compensation (civilian) for injury or Included ...... Included ...... Included ...... Included ...... § 3.262(i). death. (22) Contributions by a public or private employer to a: Public or private health or hospitalization Excluded ...... Excluded ...... Excluded ...... Excluded. plan for an active or retired employee. Retired employee as reimbursement for Included ...... Included ...... Excluded ...... Excluded. premiums for supplementary medical insurance benefits under the Social Se- curity Program (Pub. L. 91–588; 84 Stat. 1580). (23) Overtime pay; Government employees ... Included ...... Included ...... Disability pen- Included. sion—Ex- cluded. Death pension—In- cluded. (24) Commercial life insurance; disability, ac- Included (as Included (as Included Included (as § 3.262(j). cident, or health insurance, less payments received). received). (special received). of medical or hospital expenses resulting provision). from the accident or disease for which payments are made. (25) Commercial annuities or endowments ...... do ...... Included ...... do ...... Included § 3.262(j). (special (special provision). provision). (26) Dividends from commercial insurance ..... Excluded ...... Excluded ...... Excluded ...... Excluded. (27) Insurance under Merchant Marine Act of Included ...... Included ...... Included ...... Included. 1936, as amended.

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(28) Reimbursement for casualty loss (Pub. L. Included ...... Excluded ...... Included ...... Included ...... § 3.262(t) 100–687). Other fire Insurance ...... Excluded ...... Excluded ...... Excluded ...... Excluded ...... § 3.262(t) (29) Bequests, devises and inheritances: Property ...... Included ...... Excluded ...... Included ...... do ...... § 3.262(k). Money ...... do ...... Included ...... do ...... Included. Joint bank accounts ...... do ...... do ...... do ...... Excluded ...... § 3.262(k)(1). (30) Profit from sale of property ...... Excluded ...... Excluded ...... Excluded ...... Excluded ...... § 3.262(k). (31) Jury duty or obligatory civic duties ...... do ...... do ...... do ...... do. (32) Relocation payments (Pub. L. 90–448; ...... do ...... do ...... do ...... do ...... § 3.262(c). Pub. L. 90–495). (33) The following programs administered by the ACTION Agency: Foster Grandparent Program and Older ...... do ...... do ...... do ...... do ...... § 3.262(q)(1). Americans Community Service Pro- grams payments (Pub. L. 93–29; 87 Stat. 55). Volunteers in Service to America ...... do ...... do ...... do ...... do ...... § 3.262(q)(2). (VISTA), University Year for ACTION (UYA), Program for Local Services (PLS), ACTION Cooperative Volunteers (ACV), Foster Grandparent Program (FGP), and Older American Community Service Programs, Retired Senior Vol- unteer Program (RSVP), Senior Com- panion Program (Pub. L. 93–113; 87 Stat. 394). (34) The Service Corps of Retired Executives ...... do ...... do ...... do ...... do ...... § 3.262(q)(2). (SCORE) and Active Corps of Executives (ACE) administered by the Small Business Administration. (Pub. L. 93–113; 87 Stat. 394). (35) Income received under Section 6 of the Excluded ...... Excluded ...... Included ...... Included ...... § 3.262(t) Radiation Exposure Compensation Act (Pub. L. 101–426). (36) Income received from income tax returns Excluded ...... Excluded ...... Excluded ...... Excluded ...... § 3.262(u) (37) Other amounts excluded from income by Excluded ...... Excluded ...... Excluded ...... Excluded ...... § 3.262(v) statute. § 3.279 1 The compensation received through a crime victim compensation program will be excluded from income computations unless the total amount of assistance received from all federally funded programs is sufficient to fully compensate the claimant for losses suffered as a result of the crime. (b) Deduction of amounts paid by claimant.

Pension; sec- Pension; old- tion 306 (vet- Dependency Dependency law (veterans, erans, sur- Deduction (parents) and indemnity surviving viving See compensation spouses, and spouses, and children) children)

(1) Unusual medical expenses ...... Not authorized Authorized ..... Not authorized Authorized ..... §§ 3.262(b)(1) and (1). (2) Veteran: just debts, expenses of last Not authorized Authorized, Not authorized Authorized ..... §§ 3.262(m) illness and burial. except and (o). debts. (3) Veteran’s spouse or child: expenses of Not authorized Not authorized Not authorized Authorized ..... § 3.262(n). last illness and burial. (4) Parent’s spouse: just debts; expenses Not authorized Authorized ...... § 3.262(o). of last illness and burial. (5) Prepayment on real property mort- Not authorized Not authorized Not authorized Authorized ..... §§ 3.262(k)(6). gages after death of spouse (Pub. L. 91–588).

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Pension; sec- Pension; old- tion 306 (vet- Dependency Dependency law (veterans, erans, sur- (parents) and indemnity widows, and viving See compensation children) spouses, and children)

Considered condi- tionally ...... Not consid- Not consid- Considered ... § 3.263. ered. ered.

[28 FR 31, Jan. 1, 1963, as amended at 29 FR 15205, Nov. 11, 1964; 31 FR 15632, Dec. 13, 1966; 33 FR 15286, Oct. 15, 1968; 36 FR 8446, May 6, 1971; 37 FR 6677, Apr. 1, 1972; 37 FR 7092, Apr. 8, 1972; 37 FR 21436, Oct. 11, 1972; 38 FR 872, Jan. 5, 1973; 38 FR 26804, Sept. 26, 1973; 38 FR 28826, Oct. 17, 1973; 40 FR 13305, Mar. 26, 1975; 40 FR 57459, Dec. 10, 1975; 41 FR 17386, Apr. 26, 1976; 42 FR 43834, Aug. 31, 1977; 57 FR 59298, Dec. 15, 1992; 58 FR 12174, Mar. 3, 1993; 58 FR 31909, June 7, 1993; 58 FR 33766, June 21, 1993; 59 FR 37696, July 25, 1994; 60 FR 2522, Jan. 10, 1995; 60 FR 18355, Apr. 11, 1995; 62 FR 51278, Sept. 30, 1997; 67 FR 49586, July 31, 2002; 68 FR 60852, Oct. 24, 2003; 70 FR 15591, Mar. 28, 2005; 76 FR 4248, Jan. 25, 2011; 83 FR 47268, Sept 18, 2018]

§ 3.262 Evaluation of income. both parents have remarried and each is living with his or her spouse. If the (a) Total income. All income from sources such as wages, salaries, earn- remarriage of a parent has been termi- ings, bonuses from employers, income nated, or the parent is separated from from a business or profession or from his or her spouse, income of the spouse investments or rents as well as the fair will be excluded. value of personal services, goods or (2) Veterans. The separate income of room and board received in lieu thereof the spouse of a disabled veteran who is will be included. entitled to pension under laws in effect (1) Salary is not determined by on June 30, 1960, will not be considered. ‘‘takehome’’ pay, but includes deduc- Where pension is payable under section tions made under a retirement act or 306(a) of Pub. L. 95–588, to a veteran plan and amounts withheld by virtue of who is living with a spouse there will income tax laws. be included as income of the veteran (2) The gross income from a business all income of the spouse in excess of or profession may be reduced by the whichever is the greater, the amount of necessary operating expenses, such as the spouse income exclusion specified cost of goods sold, or expenditures for in section 306(a)(2)(B) of Pub. L. 95–588 rent, taxes, and upkeep. Depreciation as increased from time to time under is not a deductible expense. The cost of section 306 (a)(3) of Pub. L. 95–588 or the repairs or replacement may be de- total earned income of the spouse, ducted. The value of an increase in which is reasonably available to or for stock inventory of a business is not the veteran, unless hardship to the vet- considered income. eran would result. Each time there is (3) A loss sustained in operating a an increase in the spouse income exclu- business, profession, or farm or from sion pursuant to section 306(a)(3) of investments may not be deducted from Pub. L. 95–588, the actual amount of income derived from any other source. the exclusion will be published in the (b) Income of spouse. Income of the ‘‘Notices’’ section of the FEDERAL REG- spouse will be determined under the ISTER. The presumption that inclusion rules applicable to income of the of such income is available to the vet- claimant. eran and would not work a hardship on (1) Parents. Where the mother and fa- him or her may be rebutted by evi- ther, or remarried parent and spouse dence of unavailability or of expenses are living together, the total combined beyond the usual family requirements. income will be considered in determining dependency, or in determining (Authority: 38 U.S.C. 1521(f); sec. 306(a)(2)(B) of Pub. L. 95–588) the rate of dependency and indemnity compensation payable to the parent. (c) Maintenance. The value of mainte- This rule is equally applicable where nance furnished by a relative, friend, or

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a charitable organization (civic or gov- L. 86–211 (73 Stat. 432), 10 percent of the ernmental) will not be considered in- retirement payments received by a vet- come. Where the claimant is main- eran, the veteran’s spouse, surviving tained in a rest home or other commu- spouse, or child will be excluded. The nity institution or facility, public or remaining 90 percent will be considered private, because of impaired health or income as received. Where a person was advanced age, money paid to the home receiving or entitled to receive pension or to the claimant to cover the cost of and retirement benefits based on his or maintenance will not be considered inher own employment on December 31, come, regardless of whether it is fur- 1964, the retirement payments will not nished by a relative, friend or chari- be considered income until the amount table organization. The expense of of the claimant personal contribution maintenance is not deductible if it is (as distinguished from amounts con- paid from the claimant’s income, ex- tributed by the employer) has been re- cept as provided in paragraph (l) of this ceived. Thereafter the 10 percent exclu- section in claims for dependency and sion will apply. indemnity compensation. (3) Compensation. In determining de- (d) Charitable donations. Charitable pendency of a parent for compensation donations from public or private relief purposes, all payments will be consid- or welfare organizations will not be ered income as received. considered income except in claims for (4) Dependency and indemnity com- pension under laws in effect on June 30, pensation. Except as provided in this 1960. In the latter cases, additional subparagraph, effective January 1, 1967, charitable allowances received by a in determining income for dependency claimant for members of his or her and indemnity compensation purposes, family may not be divided per capita in 10 percent of the retirement payments determining the amount of the claim- received by a deceased veteran’s parent ant’s income. or by the parent’s spouse will be ex- (e) Retirement benefits; general. Retire- cluded. The remaining 90 percent will ment benefits, including an annuity or be considered income as received. endowment, paid under a Federal, Where a parent was receiving or enti- State, municipal, or private business or tled to receive dependency and indem- industrial plan are considered income nity compensation and retirement ben- as limited by this paragraph. Where efits based on his or her own employ- the payments received consist of part ment on December 31, 1966, the retire- principal and part interest, interest ment payments will not be considered will not be counted separately. income until the amount of the claim- (1) Protected pension. Except as pro- ant’s personal contribution (as distin- vided in this paragraph (e)(1), effective guished from amounts contributed by January 1, 1965, in determining income the employer) has been received. for pension purposes under laws in ef- Thereafter the 10 percent exclusion will fect on June 30, 1960, 10 percent of the apply. retirement payments received by a veteran, surviving spouse, or child will be (Authority: 38 U.S.C. 1315(g), 1503(a)(6)) excluded. The remaining 90 percent (f) Social security benefits. Old age and will be considered income as received. survivor’s insurance and disability in- Where the retirement benefit is based surance under title II of the Social Se- on the claimant’s own employment, curity Act will be considered income as payments will not be considered in- a retirement benefit under the rules come until the amount of the claim- contained in paragraph (e) of this sec- ant’s personal contribution (as distin- tion. Benefits received under non- guished from amounts contributed by contributory programs, such as old age the employer) has been received. assistance, aid to dependent children, Thereafter the 10 percent exclusion will and supplemental security income are apply. subject to the rules contained in para- (2) Pension; Pub. L. 86–211. Except as graph (d) of this section applicable to provided in this subparagraph, effec- charitable donations. The lumpsum tive January 1, 1965, in determining in- death payment under title II of the So- come for pension purposes, under Pub. cial Security Act will be considered as

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income except in claims for depend- or recovery of such moneys will be con- ency and indemnity compensation and sidered income as received, except as for pension under Pub. L. 86–211 (73 provided in paragraph (i)(2) of this sec- Stat. 432). tion. The criteria of paragraph (i)(1) of (g) Railroad retirement benefits—(1) this section are for application as to all Parents, surviving spouses and children. medical expenditures after such award Retirement benefits received from the or settlement. Railroad Retirement Board will be considered as income under the rules con- (Authority: Pub. L. 92–198, 85 Stat. 663) tained in paragraph (e) of this section. (See paragraph (h) of this section as to (2) For pension, effective October 7, waivers.) 1966, and for dependency and indemnity (2) Veterans. Effective July 1, 1959, re- compensation effective January 1, 1967, tirement benefits received from the if payments based on permanent and Railroad Retirement Board were ex- total disability or death are received cluded from consideration as income in from the Bureau of Employees’ Com- determining eligibility for disability pensation, Social Security Administra- pension. (45 U.S.C. 228s–1) This exclu- tion or Railroad Retirement Board, or sion continues to be applicable to pursuant to any workmen’s compensa- claims under laws in effect on June 30, tion or employer’s liability statute, 1960. For purposes of section 306 pen- there will be excluded 10 percent of the sion, such retirement benefits will be payments received after deduction of considered as income under the rules medical, legal, and other expenses as contained in paragraph (e) of this sec- authorized by paragraph (i)(1) of this tion. section. The 10 percent exclusion does (h) Retirement benefits waived. Except not apply to damages collected inci- as provided in this paragraph, retire- dent to a tort suit under other than an ment benefits (pension or retirement employer’s liability law of the United payments) which have been waived will States or a political subdivision of the be included as income. For the purpose United States, or to determinations of of determining dependency of a parent, dependency for compensation purposes. or eligibility of a parent for depend- (j) Commercial insurance—(1) Annuity ency and indemnity compensation or or endowment insurance. For pension, eligibility of a veteran, surviving effective January 1, 1965, or for depend- spouse, or child for pension under laws ency and indemnity compensation, ef- in effect on June 30, 1960, retirement fective January 1, 1967, the provisions benefits from the following sources of paragraph (e) of this section apply. which have been waived pursuant to In such cases, 10 percent of the pay- Federal statute will not be considered ments received will be excluded. In de- as income: pendency and indemnity compensation (1) Civil Service Retirement and Dis- claims, where the parent is receiving or ability Fund; (2) Railroad Retirement Board (see entitled to receive dependency and in- paragraph (g)(2) of this section); demnity compensation on December 31, (3) District of Columbia, firemen, po- 1966, and is also receiving or entitled to licemen, or public school teachers; receive annuity payments on that date, (4) Former lighthouse service. or endowment insurance matures on or (i) Compensation (civilian) for injury or before that date, no part of the pay- death. (1) Compensation paid by the Bu- ments received will be considered in- reau of Employees’ Compensation, De- come until the full amount of the con- partment of Labor (of the United sideration has been received, after States), or by Social Security Adminis- which 10 percent of the amount re- tration, or by Railroad Retirement ceived will be excluded. For compensa- Board, or pursuant to any workmen’s tion, the full amount of each payment compensation or employer’s liability is considered income as received. statute, or damages collected because (2) Life insurance; general. In deter- of personal injury or death, less med- mining dependency, or eligibility for ical, legal, or other expenses incident dependency and indemnity compensa- to the injury or death, or the collection tion, or for section 306 pension the full

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amount of payments is considered in- (2) Income-producing property. Income come as received. For section 306 pen- received from real or personal property sion, effective October 7, 1966, and for owned by the claimant will be counted. dependency and indemnity compensa- The claimant’s share will be deter- tion, effective January 1, 1967, 10 per- mined in proportion to his right ac- cent of the payments received will be cording to the rules of ownership. excluded. (3) Sale of property. Except as pro- (3) Life insurance; old-law pension. For vided in paragraphs (k)(4) and (5) of pension under laws in effect on June 30, this section, net profit from the sale of 1960, 10 percent of the payments re- real or personal property will be count- ceived will be excluded. Where it is ed. In determining net profit from the considered that life insurance was re- sale of property owned prior to the ceived in a lump sum in the calendar date of entitlement, the value at the year in which the veteran died and pay- date of entitlement will be considered ments are actually received in suc- in relation to the selling price. Where ceeding years, no part of the payments payments are received in installments, received in succeeding years will be payments will not be considered in- considered income until an amount come until the claimant has received equal to the lump-sum face value of the amounts equal to the value of the prop- policy has been received, after which 10 erty at the date of entitlement. Prin- percent of the payments received will cipal and interest will not be counted be excluded. The 10 percent exclusion is separately. authorized effective October 7, 1966. (4) Homes. Net profit from the sale of (4) Disability, accident or health insur- the claimant’s residence which is re- ance. For pension, effective October 7, ceived during the calendar year of sale 1966, and for dependency and indemnity will not be considered as income under compensation, effective January 1, the following conditions: 1967, there will be excluded 10 percent (i) To the extent that it is applied of the payments received for disability within the calendar year of the sale, or after deduction of medical, legal, or the succeeding calendar year, to the other expenses incident to the dis- purchase price of another residence as ability. For compensation, after deduc- his principal dwelling; tion of such expenses, the full amount (ii) Such application of the net profit of payments is considered income as re- is reported within 1 year following the ceived. date so applied, and (k) Property—(1) Ownership. The (iii) The net profit is so applied after terms of the recorded deed or other evi- January 10, 1962, to a purchase made dence of title will constitute evidence after said date. of ownership of real or personal prop- This exclusion will not apply where the erty. This includes property acquired net profit is applied to the price of a through purchase, bequest or inherit- home purchased earlier than the cal- ance except that, effective January 1, endar year preceding the calendar year 1971, amounts in joint accounts in of sale of the old residence. banks and similar institutions acquired (5) Sale of property; section 306 pension by reason of the death of another joint and dependency and indemnity compensa- owner shall not be considered income tion. For pension under section 306 pen- of a survivor for section 306 pension sion and for dependency and indemnity purposes. With the foregoing exception, compensation, profit from the sale of if property is owned jointly each per- real or personal property other than in son will be considered as owning a pro- the course of a business will not be portionate share. The claimant’s share considered income. This applies to of property held in partnership will be property acquired either before or after determined on the facts found. In the the date of entitlement. Any amounts absence of evidence to the contrary, received in excess of the sales price the claimant’s statement as to the will be counted as income. Where pay- terms of ownership will be accepted. ments are received in installments, principal and interest will not be (Authority: Sec. 306, Pub. L. 95–588; 92 Stat. counted separately. For pension, this 2508) provision is effective January 1, 1965;

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for dependency and indemnity com- come questionnaire. For the definition pensation, January 1, 1967. of what constitutes a medical expense, see § 3.278, Deductible medical ex- (Authority: 38 U.S.C. 1503(a)(10); 38 U.S.C. penses. 1315(g)) (1) Veterans. For the purpose of sec- (6) Payments on mortgages on real prop- tion 306 pension, there will be excluded erty; section 306 pension. Effective Janu- unreimbursed amounts paid by the vet- ary 1, 1971, for the purposes of section eran for unusual medical expenses of 306 pension, an amount equaling any self, spouse, and other relatives of the prepayments made by a veteran or sur- veteran in the ascending as well as de- viving spouse on a mortgage or similar scending class who are members or type security instrument in existence constructive members of the veteran’s at the death of veteran or spouse on household and whom the veteran has a real property which prior to the death moral or legal obligation to support. was the principal residence of the vet- (2) Surviving spouses. For the purpose eran and spouse will be excluded from of section 306 pension, there will be ex- consideration as income if such pay- cluded unreimbursed amounts paid by ment was made after the death and the surviving spouse for the unusual prior to the close of the year suc- medical expenses of self, the veteran’s ceeding the year of death. children, and other relatives of the sur- (Authority: 38 U.S.C. 1503(a)(14)) viving spouse in the ascending as well as descending class who are members (l) Unusual medical expenses. Within or constructive members of the sur- the provisions of paragraphs (l)(1) viving spouse’s household and whom through (4) of this section there will be the surviving spouse has a moral or excluded from the amount of the legal obligation to support. claimant’s annual income any unreim- (3) Children. For the purpose of sec- bursed amounts which have been paid tion 306 pension, there will be excluded within the calendar year for unusual unreimbursed amounts paid by a child medical expenses regardless of the year the indebtedness was incurred. The for the unusual medical expenses of term unusual means excessive. It does self, parent, and brothers and sisters of not describe the nature of a medical the child. condition but rather the amount ex- (4) Parents. For dependency and in- pended for medical treatment in rela- demnity compensation purposes there tionship to the claimant’s resources will be excluded unreimbursed amounts available for sustaining a reasonable paid by the parent for the unusual mode of life. Unreimbursed expendi- medical expenses of self, spouse, and tures which exceed 5 percent of the other relatives of the parent in the as- claimant’s reported annual income will cending as well as descending class who be considered unusual. Health, acci- are members or constructive members dent, sickness and hospitalization in- of the parent’s household and whom surance premiums will be included as the parent has a moral or legal obliga- medical expenses in determining tion to support. If the combined annual whether the claimant’s unreimbursed income of the parent and the parent’s medical expenses meet the criterion for spouse is the basis for dependency and unusual. A claimant’s statement as to indemnity compensation, the exclusion amounts expended for medical expenses is applicable to the combined annual ordinarily will be accepted unless the income and extends to the unusual un- circumstances create doubt as to its reimbursed medical expenses of the credibility. An estimate based on a spouse’s relatives in the ascending as clear and reasonable expectation that well as descending class who are mem- unusual medical expenditure will be re- bers or constructive members of the alized may be accepted for the purpose household and whom the parent’s of authorizing prospective payments of spouse has a moral or legal obligation benefits subject to necessary adjust- to support. ment in the award upon receipt of an amended estimate or after the end of (Authority: 38 U.S.C. 1315(f)(3); Sec. 306, Pub. the calendar year upon receipt of an in- L. 95–588; 92 Stat. 2508)

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(m) Veteran’s final expenses; pension. ial to the extent that such expenses are In claims for pension under section 306, not reimbursed under 38 U.S.C. ch. 23 or there will be excluded, as provided in 51. The term ‘‘just debts’’ does not in- paragraph (p) of this section: clude any debt that is secured by real (1) From the income of a surviving or personal property. spouse, amounts equal to amounts paid for the expenses of the veteran’s last (Authority: 38 U.S.C. 1315(f)) illness; (2) From the income of a surviving (p) Final expenses; year of exclusion. spouse, or of a child of a deceased vet- For the purpose of paragraphs (m), (n) eran where there is no surviving and (o) of this section, in the absence spouse, amounts equal to amounts paid of contradictory information, the by the surviving spouse or child for the claimant’s statement will be accepted veteran’s just debts, for the expenses of as to the nature, amount and date of the veteran’s last illness, and burial to payment, and identity of the creditor. the extent such expenses are not reim- Except as provided in this paragraph, bursed by the Department of Veterans payments will be deducted from annual Affairs. The term ‘‘just debts’’ does not income for the year in which such pay- include any debt that is secured by real ments are made. Payments made by a or personal property. veteran, the spouse or surviving spouse of a veteran, child or, in dependency (Authority: Sec. 306, Pub. L. 95–588; 92 Stat. 2508) and indemnity compensation claims, by a parent during the calendar year (n) Final expenses of veteran’s spouse following the year in which the vet- or child; pension. In claims for pension eran, spouse or child died may be de- under section 306, there will be ex- ducted from the claimant’s income for cluded, as provided in paragraph (p) of this section: the year of last illness or burial if this (1) From the income of a veteran, deduction is advantageous to the amounts equal to amounts paid by the claimant. veteran for the last illness and burial (q) Volunteer programs—(1) Payments of the veteran’s deceased spouse or under Foster Grandparent Program and child; and Older Americans Community Service Pro- (2) From the income of a spouse or grams. Effective May 3, 1973, compensa- surviving spouse, amounts equal to tion received under the Foster Grand- amounts paid by her as spouse or sur- parent Program and the Older Ameri- viving spouse of the deceased veteran cans Community Service Programs for the last illness and burial of a child will be excluded from income in claims of such veteran. for compensation, pension and dependency and indemnity compensation. (Authority: Sec. 306, Pub. L. 95–588; 92 Stat. 2508) (Authority: Pub. L. 93–29; 87 Stat. 55) (o) Final expenses of veteran or parent’s (2) Payments under domestic volunteer spouse; dependency and indemnity com- service act programs. Effective October pensation. In claims for dependency and 1, 1973, compensation or reimbursement indemnity compensation there will be excluded from the income of a parent, received under a Domestic Volunteer as provided in paragraph (p) of this sec- Service Act Program (including Volun- tion, amounts equal to amounts paid teers in Service to America (VISTA), by the parent for: University Year for ACTION (UYA), (1) The expenses of the veteran’s last Program for Local Services (PLS), AC- illness and burial to the extent that TION Cooperative Volunteers (ACV), such expenses are not reimbursed Foster Grandparent Program (FGP) under 38 U.S.C. ch. 23. and Older American Community Serv- (2) The parent’s deceased spouse’s ice Program, Retired Senior Volunteer just debts, the expenses of the spouse’s Program (RSVP), Senior Companion last illness to the extent such expenses Program, Service Corps of Retired Ex- are not reimbursed under 38 U.S.C. ch. ecutives (SCORE) and Active Corps of 51 and the expenses of the spouse’s bur- Executives (ACE), will be excluded

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from income in claims for compensa- (u) Income tax returns. VA will ex- tion, pension and dependency and include from income payments from indemnity compensation. come tax returns. See § 3.279(d)(1).

(Authority: Pub. L. 93–113; 87 Stat. 394) (Authority: 26 U.S.C. 6409) (r) Survivor benefit annuity. For the (v) Statutory exclusions. Other purposes of old law pension and section amounts excluded from income by stat- 306 pension, there shall be excluded ute. See § 3.279. VA will exclude from from computation of income annuity income any amount designated by stat- paid by the Department of Defense ute as not countable as income, regard- under the authority of section 653, Pub- less of whether or not it is listed in lic Law 100–456 to qualified surviving this section or in § 3.279. spouses of veterans who died prior to (Authority: 42 U.S.C. 1395w–141(g)(6)) November 1, 1953. (September 29, 1988) [28 FR 32, Jan. 1, 1963]

(Authority: Sec. 653, Pub. L. 100–456; 102 Stat. EDITORIAL NOTE: For FEDERAL REGISTER ci- 1991) tations affecting § 3.262, see the List of CFR (s) Reimbursement for casualty loss. Sections Affected, which appears in the Finding Aids section of the printed volume The following sources of reimburse- and at www.govinfo.gov. ments for casualty loss will not be considered as income in determining enti- § 3.263 Corpus of estate; net worth. tlement to benefits under the programs specified. Amounts to be excluded from (a) General. The following rules are computation in parens’ dependency and for application in determining the cor- indemnity compensation claims are pus of estate of a parent where depend- limited to amounts of reimbursement ency is a factor under § 3.250, and the which do not exceed the greater of the net worth of a veteran, surviving fair market value or the reasonable re- spouse, or child where pension is sub- placement cost of the property in- ject to Pub. L. 86–211 (73 Stat. 432) volved at the time immediately pre- under § 3.252(b). Only the estate of the parent, in claims based on dependency, ceding the loss. or the estate of the veteran, surviving (1) Reimbursement for casualty loss spouse, or child-claimant in claims for of any kind in determining entitlement pension, will be considered. In the ab- to parents’ dependency and indemnity sence of contradictory information, the compensation benefits. For purposes of claimant’s statement as to ownership paragraph (t) of this section, the term and estimate of value will be accepted. ‘‘casualty loss’’ means the complete or (b) Definition. Corpus of estate and net partial destruction of property result- worth mean the market value, less ing from an identifiable event of a sud- mortgages or other encumbrances, of den, unexpected or unusual nature. all real and personal property owned by (2) Proceeds from fire insurance in the claimant except the claimant’s determining dependency of a parent for dwelling (single-family unit) including compensation purposes or in deter- a reasonable lot area, and personal ef- mining entitlement to old-law and sec- fects suitable to and consistent with tion 306 pension benefits. the claimant’s reasonable mode of life. (c) Ownership. See § 3.262(k). (Authority: 38 U.S.C. 1315(f)) (d) Evaluation. In determining wheth- (t) Radiation Exposure Compensation er some part of the claimant’s estate Act. For the purposes of parents’ de- should be consumed for his or her pendency and indemnity compensation maintenance, consideration will be and dependency of parents under § 3.250, given to the amount of the claimant’s there shall be excluded from income income, together with the following computation payments under Section 6 factors: whether the property can be of the Radiation Exposure Compensa- readily converted into cash at no sub- tion Act of 1990. stantial sacrifice; ability to dispose of property as limited by community (Authority: 42 U.S.C. 2210 note) property laws; life expectancy; number

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of dependents who meet the require- unless specifically excluded under ments of § 3.250(b)(2); potential rate of § 3.272. depletion, including unusual medical expenses under the principles outlined (Authority: 38 U.S.C. 501) in § 3.262(l) for the claimant and his or (1) Recurring income. Recurring inher dependents. come means income which is received (e) VA will exclude from the corpus or anticipated in equal amounts and at of estate or net worth any amount des- regular intervals (e.g., weekly, month- ignated by statute as not countable as ly, quarterly, etc.), and which will con- a resource. See § 3.279. tinue throughout an entire 12-month (Authority: 42 U.S.C. 1395w–141(g)(6)) annualization period. The amount of recurring income for pension purposes [28 FR 33, Jan. 1, 1963, as amended at 39 FR 28527, Aug. 8, 1974; 44 FR 45936, Aug. 6, 1979; 57 will be the amount received or antici- FR 59299, Dec. 15, 1992; 58 FR 33767, June 21, pated during a 12-month annualization 1993; 62 FR 51279, Sept. 30, 1997; 67 FR 49587, period. Recurring income which termi- July 31, 2002; 68 FR 60852, Oct. 24, 2003; 70 FR nates prior to being counted for at 15591, Mar. 28, 2005; 76 FR 4248, Jan. 25, 2011; least one full 12-month annualization 83 FR 47269, Sept. 18, 2018] period will be treated as nonrecurring income for computation purposes. § 3.270 Applicability of various dependency, income and estate regu- (2) Irregular income. Irregular income lations. means income which is received or anticipated during a 12-month (a) Sections 3.250 through 3.263 and annualization period, but which is re- 3.278 through 3.279. These sections are ceived in unequal amounts or at irreg- applicable to dependency, income and ular intervals. The amount of irregular estate determinations needed to deter- income for pension purposes will be the mine entitlement or continued entitle- amount received or anticipated during ment for the following programs: a 12-month annualization period fol- (1) Parents’ death compensation. lowing initial receipt of such income. (2) Old-law pension. (3) Nonrecurring income. Nonrecurring (3) Section 306 pension. income means income received or an- (4) Parents’ dependency and indem- ticipated on a one-time basis during a nity compensation. 12-month annualization period (e.g., an NOTE: Citations to title 38 U.S.C. in §§ 3.250 inheritance). Pension computations of through 3.263 and 3.278 through 3.279 refer- income will include nonrecurring in- ring to section 306 or old-law pension gen- come for a full 12-month annualization erally refer to provisions of law in effect on period following receipt of the income. December 31, 1978. (b) Salary. Salary means the gross (b) Sections 3.271 through 3.279. These amount of a person’s earnings or wages sections apply to income and estate de- before any deductions are made for terminations of entitlement to the im- such things as taxes, insurance, retire- proved disability and death pension ment plans, social security, etc. program which became effective Janu- (c) Business, farm or professional in- ary 1, 1979. come. (1) This includes gross income [44 FR 45936, Aug. 6, 1979, as amended at 83 from a business, farm or profession as FR 47269, Sept. 18, 2018] reduced by the necessary operating expenses such as cost of goods sold, or ex- REGULATIONS APPLICABLE TO THE IM- penditures for rent, taxes, and upkeep, PROVED PENSION PROGRAM WHICH BE- or costs of repairs or replacements. The CAME EFFECTIVE JANUARY 1, 1979 value of an increase in stock inventory of a business is not considered income. SOURCE: 44 FR 45936, Aug. 6, 1979, unless (2) Depreciation is not a deductible otherwise noted. expense. (3) A loss sustained in operating a § 3.271 Computation of income. business, profession, farm, or from in- (a) General. Payments of any kind vestments, may not be deducted from from any source shall be counted as in- income derived from any other source. come during the 12-month (d) Income from property. Income from annualization period in which received real or personal property is countable

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as income of the property’s owner. The compensation or employer’s liability terms of a recorded deed or other evi- statute, or damages collected because dence of title shall constitute evidence of personal injury or death, will be con- of ownership. This includes property sidered income as received. However, acquired through purchase, gift, devise, medical, legal or other expenses inci- or descent. If property is owned jointly, dent to the injury or death, or incident income of the various owners shall be to the collection or recovery of the determined in proportion to shares of amount of the award or settlement, ownership of the property. The owner’s may be deducted. The criteria in shares of income held in partnership § 3.272(g) apply as to all medical ex- shall be determined on the basis of the penditures after the award or settle- facts found. ment. (e) Installments. Income shall be determined by the total amount received (Authority: 38 U.S.C. 501) or anticipated during a 12-month annualization period. (h) Fractions of dollars. Fractions of dollars will be disregarded in com- (Authority: 38 U.S.C. 501) puting annual income. (f) Deferred determinations. (1) When (i) Waiver of receipt of income. Poten- an individual is unable to predict with tial income that is not excludable certainty the amount of countable an- under § 3.272 or § 3.279 but is waived by nual income, the annual rate of im- an individual is included as countable proved pension shall be reduced by the income of the individual. However, if greatest amount of anticipated count- an individual withdraws a claim for So- able income until the end of the 12- cial Security benefits, after a finding month annualization period, when of entitlement to those benefits, in total income received during that pe- order to maintain eligibility for unre- riod will be determined and adjust- duced Social Security benefits upon ments in pension payable made accord- reaching a particular age, VA will not ingly. regard this potential income as having been waived and will therefore not (Authority: 38 U.S.C. 501) count it. (2) When a claimed dependent is shown to have income which exceeds (Authority: 38 U.S.C. 1503 (a)). the additional amount of benefits pay- [44 FR 45936, Aug. 6, 1979, as amended at 53 able based on the claimed dependency, FR 23235, June 21, 1988; 57 FR 59299, Dec. 15, but evidence requirements of § 3.204, 1992; 83 FR 47269, Sept. 18, 2018] § 3.205, § 3.209, or § 3.210 have not been met, the maximum annual rate of im- § 3.272 Exclusions from income. proved pension shall be determined The following shall be excluded from without consideration of the claimed countable income for the purpose of de- dependency. This amount shall be re- termining entitlement to improved duced by an amount which includes the pension. Unless otherwise provided, ex- income of the unestablished dependent. penses deductible under this section Adjustments in computation of the are deductible only during the 12- maximum annual rate of improved pen- month annualization period in which sion shall occur following receipt of they were paid. evidence necessary to establish the dependency. (Authority: 38 U.S.C. 501) (Authority: 38 U.S.C. 501(a)) (a) Welfare. Donations from public or (g) Compensation (civilian) for injury or private relief, welfare, or charitable or- death. Compensation paid by the ganizations. United States Department of Labor, Office of Workers’ Compensation Pro- (Authority: 38 U.S.C. 1503(a)(1)) grams, Social Security Administra- (b) Maintenance. The value of mainte- tion, or the Railroad Retirement nance furnished by a relative, friend, or Board, or pursuant to any worker’s

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a charitable organization (civic or gov- tions acquired by reason of death of the ernmental) will not be considered in- other joint owner. come. Where the individual is maintained in a rest home or other commu- (Authority: 38 U.S.C. 1503(a)(7)) nity institution or facility, public or (g) Medical expenses. Within the pro- private, because of impaired health or visions of the following paragraphs, advanced age, money paid to the home there will be excluded from the amount or the individual to cover the cost of of an individual’s annual income any maintenance will not be considered in- unreimbursed amounts which have come, regardless of whether it is fur- been paid within the 12-month nished by a relative, friend, or chari- annualization period for medical ex- table organization. The expense of penses regardless of when the indebted- maintenance is not deductible if it is ness was incurred. An estimate based paid from the individual’s income. on a clear and reasonable expectation that unusual medical expenditure will (Authority: 38 U.S.C. 501, 1503(a)(1)) be realized may be accepted for the purpose of authorizing prospective pay- (c) Department of Veterans Affairs pen- ments of benefits subject to necessary sion benefits. Payments under chapter adjustment in the award upon receipt 15 of title 38, United States Code, in- of an amended estimate, or after the cluding accrued pension benefits pay- end of the 12-month annualization pe- able under 38 U.S.C. 5121. riod upon receipt of an eligibility verification report. For the definition (Authority: 38 U.S.C. 1503(a)(2)) of what constitutes a medical expense, (d) Reimbursement for casualty loss. see § 3.278, Deductible medical ex- Reimbursement of any kind for any penses. casualty loss. The amount to be ex- (Authority: 38 U.S.C. 501) cluded is not to exceed the greater of the fair market value or the reasonable (1) Veteran’s income. Unreimbursed replacement cost of the property in- medical expenses will be excluded when volved at the time immediately pre- all of the following requirements are ceding the loss. For purposes of this met: paragraph, the term ‘‘casualty loss’’ (i) They were or will be paid by a vet- means the complete or partial destruc- eran or spouse for medical expenses of tion of property resulting from an iden- the veteran, spouse, children, parents tifiable event of a sudden, unexpected and other relatives for whom there is a or unusual nature. moral or legal obligation of support; (ii) They were or will be incurred on (Authority: 38 U.S.C. 1503(a)(5)) behalf of a person who is a member or a constructive member of the veteran’s (e) Profit from sale of property. Profit or spouse’s household; and realized from the disposition of real or (iii) They were or will be in excess of personal property other than in the 5 percent of the applicable maximum course of business, except amounts re- annual pension rate or rates for the ceived in excess of the sales price, for veteran (including increased pension example, interest on deferred sales is for family members but excluding in- included as income. In installment creased pension because of need for aid sales, any payments received until the and attendance or being housebound) sales price is recovered are not in- as in effect during the 12-month cluded as income, but any amounts re- annualization period in which the med- ceived which exceed the sales price are ical expenses were paid. included, regardless of whether they (2) Surviving spouse’s income. Unreim- represent principal or interest. bursed medical expenses will be excluded when all of the following re- (Authority: 38 U.S.C. 1503(a)(6)) quirements are met: (i) They were or will be paid by a sur- (f) Joint accounts. Amounts in joint viving spouse for medical expenses of accounts in banks and similar institu- the spouse, veteran’s children, parents

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and other relatives for whom there is a ness and burial (to the extent such bur- moral or legal obligation of support; ial expenses are not reimbursed under (ii) They were or will be incurred on chapter 23 of title 38 U.S.C.) will be de- behalf of a person who is a member or ducted from the income of the sur- a constructive member of the spouse’s viving spouse or child. The term ‘‘just household; and debts’’ does not include any debt that (iii) They were or will be in excess of is secured by real or personal property. 5 percent of the applicable maximum annual pension rate or rates for the (Authority: 38 U.S.C. 1503(a)(3)) spouse (including increased pension for family members but excluding in- (2) Spouse or child’s final expenses. (i) creased pension because of need for aid Amounts paid by a veteran for the ex- and attendance or being housebound) penses of the last illness and burial of as in effect during the 12-month the veteran’s deceased spouse or child annualization period in which the med- will be deducted from the veteran’s in- ical expenses were paid. come. (ii) Amounts paid by a veteran’s (Authority: 38 U.S.C. 501) spouse or surviving spouse for expenses (3) Children’s income. Unreimbursed of the last illness and burial of the vet- amounts paid by a child for medical ex- eran’s child will be deducted from the penses of self, parent, brothers and sis- spouse’s or surviving spouse’s income. ters, to the extent that such amounts exceed 5 percent of the maximum an- (Authority: 38 U.S.C. 1503(a)(4)) nual pension rate or rates payable to (i) Educational expenses. Amounts the child during the 12-month equal to expenses paid by a veteran or annualization period in which the med- surviving spouse pursuing a course of ical expenses were paid. education or vocational rehabilitation or training, to include amounts paid (Authority: 38 U.S.C. 501) for tuition, fees, books, and materials, (h) Expenses of last illnesses, burials, and in the case of a veteran or sur- and just debts. Expenses specified in viving spouse in need of regular aid and paragraphs (h)(1) and (h)(2) of this sec- attendance, unreimbursed amounts tion which are paid during the calendar paid for unusual transportation ex- year following that in which death oc- penses in connection with the pursuit curred may be deducted from annual of such course. Unusual transportation income for the 12-month annualization expenses are those exceeding the rea- period in which they were paid or from sonable expenses which would have annual income for any 12-month been incurred by a nondisabled person annualization period which begins dur- using an appropriate means of trans- ing the calendar year of death, which- portation (public transportation, if rea- ever is to the claimant’s advantage. sonably available). Otherwise, such expenses are deductible only for the 12-month (Authority: 38 U.S.C. 1503(a)(9)) annualization period in which they (j) Child’s income. In the case of a were paid. child, any current work income re- (Authority: 38 U.S.C. 501) ceived during the year, to the extent that the total amount of such income (1) Veteran’s final expenses. (i) does not exceed an amount equal to the Amounts paid by a spouse before a vet- sum of the following: eran’s death for expenses of the vet- (1) The lowest amount of gross in- eran’s last illness will be deducted come for which a Federal income tax from the income of the surviving return must be filed, as specified in spouse. section 6012(a) of the Internal Revenue Code of 1954, by an individual who is (Authority: 38 U.S.C. 1503(a)(3)) not married (as determined under sec- (ii) Amounts paid by a surviving tion 143 of such Code), and is not a sur- spouse or child of a veteran for the vet- viving spouse (as defined in section 2(a) eran’s just debts, expenses of last ill- of such Code), and is not a head of

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household (as defined in section 2(b) of dren or the countable annual income of such Code); and the veteran or surviving spouse. (2) If the child is pursuing a course of postsecondary education or vocational (Authority: 38 U.S.C. 1521(h), 1541(g)) rehabilitation or training, the amount paid by the child for those educational (n) Survivor benefit annuity. Annuity expenses including the amount paid for paid by the Department of Defense tuition, fees, books, and materials. under the authority of section 653, Pub- lic Law 100–456 to qualified surviving (Authority: 38 U.S.C. 1503(a)(10)) spouses of veterans who died prior to November 1, 1953. (September 29, 1988) (k) Veterans’ benefits from States and municipalities. VA will exclude from in- (Authority: Sec. 653, Pub. L. 100–456; 102 Stat. come payments from a State or mu- 1991) nicipality to a veteran of a monetary benefit that is paid as a veterans’ ben- (o) Cash surrender value of life insur- efit due to injury or disease. VA will ance. That portion of proceeds from the exclude up to $5,000 of such benefit in cash surrender of a life insurance pol- any annualization period. icy which represents a return of insurance premiums. (Authority: 38 U.S.C. 1503(a)(11)) (l) Distributions of funds under 38 (Authority: 38 U.S.C. 501(a)) U.S.C. 1718. Distributions from the De- (p) Radiation Exposure Compensation partment of Veterans Affairs Special Act. Any payment made under Section Therapeutic and Rehabilitation Activi- 6 of the Radiation Exposure Compensa- ties Fund as a result of participation in tion Act of 1990. a therapeutic or rehabilitation activity under 38 U.S.C. 1718 and payments from (Authority: 42 U.S.C. 2210 note) participation in a program of rehabili- tative services provided as part of the (q) Life insurance proceeds. Lump-sum care furnished by a State home and proceeds of any life insurance policy on which is approved by VA as conforming a veteran. to standards for activities under 38 U.S.C. 1718 shall be considered dona- (Authority: 38 U.S.C. 1503(a)(12)) tions from a public or private relief or (r) Income tax returns. VA will exclude welfare organization and shall not be from income payments from income countable as income for pension pur- tax returns. See § 3.279(e)(1). poses. (Authority: 26 U.S.C. 6409) (Authority: 38 U.S.C. 1718(f)) (m) Hardship exclusion of child’s avail- (s) Reimbursements for loss. VA will ex- able income. When hardship is estab- clude from income payments described lished under the provisions of in 38 U.S.C. 1503(a)(5). § 3.23(d)(6) of this part, there shall be excluded from the available income of (Authority: 38 U.S.C. 1503(a)(5)) any child or children an amount equal (t) Statutory exclusions. Other to the amount by which annual ex- amounts excluded from income by stat- penses necessary for reasonable family ute. See § 3.279. VA will exclude from maintenance exceed the sum of count- income any amount designated by stat- able annual income plus VA pension ute as not countable as income, regard- entitlement computed without consid- less of whether or not it is listed in eration of this exclusion. The amount this section or in § 3.279. of this exclusion shall not exceed the available income of any child or chil- [44 FR 45936, Aug. 6, 1979] dren, and annual expenses necessary EDITORIAL NOTE: For FEDERAL REGISTER ci- for reasonable family maintenance tations affecting § 3.272, see the List of CFR shall not include any expenses which Sections Affected, which appears in the were considered in determining the Finding Aids section of the printed volume available income of the child or chil- and at www.govinfo.gov.

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§ 3.273 Rate computation. mencing on the effective date on which the nonrecurring income is countable. The commencement date of change in benefit payments based on rate com- (Authority: 38 U.S.C. 501) putations under the provisions of this section will be determined under the (d) Recurring and irregular income. The provisions of § 3.31 or § 3.660. amount of recurring and irregular in- (a) Initial award. For the purpose of come anticipated or received by a bene- determining initial entitlement, or for ficiary shall be added to determine the resuming payments on an award which beneficiary’s annual rate of income for was previously discontinued, the a 12-month annualization period com- monthly rate of pension payable to a mencing at the beginning of the 12- beneficiary shall be computed by re- month annualization, subject to the ducing the beneficiary’s applicable provisions of § 3.660(a)(2) of this chap- maximum pension rate by the bene- ter. ficiary’s countable income on the effec- [44 FR 45936, Aug. 6, 1979, as amended at 48 tive date of entitlement and dividing FR 34472, July 29, 1983; 57 FR 59300, Dec. 15, the remainder by 12. Effective June 1, 1992] 1983, the provisions of § 3.29(b) apply to this paragraph. Recomputation of rates § 3.274 Net worth and VA pension. due to changes in the maximum annual (a) Net worth limit. For purposes of en- pension rate or rate of income fol- titlement to VA pension, the net worth lowing the initial date of entitlement limit effective October 18, 2018 is are subject to the provisions of para- $123,600. This limit will be increased by graph (b) of this section. the same percentage as the Social Se- (b) Running awards—(1) Change in curity increase whenever there is a maximum annual pension rate. Whenever cost-of-living increase in benefit there is change in a beneficiary’s appli- amounts payable under section 215(i) of cable maximum annual pension rate, title II of the Social Security Act (42 the monthly rate of pension payable U.S.C. 415(i)). VA will publish the cur- shall be computed by reducing the new rent limit on its website at applicable maximum annual pension www.benefits.va.gov/pension/. rate by the beneficiary’s countable in- (b) When a claimant’s or beneficiary’s net worth exceeds the limit. Except as come on the effective date of the provided in paragraph (h)(2) of this sec- change in the applicable maximum an- tion, VA will deny or discontinue pen- nual pension rate, and dividing the re- sion if a claimant’s or beneficiary’s net mainder by 12. Effective June 1, 1983, worth exceeds the net worth limit in the provisions of § 3.29(b) apply to this paragraph (a) of this section. paragraph. (1) Net worth. Net worth means the (2) Change in amount of income. When- sum of a claimant’s or beneficiary’s as- ever there is a change in a beneficiary’s sets and annual income. amount of countable income the (2) Asset calculation. VA will calculate monthly rate of pension payable shall a claimant’s or beneficiary’s assets be computed by reducing the bene- under this section and § 3.275. ficiary’s applicable maximum annual (3) Annual income calculation. VA will pension rate by the beneficiary’s new calculate a claimant’s or beneficiary’s amount of countable income on the ef- annual income under § 3.271, and will fective date of the change in the include the annual income of depend- amount of income, and dividing the re- ents as required by law. See §§ 3.23(d)(4), mainder by 12. Effective June 1, 1983, 3.23(d)(5), and 3.24 for more information the provisions of § 3.29(b) apply to this on annual income included when VA paragraph. calculates a claimant’s or beneficiary’s (c) Nonrecurring income. The amount pension entitlement rate. In calcu- of any nonrecurring countable income lating annual income for this purpose, (e.g. an inheritance) received by a ben- VA will subtract all applicable deduct- eficiary shall be added to the bene- ible expenses, to include appropriate ficiary’s annual rate of income for a 12- prospective medical expenses under month annualization period com- § 3.272(g).

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(4) Example of net worth calculation. his or her annual income and the value For purposes of this example, presume of his or her assets. the net worth limit is $123,600. A claim- (3) Dependent child asset calculation. ant’s assets total $117,000 and annual VA will calculate the value of a de- income is $9,000. Therefore, adding the pendent child’s assets under this sec- claimant’s annual income to assets tion and § 3.275. A dependent child’s as- produces net worth of $126,000. This sets include the child’s assets only. amount exceeds the net worth limit. (4) Dependent child annual income cal- (c) Assets of other individuals included culation. VA will calculate a dependent as claimant’s or beneficiary’s assets—(1) child’s annual income under § 3.271, and Claimant or beneficiary is a veteran. A will include the annual income of the veteran’s assets include the assets of child as well as the annual income of the veteran as well as the assets of his the veteran or surviving spouse that or her spouse, if the veteran has a would be included if VA were calcu- spouse. lating a pension entitlement rate for (2) Claimant or beneficiary is a sur- the veteran or surviving spouse. viving spouse. A surviving spouse’s as- (e) When VA calculates net worth. VA sets include only the assets of the sur- calculates net worth only when: viving spouse. (1) VA has received— (3) Claimant or beneficiary is a sur- (i) An original pension claim; viving child. (i) If a surviving child has (ii) A new pension claim after a pe- no custodian or is in the custody of an riod of non-entitlement; institution, the child’s assets include (iii) A request to establish a new de- only the assets of the child. pendent; or (ii) If a surviving child has a custo- (iv) Information that a veteran’s, dian other than an institution, the surviving spouse’s, or child’s net worth child’s assets include the assets of the has increased or decreased; and child as well as the assets of the custo- (2) The claimant or beneficiary meets dian. If the child is in the joint custody the other factors necessary for pension of his or her natural or adoptive parent entitlement as provided in § 3.3(a)(3) and a stepparent, the child’s assets also and (b)(4). include the assets of the stepparent. See § 3.57(d) for more information on NOTE TO PARAGRAPH (e): If the evidence shows that net worth exceeds the net worth child custody for pension purposes. limit, VA may decide the pension claim be- (d) How a child’s net worth affects a fore determining if the claimant meets other veteran’s or surviving spouse’s pension entitlement factors. VA will notify the entitlement. VA will not consider a child claimant of the entitlement factors that to be a veteran’s or surviving spouse’s have not been established. dependent child for pension purposes if (f) How net worth decreases. Net worth the child’s net worth exceeds the net may decrease in three ways: Assets can worth limit in paragraph (a) of this decrease, annual income can decrease, section. or both assets and annual income can (1) Dependent child and potential de- decrease. pendent child. For the purposes of this (1) How assets decrease. A veteran, section— surviving spouse, or child, or someone (i) ‘‘Dependent child’’ refers to a acting on their behalf, may decrease child for whom a veteran or a surviving assets by spending them on any item or spouse is entitled to an increased max- service for which fair market value is imum annual pension rate. received unless the item or items pur- (ii) ‘‘Potential dependent child’’ re- chased are themselves part of net fers to a child who is excluded from a worth. See § 3.276(a)(4) for the definition veteran’s or surviving spouse’s pension of ‘‘fair market value.’’ The expenses award solely or partly because of this must be those of the veteran, surviving paragraph (d). References in this sec- spouse, or child, or a relative of the tion to ‘‘dependent child’’ include a po- veteran, surviving spouse, or child. The tential dependent child. relative must be a member or construc- (2) Dependent child net worth. A de- tive member of the veteran’s, surviving pendent child’s net worth is the sum of spouse’s, or child’s household.

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(2) How annual income decreases. See (ii) Reduced pension or denied in- §§ 3.271 through 3.273. creased pension entitlement for a vet- (3) Example 1. For purposes of this ex- eran or surviving spouse based on a de- ample, presume the net worth limit is pendent child’s excessive net worth. $123,600 and the maximum annual pen- (2) Effective date of entitlement or in- sion rate (MAPR) is $12,000. A claimant creased entitlement. The effective date of has assets of $115,000 and annual in- entitlement or increased entitlement is come of $9,000. Adding annual income the day net worth ceases to exceed the to assets produces a net worth of limit. For this effective date to apply, $124,000, which exceeds the net worth the claimant or beneficiary must sub- limit. However, the claimant is a pa- mit a certified statement that net tient in a nursing home and pays an- worth has decreased and VA must re- nual unreimbursed nursing home fees ceive the certified statement before the of $29,000. Reasonably predictable unre- pension claim has become finally adju- imbursed medical expenses are deduct- dicated under § 3.160. This means that ible from annual income under § 3.272(g) VA must receive the certified state- to the extent that they exceed 5 per- ment within 1 year after its decision cent of the applicable MAPR. VA sub- notice to the claimant concerning the tracts the projected expenditures that denial, reduction, or discontinuance exceed 5 percent of the applicable unless the claimant appeals VA’s deci- MAPR (here, $28,400) from annual in- sion. Otherwise, the effective date is come, which decreases annual income the date VA receives a new pension to zero. The claimant’s net worth is claim. In accordance with § 3.277(a), VA now $115,000; therefore, net worth is may require the claimant or bene- within the limit to qualify for VA pen- ficiary to submit additional evidence sion. as the individual circumstances may (4) Example 2. For purposes of this ex- require. ample, presume the net worth limit is (h) Reduction or discontinuance of $123,600 and the MAPR is $12,000. A beneficiary’s pension entitlement based on claimant has assets of $123,000 and an- excessive net worth—(1) Effective date of nual income of $9,500. Adding annual reduction or discontinuance. When an in- income to assets produces a net worth of $132,500, which exceeds the net worth crease in a beneficiary’s or dependent limit. The claimant pays reasonably child’s net worth results in a pension predictable annual unreimbursed med- reduction or discontinuance because ical expenses of $9,000. Unreimbursed net worth exceeds the limit, the effec- medical expenses are deductible from tive date of reduction or discontinu- annual income under § 3.272(g) to the ance is the last day of the calendar extent that they exceed 5 percent of year in which net worth exceeds the the applicable MAPR. VA subtracts the limit. projected expenditures that exceed 5 (2) Net worth decreases before the effec- percent of the applicable MAPR (here, tive date. If net worth decreases to the $8,400) from annual income, which de- limit or below the limit before the ef- creases annual income to $1,100. This fective date provided in paragraph decreases net worth to $124,100, which (h)(1) of this section, VA will not re- is still over the limit. VA must deny duce or discontinue the pension award the claim for excessive net worth. on the basis of excessive net worth. (g) Effective dates of pension entitle- (i) Additional effective-date provisions ment or increased entitlement after a de- for dependent children—(1) Establishing a nial, reduction, or discontinuance based dependent child on veteran’s or surviving on excessive net worth—(1) Scope of para- spouse’s pension award results in in- graph. This paragraph (g) applies when creased pension entitlement. When estab- VA has: lishing a dependent child on a veteran’s (i) Discontinued pension or denied or surviving spouse’s pension award re- pension entitlement for a veteran, sur- sults in increased pension entitlement viving spouse, or surviving child based for the veteran or surviving spouse, VA on the veteran’s, surviving spouse’s, or will apply the effective-date provisions surviving child’s excessive net worth; in paragraphs (g) and (h) of this sec- or tion.

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(2) Establishing a dependent child on square feet), unless the additional acre- veteran’s or surviving spouse’s pension age is not marketable. award results in decreased pension enti- (b) Exclusions from assets. Assets do tlement. (i) When a dependent child’s not include the following: non-excessive net worth results in de- (1) Primary residence. The value of a creased pension entitlement for the claimant’s primary residence (single- veteran or surviving spouse, the effec- family unit), including the residential tive date of the decreased pension enti- lot area, in which the claimant has an tlement rate (i.e., VA action to add the ownership interest. VA recognizes one child to the award) is the end of the year that the child’s net worth de- primary residence per claimant. If the creases. residence is sold after pension entitle- (ii) When a dependent child’s exces- ment is established, any net proceeds sive net worth results in increased pen- from the sale is an asset except to the sion entitlement for the veteran or sur- extent the proceeds are used to pur- viving spouse, the effective date of the chase another residence within the increased pension entitlement rate same calendar year as the year in (i.e., VA action to remove the child which the sale occurred. from the award) is the date that VA re- (i) Personal mortgage not deductible. ceives a claim for an increased rate VA will not subtract from a claimant’s based on the child’s net worth increase. assets the amount of any mortgages or (Authority: 38 U.S.C. 1522, 1543, 5110, 5112) encumbrances on a claimant’s primary residence. [83 FR 47269, Sept 18, 2018] (ii) Claimant not residing in primary § 3.275 How VA determines the asset residence. Although rental income amount for pension net worth de- counts as annual income as provided in terminations. § 3.271(d), VA will not include a claim- (a) Definitions pertaining to assets—(1) ant’s primary residence as an asset Assets. The term assets means the fair even if the claimant resides in any of market value of all property that an the following as defined in § 3.278(b): individual owns, including all real and (A) A nursing home or medical foster personal property, unless excluded home; under paragraph (b) of this section, less (B) A care facility other than a nurs- the amount of mortgages or other ening home; or cumbrances specific to the mortgaged (C) The home of a family member for or encumbered property. VA will consider the terms of the recorded deed or health care or custodial care. other evidence of title to be proof of (2) Personal effects. Value of personal ownership of a particular asset. See also effects suitable to and consistent with § 3.276(a)(4), which defines ‘‘fair market a reasonable mode of life, such as ap- value.’’ pliances and family transportation ve- (2) Claimant. (i) Except as provided in hicles. paragraph (a)(2)(ii) of this section, for (3) Radiation Exposure Compensation the purposes of this section and § 3.276, Act payments. Payments made under claimant means a pension beneficiary, a dependent spouse, or a dependent or po- section 6 of the Radiation Exposure tential dependent child as described in Compensation Act of 1990. § 3.274(d), as well as a veteran, surviving spouse, or surviving child pen- (Authority: 42 U.S.C. 2210 (note)) sion applicant. (4) Ricky Ray Hemophilia Relief Fund (ii) For the purpose of paragraph payments. Payments made under sec- (b)(1) of this section, claimant means a tion 103(c) and excluded under section pension beneficiary or applicant who is 103(h)(2) of the Ricky Ray Hemophilia a veteran, a surviving spouse, or a sur- Relief Fund Act of 1998. viving child. (3) Residential lot area. For purposes (Authority: 42 U.S.C. 300c–22 (note)) of this section, residential lot area means the lot on which a residence sits (5) Energy Employees Occupational Ill- that does not exceed 2 acres (87,120 ness Compensation Program payments.

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Payments made under the Energy Em- (ii) Example 2. For purposes of this ployees Occupational Illness Com- example, presume the net worth limit pensation Program. under § 3.274(a) is $123,600. A claimant’s annual income is zero and her total as- (Authority: 42 U.S.C. 7385e(2)) sets are $125,000, which exceeds the net (6) Payments to Aleuts. Payments worth limit. In addition, the claimant made to certain Aleuts under 50 U.S.C. transferred $30,000 by giving $20,000 to App. 1989c–5. her married son and giving $10,000 to a friend. The claimant’s covered asset (Authority: 50 U.S.C. App. 1989c–5(d)(2)) amount is $30,000 because this is the amount by which the claimant’s net (7) Statutory exclusions. Other worth would have exceeded the limit amounts excluded from assets by stat- due to the covered assets alone. ute. See § 3.279. VA will exclude from (4) Fair market value means the price assets any amount designated by stat- at which an asset would change hands ute as not countable as a resource, re- between a willing buyer and a willing gardless of whether or not it is listed in seller, neither being under any compul- this section or in § 3.279. sion to buy or to sell and both having (Authority: 38 U.S.C. 1522, 1543) reasonable knowledge of relevant facts. VA will use the best available informa- [83 FR 47271, Sept. 18, 2018] tion to determine fair market value, such as inspections, appraisals, public § 3.276 Asset transfers and penalty pe- records, and the market value of simi- riods. lar property if applicable. (a) Asset transfer definitions. For pur- (5) Transfer for less than fair market poses of this section— value means— (1) Claimant has the same meaning as (i) Selling, conveying, gifting, or ex- defined in § 3.275(a)(2)(i). changing an asset for an amount less (2) Covered asset means an asset than the fair market value of the asset; that— or (i) Was part of a claimant’s net (ii) A voluntary asset transfer to, or worth; purchase of, any financial instrument (ii) Was transferred for less than fair or investment that reduces net worth market value; and by transferring the asset to, or pur- (iii) If not transferred, would have chasing, the instrument or investment caused or partially caused the claim- unless the claimant establishes that he ant’s net worth to exceed the net worth or she has the ability to liquidate the limit under § 3.274(a). entire balance of the asset for the (3) Covered asset amount means the claimant’s own benefit. If the claimant monetary amount by which a claim- establishes that the asset can be liq- ant’s net worth would have exceeded uidated, the asset is included as net the limit due to the covered asset alone worth. Examples of such instruments if the uncompensated value of the cov- or investments include— ered asset had been included in net (A) Annuities. Annuity means a finan- worth. cial instrument that provides income (i) Example 1. For purposes of this ex- over a defined period of time for an ini- ample, presume the net worth limit tial payment of principal. under § 3.274(a) is $123,600. A claimant’s (B) Trusts. Trust means a legal instru- assets total $115,900 and his annual in- ment by which an individual (the come is zero. However, the claimant grantor) transfers property to an indi- transferred $30,000 by giving it to a vidual or an entity (the trustee), who friend. If the claimant had not trans- manages the property according to the ferred the $30,000, his net worth would terms of the trust, whether for the have been $145,900, which exceeds the grantor’s own benefit or for the benefit net worth limit. The claimant’s cov- of another individual. ered asset amount is $22,300, because (6) Uncompensated value means the this is the amount by which the claim- difference between the fair market ant’s net worth would have exceeded value of an asset and the amount of the limit due to the covered asset. compensation an individual receives

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for it. In the case of a trust, annuity, veteran’s spouse, or a veteran’s sur- or other financial instrument or in- viving spouse transfers to a trust es- vestment described in paragraph tablished on behalf of a child of the (a)(5)(ii) of this section, uncompensated veteran if: value means the amount of money or (1) VA rates or has rated the child in- the monetary value of any other type capable of self-support under § 3.356; of asset transferred to such a trust, an- and nuity, or other financial instrument or (2) There is no circumstance under investment. which distributions from the trust can (7) Look-back period means the 36- be used to benefit the veteran, the vet- month period immediately preceding eran’s spouse, or the veteran’s sur- the date on which VA receives either viving spouse. an original pension claim or a new pen- (e) Penalty periods and calculations. sion claim after a period of non-entitle- When a claimant transfers a covered ment. This definition does not include asset during the look-back period, VA any date before October 18, 2018. will assess a penalty period not to ex- (8) Penalty period means a period of ceed 5 years. VA will calculate the non-entitlement, calculated under length of the penalty period by divid- paragraph (e) of this section, due to ing the total covered asset amount by transfer of a covered asset. the monthly penalty rate described in (b) General statement of policy per- paragraph (e)(1) of this section and taining to pension and covered assets. VA rounding the quotient down to the pension is a needs-based benefit and is nearest whole number. The result is not intended to preserve the estates of the number of months for which VA individuals who have the means to sup- will not pay pension. port themselves. Accordingly, a claimant may not create pension entitle- (1) Monthly penalty rate. The monthly ment by transferring covered assets. penalty rate is the maximum annual VA will review the terms and condi- pension rate (MAPR) under 38 U.S.C. tions of asset transfers made during 1521(d)(2) for a veteran in need of aid the 36-month look-back period to de- and attendance with one dependent termine whether the transfer con- that is in effect as of the date of the stituted transfer of a covered asset. pension claim, divided by 12, and However, VA will disregard asset trans- rounded down to the nearest whole dol- fers made before October 18, 2018. In ac- lar. The monthly penalty rate is lo- cordance with § 3.277(a), for any asset cated on VA’s website at transfer, VA may require a claimant to www.benefits.va.gov/pension. provide evidence such as a Federal in- (2) Beginning date of penalty period. come tax return transcript, the terms When a claimant transfers a covered of a gift, trust, or annuity, or the asset or assets during the look-back pe- terms of a recorded deed or other evi- riod, the penalty period begins on the dence of title. first day of the month that follows the (c) Exception for transfers as a result of date of the transfer. If there was more fraud or unfair business practice. An than one transfer, the penalty period asset transferred as the result of fraud, will begin on the first day of the month misrepresentation, or unfair business that follows the date of the last trans- practice related to the sale or mar- fer. keting of financial products or services (3) Entitlement upon ending of penalty for purposes of establishing entitle- period. VA will consider that the claim- ment to VA pension will not be consid- ant, if otherwise qualified, is entitled ered a covered asset. Evidence sup- to benefits effective the last day of the porting this exception may include, but last month of the penalty period, with is not limited to, a complaint contem- a payment date as of the first day of poraneously filed with State, local, or the following month in accordance Federal authorities reporting the inci- with § 3.31. dent. (4) Example of penalty period calcula- (d) Exception for transfers to certain tion. VA receives a pension claim in trusts. VA will not consider as a cov- November 2018. The claimant’s net ered asset an asset that a veteran, a worth is equal to the net worth limit.

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However, the claimant transferred cov- receiving or is to receive increased pen- ered assets totaling $10,000 on August sion (such child is hereinafter in this 20, 2018, and September 23, 2018. There- section referred to as a dependent fore, the total covered asset amount is child), and, in the case of a child apply- $10,000, and the penalty period begins ing for or in receipt of pension in his or on October 1, 2018. Assume the MAPR her own behalf (hereinafter in this sec- for a veteran in need of aid and attend- tion referred to as a surviving child), of ance with one dependent in effect in any person with whom such child is re- November 2018 is $24,000. The monthly siding who is legally responsible for penalty rate is $2,000. The penalty pe- such child’s support. riod is $10,000/$2,000 per month = 5 (b) Obligation to report changes in fac- months. The fifth month of the penalty tors affecting entitlement. Any individual period is February 2019. The claimant who has applied for or receives pension may be entitled to pension effective must promptly notify the Secretary of February 28, 2019, with a payment date any change affecting entitlement in of March 1, 2019, if other entitlement any of the following: requirements are met. (1) Income; (5) Penalty period recalculations. VA (2) Net worth or corpus of estate; will not recalculate a penalty period (3) Marital status; under this section unless— (4) Nursing home patient status; (i) The original calculation is shown (5) School enrollment status of a to be erroneous; or child 18 years of age or older; or (ii) VA receives evidence showing (6) Any other factor that affects enti- that some or all covered assets were re- tlement to benefits under the provi- turned to the claimant before the date sions of this Part. of claim or within 60 days after the (c) Eligibility verification reports. (1) date of VA’s notice to the claimant of For purposes of this section the term VA’s decision concerning the penalty eligibility verification report means a period. If covered assets are returned form prescribed by the Secretary that to the claimant, VA will recalculate or is used to request income, net worth, eliminate the penalty period. For this dependency status, and any other in- exception to apply, VA must receive formation necessary to determine or the evidence not later than 90 days verify entitlement to pension. after the date of VA’s notice to the (2) The Secretary may require an eli- claimant of VA’s decision concerning gibility verification report under the the penalty period. Once covered assets following circumstances: are returned, a claimant may reduce (i) If the Social Security Administra- net worth at the time of transfer under tion has not verified the beneficiary’s the provisions of § 3.274(f). Social Security number and, if the beneficiary is married, his or her spouse’s (Authority: 38 U.S.C. 1522, 1543, 1506(1)) Social Security number; (The Office of Management and Budget has (ii) If there is reason to believe that approved the information collection require- the beneficiary or his or her spouse ment in this section under control numbers may have received income other than 2900–0002, and 2900–0004.) Social Security during the current or [83 FR 47271, Sept. 18, 2018] previous calendar year; or (iii) If the Secretary determines that § 3.277 Eligibility reporting require- an eligibility verification report is nec- ments. essary to preserve program integrity. (a) Evidence of entitlement. As a condi- (3) An individual who applies for or tion of granting or continuing pension, receives pension as defined in § 3.3 of the Department of Veterans Affairs this part shall, as a condition of receipt may require from any person who is an or continued receipt of benefits, fur- applicant for or a recipient of pension nish the Department of Veterans Af- such information, proofs, and evidence fairs an eligibility verification report as is necessary to determine the annual upon request. income and the value of the corpus of (d) If VA requests that a claimant or the estate of such person, and of any beneficiary submit an eligibility spouse or child for whom the person is verification report but he or she fails

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to do so within 60 days of the date of (i) Assistance with two or more the VA request, the Secretary shall ADLs; or suspend the award or disallow the (ii) Supervision because an individual claim. with a physical, mental, develop- (Authority: 38 U.S.C. 1506) mental, or cognitive disorder requires care or assistance on a regular basis to (The Office of Management and Budget has protect the individual from hazards or approved the information collection require- dangers incident to his or her daily en- ments in this section under control numbers 2900–0101 and 2900–0624) vironment. (5) Nursing home means a facility de- [44 FR 45936, Aug. 6, 1979, as amended at 60 fined in § 3.1(z)(1) or (2). If the facility FR 51922, Oct. 4, 1995; 65 FR 16827, Mar. 30, is not located in a State, the facility 2000; 66 FR 56614, Nov. 9, 2001; 83 FR 47272, Sept. 18, 2018] must be licensed in the country in which it is located. § 3.278 Deductible medical expenses. (6) Medical foster home means a pri- (a) Scope. This section identifies med- vately-owned residence, recognized and ical expenses that VA may deduct from approved by VA under 38 CFR 17.73(d), countable income for purposes of three that offers a non-institutional alter- of its needs-based programs: Pension, native to nursing home care for vet- section 306 pension, and parents’ de- erans who are unable to live alone safe- pendency and indemnity compensation ly due to chronic or terminal illness. (DIC). Payments for such medical ex- (7) Care facility other than a nursing penses must be unreimbursed to be de- home means a facility in which a dis- ductible from income. abled individual receives health care or (b) Definitions. For the purposes of custodial care under the provisions of this section— paragraph (d) of this section. A facility (1) Health care provider means: must be licensed if facilities of that (i) An individual licensed by a State type are required to be licensed in the or country to provide health care in State or country in which the facility the State or country in which the indi- is located. A facility that is residential vidual provides the health care. The must be staffed 24 hours per day with term includes, but is not limited to, a care providers. The providers do not physician, physician assistant, psy- have to be licensed health care pro- chologist, chiropractor, registered viders. nurse, licensed vocational nurse, li- (8) Needs A&A or is housebound refers censed practical nurse, and physical or to a disabled individual who meets the occupational therapist; or criteria in § 3.351 for needing regular (ii) A nursing assistant or home aid and attendance (A&A) or being health aide who is supervised by a li- housebound and is a: censed health care provider as defined (i) Veteran; in paragraph (b)(1)(i) of this section. (ii) Surviving spouse; (2) Activities of daily living (ADLs) (iii) Parent (for parents’ DIC pur- mean basic self-care activities and con- poses); or sist of bathing or showering, dressing, (iv) Spouse of a living veteran with a eating, toileting, transferring, and am- service-connected disability rated at bulating within the home or living least 30 percent disabling, who is re- area. Transferring means an individ- ceiving pension. ual’s moving himself or herself from (c) Medical expenses for VA purposes. one position to another, such as get- Generally, medical expenses for VA ting in and out of bed. needs-based benefit purposes are pay- (3) Instrumental activities of daily liv- ments for items or services that are ing (IADLs) mean independent living medically necessary; that improve a activities, such as shopping, food prep- disabled individual’s functioning; or aration, housekeeping, laundering, that prevent, slow, or ease an individ- managing finances, handling medica- ual’s functional decline. Medical ex- tions, using the telephone, and trans- penses may include, but are not limited portation for non-medical purposes. to, the payments specified in para- (4) Custodial care means regular: graphs (c)(1) through (7) of this section.

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(1) Care by a health care provider. Pay- GSA is $0.565 per mile, so the transpor- ments to a health care provider for tation expense is $0.565/mile * 60 miles services performed within the scope of = $33.90. For VA needs-based benefits the provider’s professional capacity are purposes, the unreimbursed amount, medical expenses. Cosmetic procedures here, the difference between $33.90 and that a health care provider performs to $24.90, is a medical expense. improve a congenital or accidental de- (ii) [Reserved] formity or related to treatment for a (5) Health insurance premiums. Pay- diagnosed medical condition are med- ments for health, medical, hospitaliza- ical expenses. tion, and long-term care insurance pre- (2) Medications, medical supplies, med- miums are medical expenses. Pre- ical equipment, and medical food, vita- miums for Medicare Parts A, B, and D mins, and supplements. Payments for and for long-term care insurance are prescription and non-prescription medical expenses. medication procured lawfully under Federal law, as well as payments for (6) Smoking cessation products. Pay- medical supplies or medical equipment, ments for items and services specifi- are medical expenses. Medically nec- cally related to smoking cessation are essary food, vitamins, and supplements medical expenses. as prescribed or directed by a health (7) Institutional forms of care and in- care provider authorized to write pre- home care. As provided in paragraph (d) scriptions are medical expenses. of this section. (3) Adaptive equipment. Payments for (d) Institutional forms of care and in- adaptive devices or service animals, in- home care. This paragraph (d) applies cluding veterinary care, used to assist with respect to claims for a medical ex- a person with an ongoing disability are pense deduction for institutional forms medical expenses. Medical expenses do of care or in-home care received on or not include non-prescription food, after October 18, 2018 that VA has not boarding, grooming, or other routine previously granted. expenses of owning an animal. (1) Hospitals, nursing homes, medical (4) Transportation expenses. Payments foster homes, and inpatient treatment cen- for transportation for medical pur- ters. Payments to hospitals, nursing poses, such as the cost of transpor- homes, medical foster homes, and inpa- tation to and from a health care pro- tient treatment centers (including in- vider’s office by taxi, bus, or other patient treatment centers for drug or form of public transportation are med- alcohol addiction), including the cost ical expenses. The cost of transpor- of meals and lodging charged by such tation for medical purposes by pri- facilities, are medical expenses. vately owned vehicle (POV), including (2) In-home care. Payments for assist- mileage, parking, and tolls, is a med- ance with ADLs and IADLs by an in- ical expense. For transportation in a home attendant are medical expenses POV, VA limits the deductible mileage as long as the attendant provides the rate to the current POV mileage reim- disabled individual with health care or bursement rate specified by the United States General Services Administra- custodial care. Payments must be com- tion (GSA). The current amount can be mensurate with the number of hours obtained from www.gsa.gov or on VA’s that the provider attends to the dis- website at www.benefits.va.gov/pension/. abled person. The attendant must be a Amounts by which transportation ex- health care provider unless— penses set forth in this paragraph (c)(4) (i) The disabled individual needs A&A exceed the amounts of other VA or or is housebound; or non-VA reimbursements for the ex- (ii) A physician, physician assistant, pense are medical expenses. certified nurse practitioner, or clinical (i) Example. In February 2013, a vet- nurse specialist states in writing that, eran drives 60 miles round trip to a VA due to a physical, mental, develop- medical center and back. The veteran mental, or cognitive disorder, the indi- is reimbursed $24.90 from the Veterans vidual requires the health care or cus- Health Administration. The POV mile- todial care that the in-home attendant age reimbursement rate specified by provides.

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(3) Care facilities other than nursing or maintain general health, such as va- homes. (i) Care in a facility may be pro- cations and dance classes, are not med- vided by the facility, contracted by the ical expenses. facility, obtained from a third-party (2) Cosmetic procedures. Except as pro- provider, or provided by family or vided in paragraph (c)(1) of this sec- friends. tion, cosmetic procedures are not med- (ii) Payments for health care pro- ical expenses. vided by a health care provider are (3) Meals and lodging. Except as pro- medical expenses. vided in paragraph (d) of this section, (iii) The provider does not need to be payments for meals and lodging are not a health care provider, and payments for assistance with ADLs and IADLs medical expenses. are medical expenses, if the disabled (4) Assistance with IADLs. Except as individual is receiving health care or provided in paragraph (d) of this sec- custodial care in the facility and— tion, payments for assistance with (A) The disabled individual needs IADLs are not medical expenses. A&A or is housebound; or CROSS REFERENCES: For the rules (B) A physician, physician assistant, governing how medical expenses are certified nurse practitioner, or clinical deducted, see § 3.272(g) (regarding pen- nurse specialist states in writing that, sion) and § 3.262(l) (regarding section due to a physical, mental, develop- 306 pension and parents’ DIC). mental, or cognitive disorder, the individual needs to be in a protected envi- (Authority: 38 U.S.C. 501(a), 1315(f)(3), ronment. 1503(a)(8), 1506(1)) (iv) Payments for meals and lodging (The Office of Management and Budget has (and other facility expenses not di- approved the information collection require- rectly related to health care or custo- ment in this section under control numbers dial care) are medical expenses if: 2900–0002, 2900–0004, and 2900–0161.) (A) The facility provides or contracts [83 FR 47272, Sept. 18, 2018] for health care or custodial care for the disabled individual; or § 3.279 Statutory exclusions from in- (B) A physician, physician assistant, come or assets (net worth or corpus certified nurse practitioner, or clinical of the estate). nurse specialist states in writing that This section sets forth payments that the individual must reside in the facility (or a similar facility) to separately Federal statutes exclude from income contract with a third-party provider to for the purpose of determining entitle- receive health care or custodial care or ment to any VA-administered benefit to receive (paid or unpaid) health care that is based on financial need. Some or custodial care from family or of the exclusions also apply to assets friends. (pension), also known as net worth or (e) Non-medical expenses for VA pur- the corpus of the estate (section 306 poses. Payments for items and services pension and parents as dependents for listed in paragraphs (e)(1) through (4) compensation). VA will exclude from of this section are not medical ex- income or assets any amount des- penses for VA needs-based benefit pur- ignated by statute as not countable as poses. The list is not all-inclusive. income or resources, regardless of (1) Maintenance of general health. Pay- whether or not it is listed in this sec- ments for items or services that benefit tion.

Assets Program or payment Income (corpus of Authority the estate)

(a) COMPENSATION OR RESTITU- TION PAYMENTS:

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Assets Program or payment Income (corpus of Authority the estate)

(1) Relocation payments. Excluded ...... Included ...... 42 U.S.C. 4636. Payments to individuals displaced as a direct result of programs or projects undertaken by a Federal agency or with Federal financial assistance under the Uniform Relocation Assistance and Real Property Acqui- sition Policies Act of 1970, as amended. (2) Crime victim compensa- Excluded ...... Excluded ...... 42 U.S.C. 10602(c). tion. Amounts received as compensation under the Victims of Crime Act of 1984 unless the total amount of assistance received from all federally funded programs is sufficient to fully compensate the claimant for losses suffered as a result of the crime. (3) Restitution to individuals Excluded ...... Excluded ...... 50 U.S.C. App. 1989b–4(f). of Japanese ancestry. Payments made as restitution under Public Law 100–383 to an individual of Japanese ancestry who was interned, evacu- ated, or relocated during the period of December 7, 1941, through June 30, 1946, pursuant to any law, Executive Order, Presidential proclamation, directive, or other official action respecting these individuals. (4) Victims of Nazi persecu- Excluded ...... Excluded ...... 42 U.S.C. 1437a note. tion. Payments made to individuals because of their status as victims of Nazi persecution. (5) Agent Orange settle- Excluded ...... Excluded ...... Sec. 1, Public Law 101–201. ment payments. Pay- ments made from the Agent Orange Settlement Fund or any other fund established pursuant to the settlement in the In Re Agent Orange product liability litigation, M.D.L. No. 381 (E.D.N.Y.). (6) Chapter 18 benefits. Al- Excluded ...... Excluded ...... 38 U.S.C. 1833(c). lowances paid under 38 U.S.C. chapter 18 to a veteran’s child with a birth defect.

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Assets Program or payment Income (corpus of Authority the estate)

(7) Flood mitigation activi- Excluded ...... Excluded ...... 42 U.S.C. 4031. ties. Assistance provided under the National Flood Insurance Act of 1968, as amended. (b) PAYMENTS TO NATIVE AMERI- CANS: (1) Indian Tribal Judgment Excluded ...... Excluded ...... 25 U.S.C. 1407. Fund distributions. All In- dian Tribal Judgment Fund distributions excluded from income and assets while such funds are held in trust. First $2,000 per year of income received by individual Indians under the Indian Tribal Judgment Funds Use or Distribution Act in satisfaction of a judgment of the United States Court of Federal Claims excluded from income. (2) Interests of individual In- Excluded ...... Excluded ...... 25 U.S.C. 1408. dians in trust or restricted lands. Interests of individual Indians in trust or restricted lands excluded from assets. First $2,000 per year of income received by individual Indi- ans that is derived from interests in trust or restricted lands excluded from income. (3) Per Capita Distributions Excluded ...... Excluded ...... 25 U.S.C. 117b, Act. First $2,000 per year 25 U.S.C. 1407. of per capita distributions to members of a tribe from funds held in trust by the Secretary of the Interior for an Indian tribe. All funds excluded from income and assets while funds are held in trust. (4) Submarginal land. In- Excluded ...... Excluded ...... 25 U.S.C. 459e. come derived from certain submarginal land of the United States that is held in trust for certain In- dian tribes. (5) Old Age Assistance Excluded ...... Excluded ...... 25 U.S.C. 2307. Claims Settlement Act. Up to $2,000 per year of per capita distributions under the Old Age Assist- ance Claims Settlement Act.

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Assets Program or payment Income (corpus of Authority the estate)

(6) Alaska Native Claims Excluded ...... Excluded ...... 43 U.S.C. 1626(c). Settlement Act. Any of the following, if received from a Native Corpora- tion, under the Alaska Native Claims Settlement Act: (i) Cash, including cash dividends on stocks and bonds, up to a maximum of $2,000 per year; (ii) Stock, including stock issued as a dividend or distribution; (iii) Bonds that are subject to the protection under 43 U.S.C. 1606(h) until voluntarily and expressly sold or pledged by the shareholder after the date of distribution; (iv) A partnership interest; (v) Land or an interest in land, including land received as a dividend or distribution on stock; (vi) An interest in a settlement trust. (7) Maine Indian Claims Excluded ...... Excluded ...... 25 U.S.C. 1728. Settlement Act. Payments received under the Maine Indian Claims Settlement Act of 1980. (8) Cobell Settlement. Pay- Excluded for one Excluded for one Sec. 101, Public Law 111–291. ments received under year. year. Cobell v. Salazar, Civil Action No. 96–1285 (TFH) (D.D.C.). (c) WORK–RELATED PAYMENTS: (1) Workforce investment. Excluded ...... Included ...... 29 U.S.C. 3241(a)(2). Allowances, earnings, and payments to individuals participating in programs under the Work- force Investment Act of 1998.

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Assets Program or payment Income (corpus of Authority the estate)

(2) AmeriCorps participants. Excluded ...... Included ...... 42 U.S.C. 12637(d). Allowances, earnings, and payments to AmeriCorps participants under the National and Community Service Act of 1990. (3) Volunteer work. Com- Excluded ...... Excluded ...... 42 U.S.C. 5044(f). pensation or reimbursement to volunteers involved in programs administered by the Cor- poration for National and Community Service, unless the payments are equal to or greater than the minimum wage. The minimum wage is either that under the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) or that under the law of the State where the volunteers are serving, whichever is greater. (d) MISCELLANEOUS PAYMENTS: (1) Income tax refunds. In- Excluded ...... Excluded for one 26 U.S.C. 6409. come tax refunds, includ- year. ing the Federal Earned Income Credit and advance payments with respect to a refundable credit. (2) Food stamps. Value of Excluded ...... Excluded ...... 7 U.S.C. 2017(b). the allotment provided to an eligible household under the Food Stamp Program. (3) Food for children. Value Excluded ...... Excluded ...... 42 U.S.C. 1780(b). of free or reduced-price for food under the Child Nutrition Act of 1966. (4) Child care. Value of any Excluded ...... Included ...... 42 U.S.C. 9858q. child care provided or ar- ranged (or any amount received as payment for such care or reimbursement for costs incurred for such care) under the Child Care and Develop- ment Block Grant Act of 1990. (5) Services for housing re- Excluded ...... Included ...... 42 U.S.C. 8011(j)(2). cipients. Value of services, but not wages, provided to a resident of an eligible housing project under a congregate services program under the Cranston-Gonzalez Na- tional Affordable Housing Act.

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Assets Program or payment Income (corpus of Authority the estate)

(6) Home energy assist- Excluded ...... Excluded ...... 42 U.S.C. 8624(f). ance. The amount of any home energy assistance payments or allowances provided directly to, or indirectly for the benefit of, an eligible household under the Low-Income Home Energy Assistance Act of 1981. (7) Programs for older Excluded ...... Included ...... 42 U.S.C. 3020a(b). Americans. Payments, other than wages or salaries, received from programs funded under the Older Americans Act of 1965, 42 U.S.C. 3001. (8) Student financial aid. Excluded ...... Excluded ...... 20 U.S.C. 1087uu, 2414(a). Amounts of student financial assistance received under Title IV of the Higher Education Act of 1965, including Federal work-study programs, Bu- reau of Indian Affairs student assistance programs, or vocational training under the Carl D. Perkins Vocational and Technical Education Act of 1998. (9) Retired Serviceman’s Excluded ...... Included ...... 10 U.S.C. 1441. Family Protection Plan annuities. Annuities received under subchapter I of the Retired Service- man’s Family Protection Plan.

(Authority: 38 U.S.C. 501(a)) (b) The provisions of paragraph (a) of [83 FR 47274, Sept. 18, 2018] this section do not prohibit service connection if: RATINGS AND EVALUATIONS; BASIC (1) The disability or death resulted ENTITLEMENT CONSIDERATIONS from a disease or injury that is otherwise shown to have been incurred or § 3.300 Claims based on the effects of aggravated during service. For pur- tobacco products. poses of this section, ‘‘otherwise (a) For claims received by VA after shown’’ means that the disability or June 9, 1998, a disability or death will death can be service-connected on not be considered service-connected on some basis other than the veteran’s use the basis that it resulted from injury of tobacco products during service, or or disease attributable to the veteran’s that the disability became manifest or use of tobacco products during service. death occurred during service; or For the purpose of this section, the (2) The disability or death resulted term ‘‘tobacco products’’ means cigars, from a disease or injury that appeared cigarettes, smokeless tobacco, pipe to- to the required degree of disability bacco, and roll-your-own tobacco.

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within any applicable presumptive pe- in service of manifestations of venereal riod under §§ 3.307, 3.309, 3.313, or 3.316; disease will usually be held due to nat- or ural progress unless the facts of record (3) Secondary service connection is indicate the increase in manifestations established for ischemic heart disease was precipitated by trauma or by the or other cardiovascular disease under conditions of the veteran’s service, in § 3.310(b). which event service connection may be (c) For claims for secondary service established by aggravation. Medical connection received by VA after June principles pertaining to the incubation 9, 1998, a disability that is proximately period and its relation to the course of due to or the result of an injury or dis- the disease; i.e., initial or acute mani- ease previously service-connected on festation, or period and course of sec- the basis that it is attributable to the ondary and late residuals manifested, veteran’s use of tobacco products dur- will be considered when time of incur- ing service will not be service-con- rence of venereal disease prior to or nected under § 3.310(a). after entry into service is at issue. In (Authority: 38 U.S.C. 501(a), 1103, 1103 note) the issue of service connection, wheth- [66 FR 18198, Apr. 6, 2001] er the veteran complied with service regulations and directives for reporting § 3.301 Line of duty and misconduct. the disease and undergoing treatment (a) Line of duty. Direct service con- is immaterial after November 14, 1972, nection may be granted only when a and the service department character- disability or cause of death was in- ization of acquisition of the disease as curred or aggravated in line of duty, willful misconduct or as not in line of and not the result of the veteran’s own duty will not govern. willful misconduct or, for claims filed (2) The simple drinking of alcoholic after October 31, 1990, the result of his beverage is not of itself willful mis- or her abuse of alcohol or drugs. conduct. The deliberate drinking of a known poisonous substance or under (Authority: 38 U.S.C. 105) conditions which would raise a pre- (b) Willful misconduct. Disability pen- sumption to that effect will be consid- sion is not payable for any condition ered willful misconduct. If, in the due to the veteran’s own willful mis- drinking of a beverage to enjoy its in- conduct. toxicating effects, intoxication results proximately and immediately in dis- (Authority: 38 U.S.C. 1521) ability or death, the disability or death will be considered the result of the per- (c) Specific applications; willful mis- son’s willful misconduct. Organic dis- conduct. For the purpose of deter- eases and disabilities which are a sec- mining entitlement to service-con- ondary result of the chronic use of al- nected and nonservice-connected bene- cohol as a beverage, whether out of fits the definitions in §§ 3.1 (m) and (n) of this part apply except as modified compulsion or otherwise, will not be within paragraphs (c)(1) through (c)(3) considered of willful misconduct ori- of this section. The provisions of para- gin. (See §§ 21.1043, 21.5041, and 21.7051 of graphs (c)(2) and (c)(3) of this section this title regarding the disabling ef- are subject to the provisions of § 3.302 fects of chronic alcoholism for the pur- of this part where applicable. pose of extending delimiting periods under education or rehabilitation pro- (Authority: 38 U.S.C. 501) grams.)

(1) Venereal disease. The residuals of (Authority: 38 U.S.C. 501) venereal disease are not to be considered the result of willful misconduct. (3) Drug usage. The isolated and infre- Consideration of service connection for quent use of drugs by itself will not be residuals of venereal disease as having considered willful misconduct; how- been incurred in service requires that ever, the progressive and frequent use the initial infection must have oc- of drugs to the point of addiction will curred during active service. Increase be considered willful misconduct.

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Where drugs are used to enjoy or expe- (2) A person of unsound mind is in- rience their effects and the effects re- capable of forming an intent (mens rea, sult proximately and immediately in or guilty mind, which is an essential disability or death, such disability or element of crime or willful mis- death will be considered the result of conduct). the person’s willful misconduct. Or- (3) It is a constant requirement for ganic diseases and disabilities which favorable action that the precipitating are a secondary result of the chronic mental unsoundness be service con- use of drugs and infections coinciding nected. with the injection of drugs will not be (b) Evidence of mental condition. (1) considered of willful misconduct ori- Whether a person, at the time of sui- gin. (See paragraph (d) of this section cide, was so unsound mentally that he regarding service connection where dis- or she did not realize the consequence ability or death is a result of abuse of of such an act, or was unable to resist drugs.) Where drugs are used for thera- such impulse is a question to be deter- peutic purposes or where use of drugs mined in each individual case, based on or addiction thereto, results from a all available lay and medical evidence service-connected disability, it will not pertaining to his or her mental condi- be considered of misconduct origin. tion at the time of suicide. (2) The act of suicide or a bona fide (Authority: 38 U.S.C. 105, 1110, 1121, 1131, 1301, attempt is considered to be evidence of and 1521(a)) mental unsoundness. Therefore, where no reasonable adequate motive for sui- (d) Line of duty; abuse of alcohol or cide is shown by the evidence, the act drugs. An injury or disease incurred will be considered to have resulted during active military, naval, or air from mental unsoundness. service shall not be deemed to have (3) A reasonable adequate motive for been incurred in line of duty if such in- suicide may be established by affirma- jury or disease was a result of the tive evidence showing circumstances abuse of alcohol or drugs by the person which could lead a rational person to on whose service benefits are claimed. self-destruction. For the purpose of this paragraph, al- (c) Evaluation of evidence. (1) Affirma- cohol abuse means the use of alcoholic tive evidence is necessary to justify re- beverages over time, or such excessive versal of service department findings of use at any one time, sufficient to cause mental unsoundness where Department disability to or death of the user; drug of Veterans Affairs criteria do not oth- abuse means the use of illegal drugs erwise warrant contrary findings. (including prescription drugs that are (2) In all instances any reasonable illegally or illicitly obtained), the in- doubt should be resolved favorably to tentional use of prescription or non- support a finding of service connection prescription drugs for a purpose other (see § 3.102). than the medically intended use, or the use of substances other than alcohol to CROSS REFERENCE: Cause of death. See enjoy their intoxicating effects. § 3.312. [28 FR 183, Jan. 8, 1963, as amended at 54 FR (Authority: 38 U.S.C. 105(a)) 31951, Aug. 3, 1989; 55 FR 13530, Apr. 11, 1990] CROSS REFERENCES: In line of duty. See § 3.1(m). Willful misconduct. See § 3.1(n). Ex- RATINGS AND EVALUATIONS; SERVICE tended period of eligibility. See §§ 21.1043 and CONNECTION 21.7051. Periods of entitlement. See § 21.5041. [26 FR 1579, Feb. 24, 1961, as amended at 37 § 3.303 Principles relating to service FR 24662, Nov. 18, 1972; 54 FR 31951, Aug. 3, connection. 1989; 55 FR 13530, Apr. 11, 1990; 60 FR 27408, (a) General. Service connection con- May 24, 1995] notes many factors but basically it means that the facts, shown by evi- § 3.302 Service connection for mental dence, establish that a particular in- unsoundness in suicide. jury or disease resulting in disability (a) General. (1) In order for suicide to was incurred coincident with service in constitute willful misconduct, the act the Armed Forces, or if preexisting of self-destruction must be intentional. such service, was aggravated therein.

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This may be accomplished by affirma- then a showing of continuity after dis- tively showing inception or aggrava- charge is required to support the claim. tion during service or through the ap- (c) Preservice disabilities noted in serv- plication of statutory presumptions. ice. There are medical principles so Each disabling condition shown by a universally recognized as to constitute veteran’s service records, or for which fact (clear and unmistakable proof), he seeks a service connection must be and when in accordance with these considered on the basis of the places, principles existence of a disability types and circumstances of his service prior to service is established, no addi- as shown by service records, the offi- tional or confirmatory evidence is nec- cial history of each organization in essary. Consequently with notation or which he served, his medical records discovery during service of such resid- and all pertinent medical and lay evi- ual conditions (scars; fibrosis of the dence. Determinations as to service lungs; atrophies following disease of connection will be based on review of the central or peripheral nervous sys- the entire evidence of record, with due tem; healed fractures; absent, displaced consideration to the policy of the De- or resected parts of organs; super- partment of Veterans Affairs to admin- numerary parts; congenital malforma- ister the law under a broad and liberal tions or hemorrhoidal tags or tabs, interpretation consistent with the etc.) with no evidence of the pertinent facts in each individual case. antecedent active disease or injury during service the conclusion must be (b) Chronicity and continuity. With that they preexisted service. Similarly, chronic disease shown as such in serv- manifestation of lesions or symptoms ice (or within the presumptive period of chronic disease from date of enlist- under § 3.307) so as to permit a finding ment, or so close thereto that the dis- of service connection, subsequent ease could not have originated in so manifestations of the same chronic dis- short a period will establish preservice ease at any later date, however remote, existence thereof. Conditions of an in- are service connected, unless clearly fectious nature are to be considered attributable to intercurrent causes. with regard to the circumstances of the This rule does not mean that any man- infection and if manifested in less than ifestation of joint pain, any abnor- the respective incubation periods after mality of heart action or heart sounds, reporting for duty, they will be held to any urinary findings of casts, or any have preexisted service. In the field of cough, in service will permit service mental disorders, personality disorders connection of arthritis, disease of the which are characterized by develop- heart, nephritis, or pulmonary disease, mental defects or pathological trends first shown as a clearcut clinical enti- in the personality structure manifested ty, at some later date. For the showing by a lifelong pattern of action or be- of chronic disease in service there is re- havior, chronic psychoneurosis of long quired a combination of manifestations duration or other psychiatric symp- sufficient to identify the disease enti- tomatology shown to have existed ty, and sufficient observation to estab- prior to service with the same mani- lish chronicity at the time, as distin- festations during service, which were guished from merely isolated findings the basis of the service diagnosis, will or a diagnosis including the word be accepted as showing preservice ori- ‘‘Chronic.’’ When the disease identity gin. Congenital or developmental de- is established (leprosy, tuberculosis, fects, refractive error of the eye, per- multiple sclerosis, etc.), there is no re- sonality disorders and mental defi- quirement of evidentiary showing of ciency as such are not diseases or inju- continuity. Continuity of symptoma- ries within the meaning of applicable tology is required only where the con- legislation. dition noted during service (or in the (d) Postservice initial diagnosis of dis- presumptive period) is not, in fact, ease. Service connection may be grant- shown to be chronic or where the diag- ed for any disease diagnosed after dis- nosis of chronicity may be legitimately charge, when all the evidence, includ- questioned. When the fact of chronicity ing that pertinent to service, estab- in service is not adequately supported, lishes that the disease was incurred in

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service. Presumptive periods are not (2) History conforming to accepted intended to limit service connection to medical principles should be given due diseases so diagnosed when the evi- consideration, in conjunction with dence warrants direct service connec- basic clinical data, and be accorded tion. The presumptive provisions of the probative value consistent with accept- statute and Department of Veterans ed medical and evidentiary principles Affairs regulations implementing them in relation to value consistent with ac- are intended as liberalizations applica- cepted medical evidence relating to in- ble when the evidence would not war- currence, symptoms and course of the rant service connection without their injury or disease, including official and aid. other records made prior to, during or subsequent to service, together with all [26 FR 1579, Feb. 24, 1961] other lay and medical evidence concerning the inception, development and § 3.304 Direct service connection; wartime and peacetime. manifestations of the particular condition will be taken into full account. (a) General. The basic considerations (3) Signed statements of veterans re- relating to service connection are stat- lating to the origin, or incurrence of ed in § 3.303. The criteria in this section any disease or injury made in service if apply only to disabilities which may against his or her own interest is of no have resulted from service in a period force and effect if other data do not es- of war or service rendered on or after tablish the fact. Other evidence will be January 1, 1947. considered as though such statement (b) Presumption of soundness. The vet- were not of record. eran will be considered to have been in sound condition when examined, ac- (Authority: 10 U.S.C. 1219) cepted and enrolled for service, except (c) Development. The development of as to defects, infirmities, or disorders evidence in connection with claims for noted at entrance into service, or service connection will be accom- where clear and unmistakable (obvious plished when deemed necessary but it or manifest) evidence demonstrates should not be undertaken when evi- that an injury or disease existed prior dence present is sufficient for this de- thereto and was not aggravated by termination. In initially rating dis- such service. Only such conditions as ability of record at the time of dis- are recorded in examination reports charge, the records of the service de- are to be considered as noted. partment, including the reports of examination at enlistment and the clin- (Authority: 38 U.S.C. 1111) ical records during service, will ordi- (1) History of preservice existence of narily suffice. Rating of combat inju- conditions recorded at the time of ex- ries or other conditions which obvi- amination does not constitute a nota- ously had their inception in service tion of such conditions but will be con- may be accomplished pending receipt sidered together with all other mate- of copy of the examination at enlist- rial evidence in determinations as to ment and all other service records. inception. Determinations should not (d) Combat. Satisfactory lay or other be based on medical judgment alone as evidence that an injury or disease was distinguished from accepted medical incurred or aggravated in combat will principles, or on history alone without be accepted as sufficient proof of serv- regard to clinical factors pertinent to ice connection if the evidence is con- the basic character, origin and develop- sistent with the circumstances, condi- ment of such injury or disease. They tions or hardships of such service even should be based on thorough analysis though there is no official record of of the evidentiary showing and careful such incurrence or aggravation. correlation of all material facts, with due regard to accepted medical prin- (Authority: 38 U.S.C. 1154(b)) ciples pertaining to the history, mani- (e) Prisoners of war. Where disability festations, clinical course, and char- compensation is claimed by a former acter of the particular injury or disease prisoner of war, omission of history or or residuals thereof. findings from clinical records made

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upon repatriation is not determinative psychiatrist or psychologist with of service connection, particularly if whom VA has contracted, confirms evidence of comrades in support of the that the claimed stressor is adequate incurrence of the disability during con- to support a diagnosis of posttraumatic finement is available. Special atten- stress disorder and that the veteran’s tion will be given to any disability first symptoms are related to the claimed reported after discharge, especially if stressor, in the absence of clear and poorly defined and not obviously of convincing evidence to the contrary, intercurrent origin. The circumstances and provided the claimed stressor is attendant upon the individual vet- consistent with the places, types, and eran’s confinement and the duration circumstances of the veteran’s service, thereof will be associated with perti- the veteran’s lay testimony alone may nent medical principles in determining establish the occurrence of the claimed whether disability manifested subse- in-service stressor. For purposes of this quent to service is etiologically related paragraph, ‘‘fear of hostile military or to the prisoner of war experience. terrorist activity’’ means that a vet- (f) Posttraumatic stress disorder. Serv- eran experienced, witnessed, or was ice connection for posttraumatic stress confronted with an event or cir- disorder requires medical evidence di- cumstance that involved actual or agnosing the condition in accordance threatened death or serious injury, or a with § 4.125(a) of this chapter; a link, threat to the physical integrity of the established by medical evidence, be- veteran or others, such as from an ac- tween current symptoms and an in- tual or potential improvised explosive service stressor; and credible sup- device; vehicle-imbedded explosive de- porting evidence that the claimed in- vice; incoming artillery, rocket, or service stressor occurred. The fol- mortar fire; grenade; small arms fire, lowing provisions apply to claims for including suspected sniper fire; or at- service connection of posttraumatic tack upon friendly military aircraft, stress disorder diagnosed during serv- and the veteran’s response to the event ice or based on the specified type of or circumstance involved a psycho- claimed stressor: logical or psycho-physiological state of (1) If the evidence establishes a diag- fear, helplessness, or horror. nosis of posttraumatic stress disorder (4) If the evidence establishes that during service and the claimed stressor the veteran was a prisoner-of-war is related to that service, in the ab- under the provisions of § 3.1(y) of this sence of clear and convincing evidence part and the claimed stressor is related to the contrary, and provided that the to that prisoner-of-war experience, in claimed stressor is consistent with the the absence of clear and convincing circumstances, conditions, or hardships evidence to the contrary, and provided of the veteran’s service, the veteran’s that the claimed stressor is consistent lay testimony alone may establish the with the circumstances, conditions, or occurrence of the claimed in-service hardships of the veteran’s service, the stressor. veteran’s lay testimony alone may es- (2) If the evidence establishes that tablish the occurrence of the claimed the veteran engaged in combat with in-service stressor. the enemy and the claimed stressor is (5) If a posttraumatic stress disorder related to that combat, in the absence claim is based on in-service personal of clear and convincing evidence to the assault, evidence from sources other contrary, and provided that the than the veteran’s service records may claimed stressor is consistent with the corroborate the veteran’s account of circumstances, conditions, or hardships the stressor incident. Examples of such of the veteran’s service, the veteran’s evidence include, but are not limited lay testimony alone may establish the to: records from law enforcement au- occurrence of the claimed in-service thorities, rape crisis centers, mental stressor. health counseling centers, hospitals, or (3) If a stressor claimed by a veteran physicians; pregnancy tests or tests for is related to the veteran’s fear of hos- sexually transmitted diseases; and tile military or terrorist activity and a statements from family members, VA psychiatrist or psychologist, or a roommates, fellow service members, or

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clergy. Evidence of behavior changes disease preexisted service. Any evi- following the claimed assault is one dence acceptable as competent to indi- type of relevant evidence that may be cate the time of existence or inception found in these sources. Examples of be- of the condition may be considered. De- havior changes that may constitute terminations based on medical judg- credible evidence of the stressor in- ment will take cognizance of the time clude, but are not limited to: a request of inception or manifestation of disease for a transfer to another military duty or injury following entrance into serv- assignment; deterioration in work per- ice, as shown by proper service authori- formance; substance abuse; episodes of ties in service records, entries or re- depression, panic attacks, or anxiety ports. Such records will be accorded without an identifiable cause; or unex- reasonable weight in consideration of plained economic or social behavior other evidence and sound medical rea- changes. VA will not deny a soning. Opinions may be solicited from posttraumatic stress disorder claim Department of Veterans Affairs med- that is based on in-service personal as- ical authorities when considered nec- sault without first advising the claim- essary. ant that evidence from sources other than the veteran’s service records or (c) Campaigns and expeditions. In con- evidence of behavior changes may considering claims of veterans who en- stitute credible supporting evidence of gaged in combat during campaigns or the stressor and allowing him or her expeditions satisfactory lay or other the opportunity to furnish this type of evidence of incurrence or aggravation evidence or advise VA of potential in such combat of an injury or disease, sources of such evidence. VA may sub- if consistent with the circumstances, mit any evidence that it receives to an conditions or hardships of such service appropriate medical or mental health will be accepted as sufficient proof of professional for an opinion as to wheth- service connection, even when there is er it indicates that a personal assault no official record of incurrence or ag- occurred. gravation. Service connection for such injury or disease may be rebutted by (Authority: 38 U.S.C. 501(a), 1154) clear and convincing evidence to the [26 FR 1580, Feb. 24, 1961, as amended at 31 contrary. FR 4680, Mar. 19, 1966; 39 FR 34530, Sept. 26, 1974; 58 FR 29110, May 19, 1993; 64 FR 32808, [26 FR 1580, Feb. 24, 1961, as amended at 28 June 18, 1999; 67 FR 10332, Mar. 7, 2002; 70 FR FR 3088, Mar. 29, 1963; 39 FR 34530, Sept. 26, 23029, May 4, 2005; 73 FR 64210, Oct. 29, 2008; 1974] 75 FR 39852, July 13, 2010] § 3.306 Aggravation of preservice dis- § 3.305 Direct service connection; ability. peacetime service before January 1, (a) General. A preexisting injury or 1947. disease will be considered to have been (a) General. The basic considerations aggravated by active military, naval, relating to service connection are stat- or air service, where there is an in- ed in § 3.303. The criteria in this section crease in disability during such service, apply only to disabilities which may unless there is a specific finding that have resulted from service other than the increase in disability is due to the in a period of war before January 1, natural progress of the disease. 1947. (b) Presumption of soundness. A peace- (Authority: 38 U.S.C. 1153) time veteran who has had active, continuous service of 6 months or more (b) Wartime service; peacetime service will be considered to have been in after December 31, 1946. Clear and unsound condition when examined, ac- mistakable evidence (obvious or mani- cepted and enrolled for service, except fest) is required to rebut the presump- as to defects, infirmities or disorders tion of aggravation where the noted at the time thereof, or where evi- preservice disability underwent an in- dence or medical judgment, as distin- crease in severity during service. This guished from medical fact and prin- includes medical facts and principles ciples, establishes that an injury or which may be considered to determine

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whether the increase is due to the nat- § 3.307 Presumptive service connec- ural progress of the condition. Aggra- tion for chronic, tropical, or pris- vation may not be conceded where the oner-of-war related disease, disease disability underwent no increase in se- associated with exposure to certain herbicide agents, or disease associ- verity during service on the basis of all ated with exposure to contaminants the evidence of record pertaining to the in the water supply at Camp manifestations of the disability prior Lejeune; wartime and service on or to, during and subsequent to service. after January 1, 1947. (1) The usual effects of medical and (a) General. A chronic, tropical, or surgical treatment in service, having prisoner of war related disease, a dis- the effect of ameliorating disease or ease associated with exposure to cer- other conditions incurred before enlist- tain herbicide agents, or a disease asso- ment, including postoperative scars, ciated with exposure to contaminants absent or poorly functioning parts or in the water supply at Camp Lejeune organs, will not be considered service listed in § 3.309 will be considered to connected unless the disease or injury have been incurred in or aggravated by is otherwise aggravated by service. service under the circumstances outlined in this section even though there (2) Due regard will be given the is no evidence of such disease during places, types, and circumstances of the period of service. No condition service and particular consideration other than one listed in § 3.309(a) will will be accorded combat duty and other be considered chronic. hardships of service. The development (1) Service. The veteran must have of symptomatic manifestations of a served 90 days or more during a war pe- preexisting disease or injury during or riod or after December 31, 1946. The re- proximately following action with the quirement of 90 days’ service means ac- enemy or following a status as a pris- tive, continuous service within or ex- oner of war will establish aggravation tending into or beyond a war period, or of a disability. which began before and extended beyond December 31, 1946, or began after (Authority: 38 U.S.C. 1154) that date. Any period of service is sufficient for the purpose of establishing (c) Peacetime service prior to December the presumptive service connection of 7, 1941. The specific finding require- a specified disease under the conditions ment that an increase in disability is listed in § 3.309(c) and (e). Any period of due to the natural progress of the con- service is sufficient for the purpose of dition will be met when the available establishing the presumptive service evidence of a nature generally accept- connection of a specified disease under able as competent shows that the in- the conditions listed in § 3.309(f), as crease in severity of a disease or injury long as the period of service also satis- or acceleration in progress was that fies the requirements to establish a normally to be expected by reason of presumption of exposure to contami- the inherent character of the condi- nants in the water supply at Camp tion, aside from any extraneous or con- Lejeune under paragraph (a)(7)(iii) of tributing cause or influence peculiar to this section. military service. Consideration will be (2) Separation from service. For the given to the circumstances, conditions, purpose of paragraph (a)(3) and (4) of this section the date of separation from and hardships of service. wartime service will be the date of dis- [26 FR 1580, Feb. 24, 1961, as amended at 57 charge or release during a war period, FR 59296, Dec. 15, 1992] or if service continued after the war, the end of the war period. In claims based on service on or after January 1, 1947, the date of separation will be the date of discharge or release from the period of service on which the claim is based. (3) Chronic disease. The disease must have become manifest to a degree of 10

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percent or more within 1 year (for Han- period beginning on January 9, 1962, sen’s disease (leprosy) and tuberculosis, and ending on May 7, 1975, shall be pre- within 3 years; multiple sclerosis, with- sumed to have been exposed during in 7 years) from the date of separation such service to an herbicide agent, un- from service as specified in paragraph less there is affirmative evidence to es- (a)(2) of this section. tablish that the veteran was not ex- (4) Tropical disease. The disease must posed to any such agent during that have become manifest to a degree of 10 service. The last date on which such a percent or more within 1 year from veteran shall be presumed to have been date of separation from service as spec- exposed to an herbicide agent shall be ified in paragraph (a)(2) of this section, the last date on which he or she served or at a time when standard accepted in the Republic of Vietnam during the treatises indicate that the incubation period beginning on January 9, 1962, period commenced during such service. and ending on May 7, 1975. ‘‘Service in The resultant disorders or diseases the Republic of Vietnam’’ includes originating because of therapy admin- service in the waters offshore and serv- istered in connection with a tropical ice in other locations if the conditions disease or as a preventative may also of service involved duty or visitation in be service connected. the Republic of Vietnam. (iv) A veteran who, during active (Authority: 38 U.S.C. 1112) military, naval, or air service, served (5) Diseases specific as to former pris- between April 1, 1968, and August 31, oners of war. The diseases listed in 1971, in a unit that, as determined by § 3.309(c) shall have become manifest to the Department of Defense, operated in a degree of 10 percent or more at any or near the Korean DMZ in an area in time after discharge or release from ac- which herbicides are known to have tive service. been applied during that period, shall be presumed to have been exposed dur- (Authority: 38 U.S.C. 1112) ing such service to an herbicide agent, unless there is affirmative evidence to (6) Diseases associated with exposure to establish that the veteran was not ex- certain herbicide agents. (i) For the pur- posed to any such agent during that poses of this section, the term ‘‘herbi- service. See also 38 CFR 3.814(c)(2). cide agent’’ means a chemical in an (v) An individual who performed serv- herbicide used in support of the United ice in the Air Force or Air Force Re- States and allied military operations serve under circumstances in which the in the Republic of Vietnam during the individual concerned regularly and re- period beginning on January 9, 1962, peatedly operated, maintained, or and ending on May 7, 1975, specifically: served onboard C–123 aircraft known to 2,4–D; 2,4,5–T and its contaminant have been used to spray an herbicide TCDD; cacodylic acid; and picloram. agent during the Vietnam era shall be presumed to have been exposed during (Authority: 38 U.S.C. 1116(a)(4)) such service to an herbicide agent. For (ii) The diseases listed at § 3.309(e) purposes of this paragraph, ‘‘regularly shall have become manifest to a degree and repeatedly operated, maintained, of 10 percent or more at any time after or served onboard C–123 aircraft’’ service, except that chloracne or other means that the individual was assigned acneform disease consistent with to an Air Force or Air Force Reserve chloracne, porphyria cutanea tarda, squadron when the squadron was per- and early-onset peripheral neuropathy manently assigned one of the affected shall have become manifest to a degree aircraft and the individual had an Air of 10 percent or more within a year Force Specialty Code indicating duties after the last date on which the vet- as a flight, ground maintenance, or eran was exposed to an herbicide agent medical crew member on such aircraft. during active military, naval, or air Such exposure constitutes an injury service. under 38 U.S.C. 101(24)(B) and (C). If an (iii) A veteran who, during active individual described in this paragraph military, naval, or air service, served develops a disease listed in 38 CFR in the Republic of Vietnam during the 3.309(e) as specified in paragraph

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(a)(6)(ii) of this section, it will be pre- (a)(7)(iii) of this section develops a dis- sumed that the individual concerned ease listed in § 3.309(f), VA will presume became disabled during that service for that the individual concerned became purposes of establishing that the indi- disabled during that service for pur- vidual served in the active military, poses of establishing that the indi- naval, or air service. vidual served in the active military, (7) Diseases associated with exposure to naval, or air service. contaminants in the water supply at Camp Lejeune. (i) For the purposes of (Authority: 38 U.S.C. 501(a), 1116(a)(3), and this section, contaminants in the water 1821) supply means the volatile organic com- (b) Evidentiary basis. The factual basis pounds trichloroethylene (TCE), may be established by medical evi- perchloroethylene (PCE), benzene and dence, competent lay evidence or both. vinyl chloride, that were in the on-base Medical evidence should set forth the water-supply systems located at United physical findings and symptomatology States Marine Corps Base Camp elicited by examination within the ap- Lejeune, during the period beginning plicable period. Lay evidence should on August 1, 1953, and ending on De- describe the material and relevant cember 31, 1987. facts as to the veteran’s disability ob- (ii) The diseases listed in § 3.309(f) served within such period, not merely shall have become manifest to a degree conclusions based upon opinion. The of 10 percent or more at any time after chronicity and continuity factors out- service. lined in § 3.303(b) will be considered. (iii) A veteran, or former reservist or The diseases listed in § 3.309(a) will be member of the National Guard, who accepted as chronic, even though diag- had no less than 30 days (consecutive nosed as acute because of insidious in- or nonconsecutive) of service at Camp ception and chronic development, ex- Lejeune during the period beginning on cept: (1) Where they result from inter- August 1, 1953, and ending on December current causes, for example, cerebral 31, 1987, shall be presumed to have been hemorrhage due to injury, or active ne- exposed during such service to the con- phritis or acute endocarditis due to taminants in the water supply, unless intercurrent infection (with or without there is affirmative evidence to estab- identification of the pathogenic micro- lish that the individual was not ex- organism); or (2) where a disease is the posed to contaminants in the water result of drug ingestion or a complica- supply during that service. The last tion of some other condition not re- date on which such a veteran, or lated to service. Thus, leukemia will be former reservist or member of the Na- accepted as a chronic disease whether tional Guard, shall be presumed to diagnosed as acute or chronic. Unless have been exposed to contaminants in the clinical picture is clear otherwise, the water supply shall be the last date consideration will be given as to on which he or she served at Camp whether an acute condition is an exac- Lejeune during the period beginning on erbation of a chronic disease. August 1, 1953, and ending on December 31, 1987. For purposes of this section, (Authority: 38 U.S.C. 1112) service at Camp Lejeune means any serv- (c) Prohibition of certain presumptions. ice within the borders of the entirety No presumptions may be invoked on of the United States Marine Corps Base the basis of advancement of the disease Camp Lejeune and Marine Corps Air when first definitely diagnosed for the Station New River, North Carolina, purpose of showing its existence to a during the period beginning on August degree of 10 percent within the applica- 1, 1953, and ending on December 31, ble period. This will not be interpreted 1987, as established by military orders as requiring that the disease be diag- or other official service department nosed in the presumptive period, but records. only that there be then shown by ac- (iv) Exposure described in paragraph ceptable medical or lay evidence char- (a)(7)(iii) of this section is an injury acteristic manifestations of the disease under 38 U.S.C. 101(24)(B) and (C). If an to the required degree, followed with- individual described in paragraph out unreasonable time lapse by definite

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diagnosis. Symptomatology shown in to the natural progress of the pre- the prescribed period may have no par- existing condition. ticular significance when first ob- (Authority: 38 U.S.C. 101(24), 501(a), 1116(a)(3), served, but in the light of subsequent and 1821) developments it may gain considerable [26 FR 1581, Feb. 24, 1961, as amended at 35 significance. Cases in which a chronic FR 18281, Dec. 1, 1970; 39 FR 34530, Sept. 26, condition is shown to exist within a 1974; 43 FR 45347, Oct. 2, 1978; 47 FR 11655, short time following the applicable Mar. 18, 1982; 58 FR 29109, May 19, 1993; 59 FR presumptive period, but without evi- 5106, Feb. 3, 1994; 59 FR 29724, June 9, 1994; 61 dence of manifestations within the pe- FR 57588, Nov. 7, 1996; 62 FR 35422, July 1, 1997; 67 FR 67793, Nov. 7, 2002; 68 FR 34541, riod, should be developed to determine June 10, 2003; 76 FR 4248, Jan. 25, 2011; 78 FR whether there was symptomatology 54766, Sept. 6, 2013; 80 FR 35248, June 19, 2015; which in retrospect may be identified 82 FR 4184, Jan. 13, 2017] and evaluated as manifestation of the chronic disease to the required 10-per- § 3.308 Presumptive service connec- cent degree. tion; peacetime service before Janu- ary 1, 1947. (d) Rebuttal of service incurrence or aggravation. (1) Evidence which may be (a) Chronic disease. There is no provi- considered in rebuttal of service incur- sion for presumptive service connec- rence of a disease listed in § 3.309 will tion for chronic disease as distin- be any evidence of a nature usually ac- guished from tropical diseases referred to in paragraph (b) of this section cepted as competent to indicate the based on peacetime service before Jan- time of existence or inception of dis- uary 1, 1947. ease, and medical judgment will be ex- (b) Tropical disease. In claims based ercised in making determinations rel- on peacetime service before January 1, ative to the effect of intercurrent in- 1947, a veteran of 6 months or more jury or disease. The expression ‘‘af- service who contracts a tropical dis- firmative evidence to the contrary’’ ease listed in § 3.309(b) or a resultant will not be taken to require a conclu- disorder or disease originating because sive showing, but such showing as of therapy administered in connection would, in sound medical reasoning and with a tropical disease or as a prevent- in the consideration of all evidence of ative, will be considered to have in- record, support a conclusion that the curred such disability in service when disease was not incurred in service. As it is shown to exist to the degree of 10 to tropical diseases the fact that the percent or more within 1 year after veteran had no service in a locality separation from active service, or at a having a high incidence of the disease time when standard and accepted trea- may be considered as evidence to rebut tises indicate that the incubation pe- the presumption, as may residence dur- riod commenced during active service ing the period in question in a region unless shown by clear and unmistak- where the particular disease is enable evidence not to have been of serv- demic. The known incubation periods ice origin. The requirement of 6 of tropical diseases should be used as a months or more service means active, factor in rebuttal of presumptive serv- continuous service, during one or more ice connection as showing inception be- enlistment periods. fore or after service. (Authority: 38 U.S.C. 1133) (2) The presumption of aggravation [39 FR 34530, Sept. 26, 1974] provided in this section may be rebutted by affirmative evidence that the § 3.309 Disease subject to presumptive preexisting condition was not aggra- service connection. vated by service, which may include af- (a) Chronic diseases. The following firmative evidence that any increase in diseases shall be granted service con- disability was due to an intercurrent nection although not otherwise estab- disease or injury suffered after separa- lished as incurred in or aggravated by tion from service or evidence suffi- service if manifested to a compensable cient, under § 3.306 of this part, to show degree within the applicable time lim- that the increase in disability was due its under § 3.307 following service in a

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period of war or following peacetime it represents a medically sound interpreta- service on or after January 1, 1947, pro- tion of sufficient clinical findings war- vided the rebuttable presumption pro- ranting such diagnosis and provides an visions of § 3.307 are also satisfied. adequate basis for a differential diagnosis from other conditions with like symptoma- Anemia, primary. tology; in short, where the preponderance Arteriosclerosis. of evidence indicates gastric or duodenal Arthritis. ulcer (peptic ulcer). Whenever possible, of Atrophy, progressive muscular. course, laboratory findings should be used Brain hemorrhage. in corroboration of the clinical data. Brain thrombosis. Bronchiectasis. (b) Tropical diseases. The following Calculi of the kidney, bladder, or gall- diseases shall be granted service con- bladder. nection as a result of tropical service, although not otherwise established as Cardiovascular-renal disease, includ- incurred in service if manifested to a ing hypertension. (This term applies to compensable degree within the applica- combination involvement of the type ble time limits under § 3.307 or § 3.308 of arteriosclerosis, nephritis, and or- following service in a period of war or ganic heart disease, and since hyper- following peacetime service, provided tension is an early symptom long pre- the rebuttable presumption provisions ceding the development of those dis- of § 3.307 are also satisfied. eases in their more obvious forms, a disabling hypertension within the 1- Amebiasis. year period will be given the same ben- Blackwater fever. efit of service connection as any of the Cholera. chronic diseases listed.) Dracontiasis. Dysentery. Cirrhosis of the liver. Filariasis. Coccidioidomycosis. Diabetes mellitus. Leishmaniasis, including kala-azar. Encephalitis lethargica residuals. Loiasis. Endocarditis. (This term covers all forms of Malaria. valvular heart disease.) Onchocerciasis. Endocrinopathies. Oroya fever. Epilepsies. Pinta. Hansen’s disease. Plague. Hodgkin’s disease. Schistosomiasis. Leukemia. Yaws. Lupus erythematosus, systemic. Yellow fever. Myasthenia gravis. Resultant disorders or diseases originating Myelitis. because of therapy administered in connec- Myocarditis. tion with such diseases or as a preventa- Nephritis. tive thereof. Other organic diseases of the nervous system. (c) Diseases specific as to former pris- Osteitis deformans (Paget’s disease). oners of war. (1) If a veteran is a former Osteomalacia. prisoner of war, the following diseases Palsy, bulbar. Paralysis agitans. shall be service connected if manifest Psychoses. to a degree of disability of 10 percent or Purpura idiopathic, hemorrhagic. more at any time after discharge or re- Raynaud’s disease. lease from active military, naval, or Sarcoidosis. air service even though there is no Scleroderma. record of such disease during service, Sclerosis, amyotrophic lateral. provided the rebuttable presumption Sclerosis, multiple. provisions of § 3.307 are also satisfied. Syringomyelia. Thromboangiitis obliterans (Buerger’s dis- Psychosis. ease). Any of the anxiety states. Tuberculosis, active. Dysthymic disorder (or depressive neurosis). Tumors, malignant, or of the brain or spinal Organic residuals of frostbite, if it is deter- cord or peripheral nerves. mined that the veteran was interned in cli- Ulcers, peptic (gastric or duodenal) (A proper matic conditions consistent with the oc- diagnosis of gastric or duodenal ulcer (pep- currence of frostbite. tic ulcer) is to be considered established if Post-traumatic osteoarthritis.

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Atherosclerotic heart disease or hyper- (xii) Cancer of the gall bladder. tensive vascular disease (including hyper- (xiii) Primary liver cancer (except if tensive heart disease) and their complica- cirrhosis or hepatitis B is indicated). tions (including myocardial infarction, (xiv) Cancer of the salivary gland. congestive heart failure, arrhythmia). Stroke and its complications. (xv) Cancer of the urinary tract. On or after October 10, 2008, Osteoporosis, if (xvi) Bronchiolo-alveolar carcinoma. the Secretary determines that the veteran (xvii) Cancer of the bone. has posttraumatic stress disorder (PTSD). (xviii) Cancer of the brain. (2) If the veteran: (xix) Cancer of the colon. (i) Is a former prisoner of war and; (xx) Cancer of the lung. (ii) Was interned or detained for not (xxi) Cancer of the ovary. less than 30 days, the following dis- NOTE: For the purposes of this section, the eases shall be service connected if term ‘‘urinary tract’’ means the kidneys, manifest to a degree of 10 percent or renal pelves, ureters, urinary bladder, and more at any time after discharge or re- urethra. lease from active military, naval, or air service even though there is no (Authority: 38 U.S.C. 1112(c)(2)) record of such disease during service, (3) For purposes of this section: provided the rebuttable presumption (i) The term radiation-exposed veteran provisions of § 3.307 are also satisfied. means either a veteran who while serv- Avitaminosis. ing on active duty, or an individual Beriberi (including beriberi heart disease). who while a member of a reserve com- Chronic dysentery. Helminthiasis. ponent of the Armed Forces during a Malnutrition (including optic atrophy asso- period of active duty for training or in- ciated with malnutrition). active duty training, participated in a Pellagra. radiation-risk activity. Any other nutritional deficiency. (ii) The term radiation-risk activity Irritable bowel syndrome. means: Peptic ulcer disease. (A) Onsite participation in a test in- Peripheral neuropathy except where directly related to infectious causes. volving the atmospheric detonation of Cirrhosis of the liver. a nuclear device. On or after September 28, 2009, Osteoporosis. (B) The occupation of Hiroshima or Nagasaki, Japan, by United States (Authority: 38 U.S.C. 1112(b)) forces during the period beginning on (d) Diseases specific to radiation-ex- August 6, 1945, and ending on July 1, posed veterans. (1) The diseases listed in 1946. paragraph (d)(2) of this section shall be (C) Internment as a prisoner of war service-connected if they become mani- in Japan (or service on active duty in fest in a radiation-exposed veteran as Japan immediately following such in- defined in paragraph (d)(3) of this sec- ternment) during World War II which tion, provided the rebuttable presump- resulted in an opportunity for exposure tion provisions of § 3.307 of this part are to ionizing radiation comparable to also satisfied. that of the United States occupation (2) The diseases referred to in para- forces in Hiroshima or Nagasaki, graph (d)(1) of this section are the fol- Japan, during the period beginning on lowing: August 6, 1945, and ending on July 1, (i) Leukemia (other than chronic 1946. lymphocytic leukemia). (D)(1) Service in which the service (ii) Cancer of the thyroid. member was, as part of his or her offi- (iii) Cancer of the breast. cial military duties, present during a (iv) Cancer of the pharynx. total of at least 250 days before Feb- (v) Cancer of the esophagus. ruary 1, 1992, on the grounds of a gas- (vi) Cancer of the stomach. eous diffusion plant located in Padu- (vii) Cancer of the small intestine. cah, Kentucky, Portsmouth, Ohio, or (viii) Cancer of the pancreas. the area identified as K25 at Oak Ridge, (ix) Multiple myeloma. Tennessee, if, during such service the (x) Lymphomas (except Hodgkin’s veteran: disease). (i) Was monitored for each of the 250 (xi) Cancer of the bile ducts. days of such service through the use of

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dosimetry badges for exposure at the (v) For tests conducted by the United plant of the external parts of veteran’s States, the term operational period body to radiation; or means: (ii) Served for each of the 250 days of (A) For Operation TRINITY the pe- such service in a position that had ex- riod July 16, 1945 through August 6, posures comparable to a job that is or 1945. was monitored through the use of do- (B) For Operation CROSSROADS the simetry badges; or period July 1, 1946 through August 31, (2) Service before January 1, 1974, on 1946. Amchitka Island, Alaska, if, during (C) For Operation SANDSTONE the such service, the veteran was exposed period April 15, 1948 through May 20, to ionizing radiation in the perform- 1948. ance of duty related to the Long Shot, (D) For Operation RANGER the pe- Milrow, or Cannikin underground nu- riod January 27, 1951 through February clear tests. 6, 1951. (3) For purposes of paragraph (E) For Operation GREENHOUSE the (d)(3)(ii)(D)(1) of this section, the term period April 8, 1951 through June 20, ‘‘day’’ refers to all or any portion of a 1951. calendar day. (F) For Operation BUSTER-JANGLE (E) Service in a capacity which, if the period October 22, 1951 through De- performed as an employee of the De- cember 20, 1951. partment of Energy, would qualify the (G) For Operation TUMBLER-SNAP- individual for inclusion as a member of PER the period April 1, 1952 through the Special Exposure Cohort under sec- June 20, 1952. tion 3621(14) of the Energy Employees (H) For Operation IVY the period No- Occupational Illness Compensation vember 1, 1952 through December 31, Program Act of 2000 (42 U.S.C. 1952. 7384l(14)). (I) For Operation UPSHOT-KNOT- (iii) The term atmospheric detonation HOLE the period March 17, 1953 includes underwater nuclear detona- through June 20, 1953. tions. (J) For Operation CASTLE the period (iv) The term onsite participation March 1, 1954 through May 31, 1954. means: (K) For Operation TEAPOT the period (A) During the official operational February 18, 1955 through June 10, 1955. period of an atmospheric nuclear test, (L) For Operation WIGWAM the pe- presence at the test site, or perform- riod May 14, 1955 through May 15, 1955. ance of official military duties in con- (M) For Operation REDWING the pe- nection with ships, aircraft or other riod May 5, 1956 through August 6, 1956. equipment used in direct support of the (N) For Operation PLUMBBOB the nuclear test. period May 28, 1957 through October 22, (B) During the six month period fol- 1957. lowing the official operational period (O) For Operation HARDTACK I the of an atmospheric nuclear test, pres- period April 28, 1958 through October ence at the test site or other test stag- 31, 1958. ing area to perform official military (P) For Operation ARGUS the period duties in connection with completion August 27, 1958 through September 10, of projects related to the nuclear test 1958. including decontamination of equip- (Q) For Operation HARDTACK II the ment used during the nuclear test. period September 19, 1958 through Oc- (C) Service as a member of the garri- tober 31, 1958. son or maintenance forces on Eniwetok (R) For Operation DOMINIC I the pe- during the periods June 21, 1951, riod April 25, 1962 through December 31, through July 1, 1952, August 7, 1956, 1962. through August 7, 1957, or November 1, (S) For Operation DOMINIC II/PLOW- 1958, through April 30, 1959. SHARE the period July 6, 1962 through (D) Assignment to official military August 15, 1962. duties at Naval Shipyards involving (vi) The term ‘‘occupation of Hiro- the decontamination of ships that par- shima or Nagasaki, Japan, by United ticipated in Operation Crossroads. States forces’’ means official military

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duties within 10 miles of the city limits coronary bypass surgery; and stable, unsta- of either Hiroshima or Nagasaki, ble and Prinzmetal’s angina) Japan, which were required to perform All chronic B-cell leukemias (including, but or support military occupation func- not limited to, hairy-cell leukemia and chronic lymphocytic leukemia) tions such as occupation of territory, Multiple myeloma control of the population, stabilization Non-Hodgkin’s lymphoma of the government, demilitarization of Parkinson’s disease the Japanese military, rehabilitation Early-onset peripheral neuropathy of the infrastructure or deactivation Porphyria cutanea tarda and conversion of war plants or mate- Prostate cancer rials. Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) (vii) Former prisoners of war who had Soft-tissue sarcoma (other than an opportunity for exposure to ionizing osteosarcoma, chondrosarcoma, Kaposi’s radiation comparable to that of vet- sarcoma, or mesothelioma) erans who participated in the occupa- NOTE 1: The term ‘‘soft-tissue sarcoma’’ in- tion of Hiroshima or Nagasaki, Japan, cludes the following: by United States forces shall include Adult fibrosarcoma those who, at any time during the pe- Dermatofibrosarcoma protuberans riod August 6, 1945, through July 1, Malignant fibrous histiocytoma 1946: Liposarcoma (A) Were interned within 75 miles of Leiomyosarcoma the city limits of Hiroshima or within Epithelioid leiomyosarcoma (malignant leiomyoblastoma) 150 miles of the city limits of Nagasaki, Rhabdomyosarcoma or Ectomesenchymoma (B) Can affirmatively show they Angiosarcoma (hemangiosarcoma and worked within the areas set forth in lymphangiosarcoma) paragraph (d)(3)(vii)(A) of this section Proliferating (systemic) although not interned within those angioendotheliomatosis areas, or Malignant glomus tumor (C) Served immediately following in- Malignant hemangiopericytoma Synovial sarcoma (malignant synovioma) ternment in a capacity which satisfies Malignant giant cell tumor of tendon sheath the definition in paragraph (d)(3)(vi) of Malignant schwannoma, including malig- this section, or nant schwannoma with rhabdomyoblastic (D) Were repatriated through the differentiation (malignant Triton tumor), port of Nagasaki. glandular and epithelioid malignant schwannomas (Authority: 38 U.S.C. 1110, 1112, 1131) Malignant mesenchymoma Malignant granular cell tumor (e) Disease associated with exposure to Alveolar soft part sarcoma certain herbicide agents. If a veteran was Epithelioid sarcoma exposed to an herbicide agent during Clear cell sarcoma of tendons and active military, naval, or air service, aponeuroses the following diseases shall be service- Extraskeletal Ewing’s sarcoma Congenital and infantile fibrosarcoma connected if the requirements of Malignant ganglioneuroma § 3.307(a)(6) are met even though there NOTE 2: For purposes of this section, the is no record of such disease during term ischemic heart disease does not include service, provided further that the re- hypertension or peripheral manifestations of buttable presumption provisions of arteriosclerosis such as peripheral vascular § 3.307(d) are also satisfied. disease or stroke, or any other condition that does not qualify within the generally AL amyloidosis accepted medical definition of Ischemic Chloracne or other acneform disease con- heart disease. sistent with chloracne (f) Disease associated with exposure to Type 2 diabetes (also known as Type II diabe- contaminants in the water supply at tes mellitus or adult-onset diabetes) Camp Lejeune. If a veteran, or former Hodgkin’s disease reservist or member of the National Ischemic heart disease (including, but not limited to, acute, subacute, and old myo- Guard, was exposed to contaminants in cardial infarction; atherosclerotic cardio- the water supply at Camp Lejeune dur- vascular disease including coronary artery ing military service and the exposure disease (including coronary spasm) and meets the requirements of § 3.307(a)(7),

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the following diseases shall be service- mine the extent of aggravation by de- connected even though there is no ducting the baseline level of severity, record of such disease during service, as well as any increase in severity due subject to the rebuttable presumption to the natural progress of the disease, provisions of § 3.307(d). from the current level. (1) Kidney cancer. (2) Liver cancer. (Authority: 38 U.S.C. 1110 and 1131) (3) Non-Hodgkin’s lymphoma. (4) Adult leukemia. (c) Cardiovascular disease. Ischemic (5) Multiple myeloma. heart disease or other cardiovascular (6) Parkinson’s disease. disease developing in a veteran who has (7) Aplastic anemia and other a service-connected amputation of one myelodysplastic syndromes. lower extremity at or above the knee (8) Bladder cancer. or service-connected amputations of both lower extremities at or above the (Authority: 38 U.S.C. 501(a) and 1112(b)) ankles, shall be held to be the proxi- [41 FR 55873, Dec. 23, 1976] mate result of the service-connected EDITORIAL NOTE: For FEDERAL REGISTER ci- amputation or amputations. tations affecting § 3.309, see the List of CFR (d) Traumatic brain injury. (1) In a vet- Sections Affected, which appears in the eran who has a service-connected trau- Finding Aids section of the printed volume matic brain injury, the following shall and at www.govinfo.gov. be held to be the proximate result of the service-connected traumatic brain § 3.310 Disabilities that are proxi- injury (TBI), in the absence of clear mately due to, or aggravated by, service-connected disease or injury. evidence to the contrary: (i) Parkinsonism, including Parkin- (a) General. Except as provided in son’s disease, following moderate or se- § 3.300(c), disability which is proxi- vere TBI; mately due to or the result of a service-connected disease or injury shall be (ii) Unprovoked seizures following service connected. When service con- moderate or severe TBI; nection is thus established for a sec- (iii) Dementias of the following ondary condition, the secondary condi- types: presenile dementia of the Alz- tion shall be considered a part of the heimer type, frontotemporal dementia, original condition. and dementia with Lewy bodies, if (b) Aggravation of nonservice-connected manifest within 15 years following disabilities. Any increase in severity of moderate or severe TBI; a nonservice-connected disease or in- (iv) Depression if manifest within 3 jury that is proximately due to or the years of moderate or severe TBI, or result of a service-connected disease or within 12 months of mild TBI; or injury, and not due to the natural (v) Diseases of hormone deficiency progress of the nonservice-connected that result from hypothalamo-pitui- disease, will be service connected. How- tary changes if manifest within 12 ever, VA will not concede that a non- months of moderate or severe TBI. service-connected disease or injury was (2) Neither the severity levels nor the aggravated by a service-connected dis- time limits in paragraph (d)(1) of this ease or injury unless the baseline level section preclude a finding of service of severity of the nonservice-connected connection for conditions shown by disease or injury is established by med- evidence to be proximately due to serv- ical evidence created before the onset ice-connected TBI. If a claim does not of aggravation or by the earliest med- meet the requirements of paragraph ical evidence created at any time be- (d)(1) with respect to the time of mani- tween the onset of aggravation and the festation or the severity of the TBI, or receipt of medical evidence estab- both, VA will develop and decide the lishing the current level of severity of claim under generally applicable prin- the nonservice-connected disease or in- ciples of service connection without re- jury. The rating activity will deter- gard to paragraph (d)(1). mine the baseline and current levels of (3)(i) For purposes of this section VA severity under the Schedule for Rating will use the following table for deter- Disabilities (38 CFR part 4) and determining the severity of a TBI:

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Mild Moderate Severe

Normal structural imaging ...... Normal or abnormal structural imaging ... Normal or abnormal structural imaging. LOC = 0–30 min ...... LOC > 30 min and < 24 hours ...... LOC > 24 hrs.

AOC = a moment up to 24 hrs ...... AOC > 24 hours. Severity based on other criteria.

PTA = 0–1 day ...... PTA > 1 and < 7 days ...... PTA > 7 days. GCS = 13–15 ...... GCS = 9–12 ...... GCS = 3–8.

NOTE: The factors considered are: the dose range reported will be pre- Structural imaging of the brain. sumed. LOC—Loss of consciousness. AOC—Alteration of consciousness/mental (Authority: 38 U.S.C. 501) state. (2) Request for dose information. Where PTA—Post-traumatic amnesia. necessary pursuant to paragraph (a)(1) GCS—Glasgow Coma Scale. (For purposes of this section, dose information will of injury stratification, the Glasgow Coma Scale is measured at or after 24 hours.) be requested as follows: (ii) The determination of the severity (i) Atmospheric nuclear weapons test participation claims. In claims based level under this paragraph is based on upon participation in atmospheric nu- the TBI symptoms at the time of in- clear testing, dose data will in all cases jury or shortly thereafter, rather than be requested from the appropriate of- the current level of functioning. VA fice of the Department of Defense. will not require that the TBI meet all (ii) Hiroshima and Nagasaki occupation the criteria listed under a certain se- claims. In all claims based on participa- verity level in order to classify the TBI tion in the American occupation of at that severity level. If a TBI meets Hiroshima or Nagasaki, Japan, prior to the criteria in more than one category July 1, 1946, dose data will be requested of severity, then VA will rank the TBI from the Department of Defense. at the highest level in which a cri- (iii) Other exposure claims. In all other terion is met, except where the quali- claims involving radiation exposure, a fying criterion is the same at both lev- request will be made for any available els. records concerning the veteran’s expo- (Authority: 38 U.S.C. 501, 1110 and 1131) sure to radiation. These records normally include but may not be limited [44 FR 50340, Aug. 28, 1979, as amended at 66 to the veteran’s Record of Occupa- FR 18198, Apr. 6, 2001; 71 FR 52747, Sept. 7, tional Exposure to Ionizing Radiation 2006; 78 FR 76208, Dec. 17, 2013] (DD Form 1141), if maintained, service § 3.311 Claims based on exposure to medical records, and other records ionizing radiation. which may contain information pertaining to the veteran’s radiation dose (a) Determinations of exposure and in service. All such records will be for- dose—(1) Dose assessment. In all claims warded to the Under Secretary for in which it is established that a Health, who will be responsible for radiogenic disease first became mani- preparation of a dose estimate, to the fest after service and was not manifest extent feasible, based on available to a compensable degree within any ap- methodologies. plicable presumptive period as speci- (3) Referral to independent expert. fied in § 3.307 or § 3.309, and it is con- When necessary to reconcile a material tended the disease is a result of expo- difference between an estimate of dose, sure to ionizing radiation in service, an from a credible source, submitted by or assessment will be made as to the size on behalf of a claimant, and dose data and nature of the radiation dose or derived from official military records, doses. When dose estimates provided the estimates and supporting docu- pursuant to paragraph (a)(2) of this sec- mentation shall be referred to an inde- tion are reported as a range of doses to pendent expert, selected by the Direc- which a veteran may have been ex- tor of the National Institutes of posed, exposure at the highest level of Health, who shall prepare a separate

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radiation dose estimate for consider- ease that may be induced by ionizing ation in adjudication of the claim. For radiation and shall include the fol- purposes of this paragraph: lowing: (i) The difference between the claim- (i) All forms of leukemia except ant’s estimate and dose data derived chronic lymphatic (lymphocytic) leu- from official military records shall or- kemia; dinarily be considered material if one (ii) Thyroid cancer; estimate is at least double the other (iii) Breast cancer; estimate. (iv) Lung cancer; (ii) A dose estimate shall be consid- (v) Bone cancer; ered from a ‘‘credible source’’ if pre- (vi) Liver cancer; pared by a person or persons certified (vii) Skin cancer; by an appropriate professional body in (viii) Esophageal cancer; the field of health physics, nuclear (ix) Stomach cancer; medicine or radiology and if based on (x) Colon cancer; analysis of the facts and circumstances (xi) Pancreatic cancer; of the particular claim. (xii) Kidney cancer; (4) Exposure. In cases described in (xiii) Urinary bladder cancer; paragraph (a)(2)(i) and (ii) of this sec- (xiv) Salivary gland cancer; tion: (xv) Multiple myeloma; (i) If military records do not estab- (xvi) Posterior subcapsular cataracts; lish presence at or absence from a site (xvii) Non-malignant thyroid nodular at which exposure to radiation is disease; claimed to have occurred, the veteran’s (xviii) Ovarian cancer; presence at the site will be conceded. (xix) Parathyroid adenoma; (ii) Neither the veteran nor the vet- (xx) Tumors of the brain and central eran’s survivors may be required to nervous system; produce evidence substantiating expo- (xxi) Cancer of the rectum; sure if the information in the veteran’s (xxii) Lymphomas other than Hodg- service records or other records main- kin’s disease; tained by the Department of Defense is (xxiii) Prostate cancer; and consistent with the claim that the vet- (xxiv) Any other cancer. eran was present where and when the claimed exposure occurred. (Authority: 38 U.S.C. 501) (b) Initial review of claims. (1) When it is determined: (3) Public Law 98–542 requires VA to (i) A veteran was exposed to ionizing determine whether sound medical and radiation as a result of participation in scientific evidence supports estab- the atmospheric testing of nuclear lishing a rule identifying polycythemia weapons, the occupation of Hiroshima vera as a radiogenic disease. VA has de- or Nagasaki, Japan, from September termined that sound medical and sci- 1945 until July 1946, or other activities entific evidence does not support in- as claimed; cluding polycythemia vera on the list (ii) The veteran subsequently devel- of known radiogenic diseases in this oped a radiogenic disease; and regulation. Even so, VA will consider a (iii) Such disease first became mani- claim based on the assertion that poly- fest within the period specified in para- cythemia vera is a radiogenic disease graph (b)(5) of this section; before its under the provisions of paragraph (b)(4) adjudication the claim will be referred of this section. to the Under Secretary for Benefits for further consideration in accordance (Authority: Pub. L. 98–542, section with paragraph (c) of this section. If 5(b)(2)(A)(i), (iii)). any of the foregoing 3 requirements has (4) If a claim is based on a disease not been met, it shall not be deter- other than one of those listed in para- mined that a disease has resulted from graph (b)(2) of this section, VA shall exposure to ionizing radiation under nevertheless consider the claim under such circumstances. the provisions of this section provided (2) For purposes of this section the that the claimant has cited or sub- term ‘‘radiogenic disease’’ means a dis- mitted competent scientific or medical

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evidence that the claimed condition is outside consultant in accordance with a radiogenic disease. paragraph (d) of this section. (5) For the purposes of paragraph (3) For purposes of paragraph (c)(1) of (b)(1) of this section: this section, ‘‘sound scientific evi- (i) Bone cancer must become mani- dence’’ means observations, findings, fest within 30 years after exposure; or conclusions which are statistically (ii) Leukemia may become manifest and epidemiologically valid, are statis- at any time after exposure; tically significant, are capable of rep- (iii) Posterior subcapsular cataracts lication, and withstand peer review, must become manifest 6 months or and ‘‘sound medical evidence’’ means more after exposure; and observations, findings, or conclusions (iv) Other diseases specified in para- which are consistent with current med- graph (b)(2) of this section must be- ical knowledge and are so reasonable come manifest 5 years or more after ex- and logical as to serve as the basis of posure. management of a medical condition. (d) Referral to outside consultants. (1) (Authority: 38 U.S.C. 501; Pub. L. 98–542) Referrals pursuant to paragraph (c) of this section shall be to consultants se- (c) Review by Under Secretary for Bene- lected by the Under Secretary for fits. (1) When a claim is forwarded for Health from outside VA, upon the rec- review pursuant to paragraph (b)(1) of ommendation of the Director of the this section, the Under Secretary for National Cancer Institute. The consult- Benefits shall consider the claim with ant will be asked to evaluate the claim reference to the factors specified in and provide an opinion as to the likeli- paragraph (e) of this section and may hood the disease is a result of exposure request an advisory medical opinion as claimed. from the Under Secretary for Health. (2) The request for opinion shall be in (i) If after such consideration the writing and shall include a description Under Secretary for Benefits is con- of: vinced sound scientific and medical (i) The disease, including the specific evidence supports the conclusion it is cell type and stage, if known, and when at least as likely as not the veteran’s the disease first became manifest; disease resulted from exposure to radi- (ii) The circumstances, including ation in service, the Under Secretary date, of the veteran’s exposure; for Benefits shall so inform the regional office of jurisdiction in writing. (iii) The veteran’s age, gender, and The Under Secretary for Benefits shall pertinent family history; set forth the rationale for this conclu- (iv) The veteran’s history of exposure sion, including an evaluation of the to known carcinogens, occupationally claim under the applicable factors or otherwise; specified in paragraph (e) of this sec- (v) Evidence of any other effects radi- tion. ation exposure may have had on the (ii) If the Under Secretary for Bene- veteran; and fits determines there is no reasonable (vi) Any other information relevant possibility that the veteran’s disease to determination of causation of the resulted from radiation exposure in veteran’s disease. service, the Under Secretary for Bene- The Under Secretary for Benefits shall fits shall so inform the regional office forward, with the request, copies of of jurisidiction in writing, setting forth pertinent medical records and, where the rationale for this conclusion. available, dose assessments from offi- (2) If the Under Secretary for Bene- cial sources, from credible sources as fits, after considering any opinion of defined in paragraph (a)(3)(ii) of this the Under Secretary for Health, is un- section, and from an independent ex- able to conclude whether it is at least pert pursuant to paragraph (a)(3) of as likely as not, or that there is no rea- this section. sonable possibility, the veteran’s dis- (3) The consultant shall evaluate the ease resulted from radiation exposure claim under the factors specified in in service, the Under Secretary for paragraph (e) of this section and re- Benefits shall refer the matter to an spond in writing, stating whether it is

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either likely, unlikely, or approxi- nonservice-related condition or event mately as likely as not the veteran’s is more likely the cause of the disease. disease resulted from exposure to ion- (Authority: Pub. L. 98–542) izing radiation in service. The response shall set forth the rationale for the [50 FR 34459, Aug. 26, 1985, as amended at 54 consultant’s conclusion, including the FR 42803, Oct. 18, 1989; 58 FR 16359, Mar. 26, consultant’s evaluation under the ap- 1993. Redesignated at 59 FR 5107, Feb. 3, 1994, plicable factors specified in paragraph and amended at 59 FR 45975, Sept. 6, 1994; 60 FR 9628, Feb. 21, 1995; 60 FR 53277, Oct. 13, (e) of this section. The Under Secretary 1995; 63 FR 50994, Sept. 24, 1998; 67 FR 6871, for Benefits shall review the consult- Feb. 14, 2002] ant’s response and transmit it with any comments to the regional office of ju- § 3.312 Cause of death. risdiction for use in adjudication of the (a) General. The death of a veteran claim. will be considered as having been due (e) Factors for consideration. Factors to a service-connected disability when to be considered in determining wheth- the evidence establishes that such dis- er a veteran’s disease resulted from ex- ability was either the principal or a posure to ionizing radiation in service contributory cause of death. The issue include: involved will be determined by exercise (1) The probable dose, in terms of of sound judgment, without recourse to dose type, rate and duration as a factor speculation, after a careful analysis in inducing the disease, taking into ac- has been made of all the facts and cir- count any known limitations in the do- cumstances surrounding the death of simetry devices employed in its meas- the veteran, including, particularly, urement or the methodologies employed in its estimation; autopsy reports. (2) The relative sensitivity of the in- (b) Principal cause of death. The serv- volved tissue to induction, by ionizing ice-connected disability will be consid- radiation, of the specific pathology; ered as the principal (primary) cause of (3) The veteran’s gender and perti- death when such disability, singly or nent family history; jointly with some other condition, was the immediate or underlying cause of (4) The veteran’s age at time of exposure; death or was etiologically related thereto. (5) The time-lapse between exposure and onset of the disease; and (c) Contributory cause of death. (1) Contributory cause of death is inher- (6) The extent to which exposure to radiation, or other carcinogens, outside ently one not related to the principal of service may have contributed to de- cause. In determining whether the velopment of the disease. service-connected disability contrib- (f) Adjudication of claim. The deter- uted to death, it must be shown that it mination of service connection will be contributed substantially or materi- made under the generally applicable ally; that it combined to cause death; provisions of this part, giving due con- that it aided or lent assistance to the sideration to all evidence of record, in- production of death. It is not sufficient cluding any opinion provided by the to show that it casually shared in pro- Under Secretary for Health or an out- ducing death, but rather it must be side consultant, and to the evaluations shown that there was a causal connec- published pursuant to § 1.17 of this tion. title. With regard to any issue material (2) Generally, minor service-con- to consideration of a claim, the provi- nected disabilities, particularly those sions of § 3.102 of this title apply. of a static nature or not materially af- (g) Willful misconduct and supervening fecting a vital organ, would not be held cause. In no case will service connec- to have contributed to death primarily tion be established if the disease is due due to unrelated disability. In the same to the veteran’s own willful mis- category there would be included serv- conduct, or if there is affirmative evi- ice-connected disease or injuries of any dence to establish that a supervening, evaluation (even though evaluated as

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100 percent disabling) but of a quies- is sufficient to establish service con- cent or static nature involving mus- nection for that disease. cular or skeletal functions and not materially affecting other vital body func- (Authority: 38 U.S.C. 501) tions. [55 FR 43124, Oct. 26, 1990] (3) Service-connected diseases or injuries involving active processes affect- § 3.314 Basic pension determinations. ing vital organs should receive careful (a) Prior to the Mexican border period. consideration as a contributory cause While pensions are granted based on of death, the primary cause being unre- certain service prior to the Mexican lated, from the viewpoint of whether border period, the only rating factors there were resulting debilitating ef- in claims therefor are: fects and general impairment of health (1) Claims based on service of less to an extent that would render the per- than 90 days in the Spanish-American son materially less capable of resisting War require a rating determination as the effects of other disease or injury to whether the veteran was discharged primarily causing death. Where the or released from service for a service- service-connected condition affects connected disability or had at the time vital organs as distinguished from mus- of separation from service a service- cular or skeletal functions and is evaluated as 100 percent disabling, debilita- connected disability, shown by official tion may be assumed. service records, which in medical judg- (4) There are primary causes of death ment would have warranted a dis- which by their very nature are so over- charge for disability. Eligibility in whelming that eventual death can be such cases requires a finding that the anticipated irrespective of coexisting disability was incurred in or aggra- conditions, but, even in such cases, vated by service in line of duty without there is for consideration whether benefit of presumptive provisions of there may be a reasonable basis for law or Department of Veterans Affairs holding that a service-connected condi- regulations. tion was of such severity as to have a material influence in accelerating (Authority: 38 U.S.C. 1512) death. In this situation, however, it (2) Veterans entitled to pension on would not generally be reasonable to the basis of service in the Spanish- hold that a service-connected condition American War may be entitled to an accelerated death unless such condi- increased rate of pension if rated as tion affected a vital organ and was of being in need of regular aid and attend- itself of a progressive or debilitating ance. Veterans who have elected pen- nature. sion under Pub. L. 86–211 (73 Stat. 432) who are not rated as being in need of CROSS REFERENCES: Reasonable doubt. See regular aid and attendance may be en- § 3.102. Service connection for mental un- titled to increased pension based on 100 soundness in suicide. See § 3.302. percent permanent disability together [26 FR 1582, Feb. 24, 1961, as amended at 54 with independent disability of 60 per- FR 34981, Aug. 23, 1989; 54 FR 42803, Oct. 18, cent or more or by reason of being per- 1989] manently housebound as provided in § 3.313 Claims based on service in Viet- § 3.351 (d). nam. (Authority: 38 U.S.C. 1502 (b), (c), 512) (a) Service in Vietnam. Service in Viet- nam includes service in the waters off- (b) Mexican border period and later war shore, or service in other locations if periods. Non-service-connected dis- the conditions of service involved duty ability and death pension may be paid or visitation in Vietnam. based on service in the Mexican border (b) Service connection based on service period, World War I, World War II, the in Vietnam. Service in Vietnam during Korean conflict and the Vietnam era. the Vietnam Era together with the de- Rating determinations in such claims velopment of non-Hodgkin’s lymphoma will be required in the following situa- manifested subsequent to such service tions:

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(1) Claims based on service of less § 3.315 Basic eligibility determina- than 90 days may require a determinations; dependents, loans, education. tion as to whether the veteran was dis- (a) Child over 18 years. A child of a charged or released from service for a veteran may be considered a ‘‘child’’ service-connected disability or had at after age 18 for purposes of benefits the time of separation from service a under title 38, United States Code (ex- service-connected disability, shown by cept ch. 19 and sec. 8502(b) of ch. 85), if official service records, which in med- found by a rating determination to ical judgment would have warranted a have become, prior to age 18, perma- discharge for disability. Eligibility in nently incapable of self-support. such cases requires a finding that the disability was incurred in or aggra- (Authority: 38 U.S.C. 101(4)(B)) vated by service in line of duty without benefit of presumptive provisions of (b) Loans. If a veteran of World War law or Department of Veterans Affairs II the Korean conflict or the Vietnam regulations (38 U.S.C. 1521(g)(2)) unless, era had less than 90 days of service, or in the case of death pension, the vet- if a veteran who served after July 25, eran was, at the time of death, receiv- 1947, and prior to June 27, 1950, or after ing (or entitled to receive) compensa- January 31, 1955, and prior to August 5, tion or retirement pay based upon a 1964, or after May 7, 1975, has less than wartime service-connected disability. 181 days of service on active duty as defined in §§ 36.4301 and 36.4501, eligibility (Authority: 38 U.S.C. 1541(a) and 1542(a)) of the veteran for a loan under 38 (2) Determinations of permanent U.S.C. ch. 37 requires a determination total disability for pension purposes that the veteran was discharged or re- will be based on non-service-connected leased because of a service-connected disability or combined non-service-con- disability or that the official service nected and service-connected disabil- department records show that he or she ities not the result of willful mis- had at the time of separation from conduct. However, for pension under service a service-connected disability Pub. L. 86–211 (73 Stat. 432), permanent which in medical judgment would have and total disability will be presumed warranted a discharge for disability. where the veteran has attained age 65 These determinations are subject to or effective January 1, 1977, where the the presumption of incurrence under veteran became unemployable after § 3.304(b). Determinations based on age 65. World War II, Korean conflict and Viet- nam era service are also subject to the (Authority: 38 U.S.C. 1502(a), 1523(a)) presumption of aggravation under (3) Veterans entitled to nonservice- § 3.306(b) while determination based on connected disability pension may be service on or after February 1, 1955, and entitled to an increased rate of pension before August 5, 1964, or after May 7, if rated as being in need of regular aid 1975, are subject to the presumption of and attendance. Veterans entitled to aggravation under § 3.306 (a) and (c). protected pension or pension under The provisions of this paragraph are Pub. L. 86–211 (73 Stat. 432) who are not also applicable, regardless of length of rated as being in need of regular aid service, in determining eligibility to and attendance may be entitled to in- the maximum period of entitlement creased pension based on a 100 percent based on discharge or release for a permanent disability together with service-connected disability. (See also independent disability of 60 percent or the minimum service requirements of more or by reason of being perma- § 3.12a.) nently housebound as provided in § 3.351 (d) or (e). (Authority: 38 U.S.C. 3702, 3707) (Authority: 38 U.S.C. 1502 (b), (c), 1521) (c) Veterans’ educational assistance. (1) [31 FR 4680, Mar. 19, 1966, as amended at 32 A determination is required as to FR 13224, Sept. 19, 1967; 36 FR 8446, May 6, whether a veteran was discharged or 1971; 40 FR 56434, Dec. 3, 1975; 41 FR 56804, released from active duty service be- Dec. 30, 1976; 61 FR 20438, May 7, 1996] cause of a service-connected disability

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(or whether the official service depart- chapter only if he or she was dis- ment records show that the veteran charged from the Selected Reserve for had at time of separation from service a service-connected disability or for a a service-connected disability which in medical condition which preexisted the medical judgment would have war- veteran’s having become a member of ranted discharge for disability) when- the Selected Reserve and which VA ever any of the following cir- finds is not service connected. cumstances exist: (3) A determination is required as to (i) The veteran applies for benefits whether a reservist has been unable to under 38 U.S.C. chapter 32, the min- pursue a program of education due to a imum active duty service requirements disability which has been incurred in of 38 U.S.C. 5303A apply to him or her, or aggravated by service in the Se- and the veteran would be eligible for lected Reserve when— such benefits only if— (i) The reservist is otherwise entitled (A) He or she was discharged or re- to educational assistance under 10 leased from active duty for a disability U.S.C. chapter 1606, and incurred or aggravated in line of duty, (ii) He or she applies for an extension or (B) He or she has a disability that VA of his or her eligibility period. has determined to be compensable (4) The determinations required by under 38 U.S.C. chapter 11; or paragraphs (c)(1) through (c)(3) of this (ii) The veteran applies for benefits section are subject to the presumptions under 38 U.S.C. chapter 30 and— of incurrence under § 3.304(b) and aggra- (A) The evidence of record does not vation under § 3.306 (a) and (c) of this clearly show either that the veteran part, based on service rendered after was discharged or released from active May 7, 1975. duty for disability or that the vet- (Authority: 38 U.S.C. 3011(a)(1)(A)(ii), eran’s discharge or release from active 3012(b)(1), 3202(1)(A), 10 U.S.C. 16133(b)) duty was unrelated to disability, and (B) The veteran is eligible for basic [38 FR 871, Jan. 5, 1973, as amended at 42 FR educational assistance except for the 22869, May 5, 1977; 50 FR 53315, Dec. 31, 1985; 51 FR 1510, Jan. 14, 1986; 55 FR 25974, June 26, minimum length of active duty service 1990; 61 FR 67950, Dec. 26, 1996] requirements of § 21.7042(a) or § 21.7044(a) of this chapter. § 3.316 Claims based on chronic effects (2) A determination is required as to of exposure to mustard gas and whether a veteran was discharged or Lewisite. released from service in the Selected (a) Except as provided in paragraph Reserve for a service-connected dis- (b) of this section, exposure to the ability or for a medical condition specified vesicant agents during active which preexisted the veteran’s having become a member of the Selected Re- military service under the cir- serve and which VA determines is not cumstances described below together service connected when the veteran ap- with the subsequent development of plies for benefits under 38 U.S.C. chap- any of the indicated conditions is suffi- ter 30 and— cient to establish service connection (i) Either the veteran would be eligi- for that condition: ble for basic educational assistance (1) Full-body exposure to nitrogen or under that chapter only if he or she sulfur mustard during active military was discharged from the Selected Re- service together with the subsequent serve for a service-connected dis- development of chronic conjunctivitis, ability, or for a medical condition keratitis, corneal opacities, scar for- which preexisted the veteran’s having mation, or the following cancers: Naso- become a member of the Selected Re- pharyngeal; laryngeal; lung (except serve and which VA finds is not service mesothelioma); or squamous cell car- connected, or cinoma of the skin. (ii) The veteran is entitled to basic (2) Full-body exposure to nitrogen or educational assistance and would be sulfur mustard or Lewisite during ac- entitled to receive it at the rates stat- tive military service together with the ed in § 21.7136(a) or § 21.7137(a) of this subsequent development of a chronic

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form of laryngitis, bronchitis, emphy- of conditions characterized by chronic or re- sema, asthma or chronic obstructive current symptoms that are unexplained by pulmonary disease. any structural, endoscopic, laboratory, or (3) Full-body exposure to nitrogen other objective signs of injury or disease and may be related to any part of the gastro- mustard during active military service intestinal tract. Specific functional gastro- together with the subsequent develop- intestinal disorders include, but are not lim- ment of acute nonlymphocytic leu- ited to, irritable bowel syndrome, functional kemia. dyspepsia, functional vomiting, functional (b) Service connection will not be es- constipation, functional bloating, functional tablished under this section if the abdominal pain syndrome, and functional claimed condition is due to the vet- dysphagia. These disorders are commonly eran’s own willful misconduct (See characterized by symptoms including abdominal pain, substernal burning or pain, § 3.301(c)) or there is affirmative evi- nausea, vomiting, altered bowel habits (in- dence that establishes a nonservice-re- cluding diarrhea, constipation), indigestion, lated supervening condition or event as bloating, postprandial fullness, and painful the cause of the claimed condition (See or difficult swallowing. Diagnosis of specific § 3.303). functional gastrointestinal disorders is made in accordance with established medical prin- [59 FR 42499, Aug. 18, 1994] ciples, which generally require symptom onset at least 6 months prior to diagnosis § 3.317 Compensation for certain dis- and the presence of symptoms sufficient to abilities occurring in Persian Gulf diagnose the specific disorder at least 3 veterans. months prior to diagnosis. (a) Compensation for disability due to (ii) For purposes of this section, the undiagnosed illness and medically unex- term medically unexplained chronic plained chronic multisymptom illnesses. multisymptom illness means a diagnosed (1) Except as provided in paragraph illness without conclusive (a)(7) of this section, VA will pay com- pathophysiology or etiology, that is pensation in accordance with chapter characterized by overlapping symp- 11 of title 38, United States Code, to a toms and signs and has features such as Persian Gulf veteran who exhibits ob- fatigue, pain, disability out of propor- jective indications of a qualifying tion to physical findings, and incon- chronic disability, provided that such sistent demonstration of laboratory ab- disability: normalities. Chronic multisymptom (i) Became manifest either during ac- illnesses of partially understood eti- tive military, naval, or air service in ology and pathophysiology, such as di- the Southwest Asia theater of oper- abetes and multiple sclerosis, will not ations, or to a degree of 10 percent or be considered medically unexplained. more not later than December 31, 2021; (3) For purposes of this section, ‘‘ob- and jective indications of chronic dis- (ii) By history, physical examination, ability’’ include both ‘‘signs,’’ in the and laboratory tests cannot be attrib- medical sense of objective evidence uted to any known clinical diagnosis. perceptible to an examining physician, (2)(i) For purposes of this section, a and other, non-medical indicators that qualifying chronic disability means a are capable of independent verification. chronic disability resulting from any of (4) For purposes of this section, dis- the following (or any combination of abilities that have existed for 6 months the following): or more and disabilities that exhibit (A) An undiagnosed illness; intermittent episodes of improvement (B) A medically unexplained chronic and worsening over a 6-month period multisymptom illness that is defined will be considered chronic. The 6- by a cluster of signs or symptoms, such month period of chronicity will be as: measured from the earliest date on (1) Chronic fatigue syndrome; which the pertinent evidence estab- (2) Fibromyalgia; lishes that the signs or symptoms of (3) Functional gastrointestinal dis- the disability first became manifest. orders (excluding structural gastro- (5) A qualifying chronic disability re- intestinal diseases). ferred to in this section shall be rated NOTE TO PARAGRAPH (a)(2)(i)(B)(3): Func- using evaluation criteria from part 4 of tional gastrointestinal disorders are a group this chapter for a disease or injury in

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which the functions affected, anatom- ice, provided the provisions of para- ical localization, or symptomatology graph (c)(3) of this section are also sat- are similar. isfied. (6) A qualifying chronic disability re- (2) The diseases referred to in para- ferred to in this section shall be consid- graph (c)(1) of this section are the fol- ered service connected for purposes of lowing: all laws of the United States. (i) Brucellosis. (7) Compensation shall not be paid (ii) Campylobacter jejuni. under this section for a chronic dis- (iii) Coxiella burnetii (Q fever). ability: (iv) Malaria. (i) If there is affirmative evidence (v) Mycobacterium tuberculosis. that the disability was not incurred (vi) Nontyphoid Salmonella. during active military, naval, or air (vii) Shigella. service in the Southwest Asia theater of operations; or (viii) Visceral leishmaniasis. (ii) If there is affirmative evidence (ix) West Nile virus. that the disability was caused by a (3) The diseases listed in paragraph supervening condition or event that oc- (c)(2) of this section will be considered curred between the veteran’s most re- to have been incurred in or aggravated cent departure from active duty in the by service under the circumstances Southwest Asia theater of operations outlined in paragraphs (c)(3)(i) and (ii) and the onset of the disability; or of this section even though there is no (iii) If there is affirmative evidence evidence of such disease during the pe- that the disability is the result of the riod of service. veteran’s own willful misconduct or (i) With three exceptions, the disease the abuse of alcohol or drugs. must have become manifest to a degree (b) Signs or symptoms of undiagnosed of 10 percent or more within 1 year illness and medically unexplained chronic from the date of separation from a multisymptom illnesses. For the purposes qualifying period of service as specified of paragraph (a)(1) of this section, signs in paragraph (c)(3)(ii) of this section. or symptoms which may be manifesta- Malaria must have become manifest to tions of undiagnosed illness or medi- a degree of 10 percent or more within 1 cally unexplained chronic multisymp- year from the date of separation from a tom illness include, but are not limited qualifying period of service or at a to: time when standard or accepted trea- (1) Fatigue. tises indicate that the incubation pe- (2) Signs or symptoms involving skin. riod commenced during a qualifying (3) Headache. period of service. There is no time (4) Muscle pain. limit for visceral leishmaniasis or tu- (5) Joint pain. berculosis to have become manifest to (6) Neurological signs or symptoms. a degree of 10 percent or more. (7) Neuropsychological signs or symp- (ii) For purposes of this paragraph toms. (c), the term qualifying period of service (8) Signs or symptoms involving the means a period of service meeting the respiratory system (upper or lower). requirements of paragraph (e) of this (9) Sleep disturbances. section or a period of active military, (10) Gastrointestinal signs or symp- naval, or air service on or after Sep- toms. tember 19, 2001, in Afghanistan. (11) Cardiovascular signs or symp- (4) A disease listed in paragraph (c)(2) toms. of this section shall not be presumed (12) Abnormal weight loss. service connected: (13) Menstrual disorders. (i) If there is affirmative evidence (c) Presumptive service connection for that the disease was not incurred dur- infectious diseases. (1) Except as pro- ing a qualifying period of service; or vided in paragraph (c)(4) of this sec- (ii) If there is affirmative evidence tion, a disease listed in paragraph (c)(2) that the disease was caused by a of this section will be service con- supervening condition or event that oc- nected if it becomes manifest in a vet- curred between the veteran’s most re- eran with a qualifying period of serv- cent departure from a qualifying period

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of service and the onset of the disease; disease, VA must determine, based on or the evidence in each case, whether the (iii) If there is affirmative evidence column B condition was caused by the that the disease is the result of the vet- infectious disease for purposes of pay- eran’s own willful misconduct or the ing disability compensation. This does abuse of alcohol or drugs. not preclude a finding that other mani- (d) Long-term health effects potentially festations of disability or secondary associated with infectious diseases. (1) A conditions were caused by an infectious report of the Institute of Medicine of disease. the National Academy of Sciences has (2) If a veteran presumed service con- identified the following long-term nected for one of the diseases listed in health effects that potentially are associated with the infectious diseases paragraph (c)(2) of this section is diag- listed in paragraph (c)(2) of this sec- nosed with one of the diseases listed in tion. These health effects and diseases column ‘‘B’’ in the table within the are listed alphabetically and are not time period specified for the disease in categorized by the level of association the same table, if a time period is spec- stated in the National Academy of ified or, otherwise, at any time, VA Sciences report (see Table to § 3.317). If will request a medical opinion as to a veteran who has or had an infectious whether it is at least as likely as not disease identified in column A also has that the condition was caused by the a condition identified in column B as veteran having had the associated dis- potentially related to that infectious ease in column ‘‘A’’ in that same table.

TABLE TO § 3.317—LONG-TERM HEALTH EFFECTS POTENTIALLY ASSOCIATED WITH INFECTIOUS DISEASES

B A Disease

Brucellosis ...... • Arthritis. • Cardiovascular, nervous, and respiratory system infections. • Chronic meningitis and meningoencephalitis. • Deafness. • Demyelinating meningovascular syndromes. • Episcleritis. • Fatigue, inattention, amnesia, and depression. • Guillain-Barre´ syndrome. • Hepatic abnormalities, including granulomatous hepatitis. • Multifocal choroiditis. • Myelitis-radiculoneuritis. • Nummular keratitis. • Papilledema. • Optic neuritis. • Orchioepididymitis and infections of the genitourinary system. • Sensorineural hearing loss. • Spondylitis. • Uveitis. Campylobacter jejuni ...... • Guillain-Barre´ syndrome if manifest within 2 months of the infection. • Reactive Arthritis if manifest within 3 months of the infection. • Uveitis if manifest within 1 month of the infection. Coxiella burnetii (Q fever) ...... • Chronic hepatitis. • Endocarditis. • Osteomyelitis. • Post-Q-fever chronic fatigue syndrome. • Vascular infection. Malaria ...... • Demyelinating polyneuropathy. • Guillain-Barre´ syndrome. • Hematologic manifestations (particularly anemia after falciparum malaria and splenic rupture after vivax malaria). • Immune-complex glomerulonephritis. • Neurologic disease, neuropsychiatric disease, or both. • Ophthalmologic manifestations, particularly retinal hemorrhage and scarring. • Plasmodium falciparum. • Plasmodium malariae. • Plasmodium ovale. • Plasmodium vivax. • Renal disease, especially nephrotic syndrome. Mycobacterium tuberculosis ..... • Active tuberculosis.

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TABLE TO § 3.317—LONG-TERM HEALTH EFFECTS POTENTIALLY ASSOCIATED WITH INFECTIOUS DISEASES—Continued

B A Disease

• Long-term adverse health outcomes due to irreversible tissue damage from severe forms of pulmonary and extrapulmonary tuberculosis and active tuberculosis. Nontyphoid Salmonella ...... • Reactive Arthritis if manifest within 3 months of the infection. Shigella ...... • Hemolytic-uremic syndrome if manifest within 1 month of the infection. • Reactive Arthritis if manifest within 3 months of the infection. Visceral leishmaniasis ...... • Delayed presentation of the acute clinical syndrome. • Post-kala-azar dermal leishmaniasis if manifest within 2 years of the infection. • Reactivation of visceral leishmaniasis in the context of future immunosuppression. West Nile virus ...... • Variable physical, functional, or cognitive disability.

(e) Service. For purposes of this sec- (3) If the veteran did not have active, tion: continuous service of 90 days or more. (1) The term Persian Gulf veteran (Authority: 38 U.S.C. 501(a)(1)) means a veteran who served on active military, naval, or air service in the [73 FR 54693, Sept. 23, 2008] Southwest Asia theater of operations §§ 3.319–3.320 [Reserved] during the Persian Gulf War. (2) The Southwest Asia theater of oper- CROSS REFERENCES: 1 ations refers to Iraq, Kuwait, Saudi Permanent and total disability ratings for Arabia, the neutral zone between Iraq pension purposes. See § 3.342. Special monthly dependency and indemnity compensation, and Saudi Arabia, Bahrain, Qatar, the death compensation and pension ratings. See United Arab Emirates, Oman, the Gulf § 3.351. Determination of permanent need for of Aden, the Gulf of Oman, the Persian regular aid and attendance and ‘‘perma- Gulf, the Arabian Sea, the Red Sea, nently bedridden.’’ See § 3.352. Conditions and the airspace above these locations. which determine permanent incapacity for self-support. See § 3.356. (Authority: 38 U.S.C. 1117, 1118) § 3.321 General rating considerations. [75 FR 59970, Sept. 29, 2010, as amended at 75 FR 61356, Oct. 5, 2010; 75 FR 61997, Oct. 7, 2010; (a) Use of rating schedule. The 1945 76 FR 41698, July 15, 2011; 76 FR 81836, Dec. 29, Schedule for Rating Disabilities will be 2011; 81 FR 71384, Oct. 17, 2016] used for evaluating the degree of disabilities in claims for disability com- § 3.318 Presumptive service connec- pensation, disability and death pen- tion for amyotrophic lateral scle- sion, and in eligibility determinations. rosis. The provisions contained in the rating (a) Except as provided in paragraph schedule will represent as far as can (b) of this section, the development of practicably be determined, the average amyotrophic lateral sclerosis mani- impairment in earning capacity in civil fested at any time after discharge or occupations resulting from disability. release from active military, naval, or (Authority: 38 U.S.C. 1155) air service is sufficient to establish service connection for that disease. (b) Extra-schedular ratings in unusual (b) Service connection will not be es- cases—(1) Disability compensation. Rat- tablished under this section: ings shall be based, as far as prac- (1) If there is affirmative evidence ticable, upon the average impairments that amyotrophic lateral sclerosis was of earning capacity with the additional not incurred during or aggravated by proviso that the Secretary shall from time to time readjust this schedule of active military, naval, or air service; ratings in accordance with experience. (2) If there is affirmative evidence To accord justice to the exceptional that amyotrophic lateral sclerosis is case where the schedular evaluation is due to the veteran’s own willful misconduct; or 1 39 FR 5315, Feb. 12, 1974.

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inadequate to rate a single service-con- § 3.322 Rating of disabilities aggra- nected disability, the Director of Com- vated by service. pensation Service or his or her delegate (a) Aggravation of preservice disability. is authorized to approve on the basis of In cases involving aggravation by ac- the criteria set forth in this paragraph tive service, the rating will reflect only (b), an extra-schedular evaluation com- the degree of disability over and above mensurate with the average impair- the degree of disability existing at the ment of earning capacity due exclu- time of entrance into active service, sively to the disability. The governing whether the particular condition was norm in these exceptional cases is a noted at the time of entrance into ac- finding by the Director of Compensa- tive service, or whether it is deter- tion Service or delegatee that applica- mined upon the evidence of record to tion of the regular schedular standards have existed at that time. It is nec- is impractical because the disability is so exceptional or unusual due to such essary to deduct from the present eval- related factors as marked interference uation the degree, if ascertainable, of with employment or frequent periods the disability existing at the time of of hospitalization. entrance into active service, in terms (2) Pension. Where the evidence of of the rating schedule except that if record establishes that an applicant for the disability is total (100 percent) no pension who is basically eligible fails deduction will be made. If the degree of to meet the disability requirements disability at the time of entrance into based on the percentage standards of service is not ascertainable in terms of the rating schedule but is found to be the schedule, no deduction will be unemployable by reason of his or her made. disability(ies), age, occupational back- (b) Aggravation of service-connected ground and other related factors, the disability. Where a disease or injury in- following are authorized to approve on curred in peacetime service is aggra- an extra-schedular basis a permanent vated during service in a period of war, and total disability rating for pension or conversely, where a disease or injury purposes: the Veterans Service Center incurred in service during a period of Manager or the Pension Management war is aggravated during peacetime Center Manager; or where regular service, the entire disability flowing schedular standards are met as of the from the disease or injury will be serv- date of the rating decision, the rating ice connected based on the war service. board. CROSS REFERENCES: Principles relating to (3) Effective dates. The effective date service connection. See § 3.303. Aggravation of these extra-schedular evaluations of preservice disability. See § 3.306. granting or increasing benefits will be in accordance with § 3.400(b)(1) and (2) [26 FR 1583, Feb. 24, 1961] as to original and supplemental claims § 3.323 Combined ratings. and in accordance with § 3.400(o) in claims for increased benefits. (a) Compensation—(1) Same type of (c) Advisory opinion. Cases in which service. When there are two or more application of the schedule is not un- service-connected compensable disabil- derstood or the propriety of an extra- ities a combined evaluation will be schedular rating is questionable may made following the tables and rules be submitted to Central Office for advi- prescribed in the 1945 Schedule for Rat- sory opinion. ing Disabilities. (2) Wartime and peacetime service. CROSS REFERENCES: Effective dates; dis- Evaluation of wartime and peacetime ability benefits. See § 3.400(b). Effective dates; increases. See § 3.400(o). service-connected compensable disabilities will be combined to provide for [26 FR 1583, Feb. 24, 1961, as amended at 29 the payment of wartime rates of com- FR 1463, Jan. 29, 1964; 37 FR 10442, May 23, pensation. (38 U.S.C. 1157) Effective 1972; 39 FR 5315, Feb. 12, 1974; 39 FR 32988, Sept. 13, 1974; 40 FR 57459, Dec. 10, 1975; 61 FR July 1, 1973, it is immaterial whether 20727, May 8, 1996; 74 FR 26959, June 5, 2009; 79 the disabilities are wartime or peace- FR 2100, Jan. 13, 2014; 82 FR 57835, Dec. 8, time service-connected since all dis- 2017; 84 FR 170, Jan. 18, 2019] abilities are compensable under 38

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U.S.C. 1114 and 1115 on and after that (b) Provided that it is otherwise ade- date. quate for rating purposes, any hospital (b) Pension—(1) Nonservice-connected report, or any examination report, disabilities. Evaluation of two or more from any government or private insti- nonservice-connected disabilities not tution may be accepted for rating a the result of the veteran’s own willful claim without further examination. misconduct will be combined as pro- However, monetary benefits to a vided in paragraph (a)(1) of this sec- former prisoner of war will not be de- tion. nied unless the claimant has been of- (2) Service-connected and nonservice- fered a complete physical examination connected disabilities. Evaluations for conducted at a Department of Veterans service-connected disabilities may be Affairs hospital or outpatient clinic. combined with evaluations for disabil- (c) Provided that it is otherwise ade- ities not shown to be service connected quate for rating purposes, a statement and not the result of the veteran’s own from a private physician may be ac- willful misconduct. cepted for rating a claim without fur- CROSS REFERENCES: ‘‘Willful misconduct.’’ ther examination. See § 3.1(n). Pension. See § 3.3. Line of duty (Authority: 38 U.S.C. 5107(a)) and misconduct. See § 3.301. Service connection for mental unsoundness in suicide. See CROSS REFERENCE: Failure to report for VA § 3.302. examination. See § 3.655. [26 FR 1583, Feb. 24, 1961, as amended at 38 [60 FR 52864, Oct. 11, 1995, as amended at 66 FR 21923, Aug. 14, 1973; 61 FR 20438, May 7, FR 45632, Aug. 29, 2001; 84 FR 170, Jan. 18, 1996] 2019]

§ 3.324 Multiple noncompensable serv- § 3.327 Reexaminations. ice-connected disabilities. (a) General. Reexaminations, includ- Whenever a veteran is suffering from ing periods of hospital observation, will two or more separate permanent serv- be requested whenever VA determines ice-connected disabilities of such char- there is a need to verify either the con- acter as clearly to interfere with nor- tinued existence or the current sever- mal employability, even though none ity of a disability. Generally, reexam- of the disabilities may be of compen- inations will be required if it is likely sable degree under the 1945 Schedule that a disability has improved, or if for Rating Disabilities the rating agen- evidence indicates there has been a ma- cy is authorized to apply a 10-percent terial change in a disability or that the rating, but not in combination with current rating may be incorrect. Indi- any other rating. viduals for whom reexaminations have been authorized and scheduled are re- [40 FR 56435, Dec. 3, 1975] quired to report for such reexamina- § 3.325 [Reserved] tions. Paragraphs (b) and (c) of this section provide general guidelines for § 3.326 Examinations. requesting reexaminations, but shall For purposes of this section, the term not be construed as limiting VA’s au- examination includes periods of hos- thority to request reexaminations, or pital observation when required by VA. periods of hospital observation, at any (a) Where there is a claim for dis- time in order to ensure that a disability compensation or pension but ability is accurately rated. medical evidence accompanying the claim is not adequate for rating pur- (Authority: 38 U.S.C. 501) poses, a Department of Veterans Af- (b) Compensation cases—(1) Scheduling fairs examination will be authorized. reexaminations. Assignment of a This paragraph applies to original and prestabilization rating requires reex- supplemental claims as well as claims amination within the second 6 months for increase submitted by a veteran, period following separation from serv- surviving spouse, parent, or child. Indi- ice. Following initial Department of viduals for whom an examination has Veterans Affairs examination, or any been scheduled are required to report scheduled future or other examination, for the examination. reexamination, if in order, will be

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scheduled within not less than 2 years not employees of VA. Opinions shall be nor more than 5 years within the judg- obtained from recognized medical ment of the rating board, unless an- schools, universities, clinics or medical other time period is elsewhere speci- institutions with which arrangements fied. for such opinions have been made, and (2) No periodic future examinations an appropriate official of the institu- will be requested. In service-connected tion shall select the individual ex- cases, no periodic reexamination will pert(s) to render an opinion. be scheduled: (i) When the disability is (b) Requests. A request for an inde- established as static; pendent medical opinion in conjunc- (ii) When the findings and symptoms tion with a claim pending before VA are shown by examinations scheduled may be initiated by the office having in paragraph (b)(2)(i) of this section or jurisdiction over the claim, by the other examinations and hospital re- claimant, or by his or her duly ap- ports to have persisted without mate- pointed representative. The request rial improvement for a period of 5 must be submitted in writing and must years or more; set forth in detail the reasons why the (iii) Where the disability from dis- opinion is necessary. All such requests ease is permanent in character and of shall be submitted through the Vet- such nature that there is no likelihood erans Service Center Manager or Pen- of improvement; (iv) In cases of veterans over 55 years sion Management Center Manager of of age, except under unusual cir- the office having jurisdiction over the cumstances; claim, and those requests which in the (v) When the rating is a prescribed judgment of the Veterans Service Cen- scheduled minimum rating; or ter Manager or Pension Management (vi) Where a combined disability Center Manager merit consideration evaluation would not be affected if the shall be referred to the Compensation future examination should result in re- Service or the Pension and Fiduciary duced evaluation for one or more con- Service for approval. ditions. (c) Approval. (1) Requests for inde- (c) Pension cases. In nonservice-con- pendent medical opinions shall be ap- nected cases in which the permanent proved when one of the following condi- total disability has been confirmed by tions is met: reexamination or by the history of the (i) The director of each Service from case, or with obviously static disabil- which a benefit is sought, or his or her ities, further reexaminations will not designee, determines that the issue generally be requested. In other cases under consideration poses a medical further examination will not be re- problem of such complexity or con- quested routinely and will be accom- troversy as to justify solicitation of an plished only if considered necessary independent medical opinion; or based upon the particular facts of the (ii) The independent medical opinion individual case. In the cases of vet- is required to fulfill the instructions erans over 55 years of age, reexamina- contained in a remand order from the tion will be requested only under un- Board of Veterans’ Appeals. usual circumstances. (2) A determination that an inde- CROSS REFERENCE: Failure to report for VA pendent medical opinion is not war- examination. See § 3.655. ranted may be contested only as part [26 FR 1585, Feb. 24, 1961, as amended at 30 of an appeal to the Board of Veterans’ FR 11855, Sept. 16, 1965; 36 FR 14467, Aug. 6, Appeals on the merits of the decision 1971; 55 FR 49521, Nov. 29, 1990; 60 FR 27409, rendered on the primary issue by VA. May 24, 1995] (d) Notification. The Compensation Service or the Pension and Fiduciary § 3.328 lndependent medical opinions. Service shall notify the claimant when (a) General. When warranted by the the request for an independent medical medical complexity or controversy in- opinion has been approved with regard volved in a pending claim, an advisory to his or her claim and shall furnish medical opinion may be obtained from the claimant with a copy of the opinion one or more medical experts who are when it is received. If, in the judgment

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of the Secretary, disclosure of the inde- where the requirements of paragraph pendent medical opinion would be 16, page 5 of the rating schedule are harmful to the physical or mental present or where, in pension cases, the health of the claimant, disclosure shall requirements of paragraph 17, page 5 of be subject to the special procedures set the schedule are met. forth in § 1.577 of this chapter. (3) Ratings of total disability on history. (Authority: 38 U.S.C. 5109, 5701(b)(1); 5 U.S.C. In the case of disabilities which have 552a(f)(3)) undergone some recent improvement, a [55 FR 18602, May 3, 1990, as amended at 79 rating of total disability may be made, FR 2100, Jan. 13, 2014; 84 FR 170, Jan. 18, 2019] provided: (i) That the disability must in the § 3.329 [Reserved] past have been of sufficient severity to warrant a total disability rating; § 3.330 Resumption of rating when vet- (ii) That it must have required ex- eran subsequently reports for De- partment of Veterans Affairs exam- tended, continuous, or intermittent ination. hospitalization, or have produced total industrial incapacity for at least 1 Such ratings will be governed by the year, or be subject to recurring, severe, provisions of § 3.158, ‘‘Abandoned Claims,’’ and § 3.655, ‘‘Failure to report frequent, or prolonged exacerbations; for Department of Veterans Affairs ex- and amination.’’ The period following the (iii) That it must be the opinion of termination or reduction for which the rating agency that despite the re- benefits are precluded by the cited reg- cent improvement of the physical con- ulations will be stated in the rating. If dition, the veteran will be unable to ef- the evidence is insufficient to evaluate fect an adjustment into a substantially disability during any period following gainful occupation. Due consideration the termination or reduction for which will be given to the frequency and du- payments are not otherwise precluded, ration of totally incapacitating exacer- the rating will contain a notation read- bations since incurrence of the original ing ‘‘Evidence insufficient to evaluate disease or injury, and to periods of hos- from lllll to llllll. pitalization for treatment in determining whether the average person CROSS REFERENCE: Failure to report for De- could have reestablished himself or partment of Veterans Affairs examination. See § 3.655. herself in a substantially gainful occupation. [29 FR 3623, Mar. 21, 1964] (b) Permanent total disability. Perma- §§ 3.331–3.339 [Reserved] nence of total disability will be taken to exist when such impairment is rea- § 3.340 Total and permanent total rat- sonably certain to continue throughout ings and unemployability. the life of the disabled person. The per- (a) Total disability ratings—(1) General. manent loss or loss of use of both Total disability will be considered to hands, or of both feet, or of one hand exist when there is present any impair- and one foot, or of the sight of both ment of mind or body which is suffi- eyes, or becoming permanently help- cient to render it impossible for the av- less or bedridden constitutes perma- erage person to follow a substantially nent total disability. Diseases and inju- gainful occupation. Total disability ries of long standing which are actu- may or may not be permanent. Total ally totally incapacitating will be re- ratings will not be assigned, generally, garded as permanently and totally dis- for temporary exacerbations or acute abling when the probability of perma- infectious diseases except where spe- nent improvement under treatment is cifically prescribed by the schedule. remote. Permanent total disability rat- (2) Schedule for rating disabilities. ings may not be granted as a result of Total ratings are authorized for any any incapacity from acute infectious disability or combination of disabil- disease, accident, or injury, unless ities for which the Schedule for Rating there is present one of the recognized Disabilities prescribes a 100 percent combinations or permanent loss of use evaluation or, with less disability, of extremities or sight, or the person is

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in the strict sense permanently help- tional goal by the veteran is reason- less or bedridden, or when it is reasonably feasible. ably certain that a subsidence of the (Authority: 38 U.S.C. 1163) acute or temporary symptoms will be followed by irreducible totality of dis- [46 FR 47541, Sept. 29, 1981, as amended at 50 ability by way of residuals. The age of FR 52774, Dec. 26, 1985; 55 FR 17271, Apr. 24, the disabled person may be considered 1990l; 58 FR 32445, June 10, 1993; 68 FR 34542, in determining permanence. June 10, 2003] (c) Insurance ratings. A rating of per- § 3.342 Permanent and total disability manent and total disability for insur- ratings for pension purposes. ance purposes will have no effect on ratings for compensation or pension. (a) General. Permanent total disability ratings for pension purposes are [26 FR 1585, Feb. 24, 1961, as amended at 46 authorized for disabling conditions not FR 47541, Sept. 29, 1981] the result of the veteran’s own willful misconduct whether or not they are § 3.341 Total disability ratings for com- service connected. pensation purposes. (a) General. Subject to the limitation (Authority: 38 U.S.C. 1502(a)) in paragraph (b) of this section, total- disability compensation ratings may be (b) Criteria. In addition to the criteria assigned under the provisions of § 3.340. for determining total disability and However, if the total rating is based on permanency of total disability con- a disability or combination of disabil- tained in § 3.340, the following special ities for which the Schedule for Rating considerations apply in pension cases: Disabilities provides an evaluation of (1) Permanent total disability pen- less than 100 percent, it must be deter- sion ratings will be authorized for con- mined that the service-connected dis- genital, developmental, hereditary or abilities are sufficient to produce familial conditions, provided the other unemployability without regard to ad- requirements for entitlement are met. vancing age. (2) The permanence of total disability will be established as of the ear- (Authority: 38 U.S.C. 1155) liest date consistent with the evidence in the case. Active pulmonary tuber- (b) Incarcerated veterans. A total rat- culosis not otherwise established as ing for compensation purposes based on permanently and totally disabling will individual unemployability which be presumed so after 6 months’ hos- would first become effective while a pitalization without improvement. The veteran is incarcerated in a Federal, same principle may be applied with State or local penal institution for con- other types of disabilities requiring viction of a felony, shall not be as- hospitalization for indefinite periods. signed during such period of incarcer- The need for hospitalization for periods ation. However, where a rating for indi- shorter or longer than 6 months may be vidual unemployability exists prior to a proper basis for determining perma- incarceration for a felony and routine nence. Where, in application of this review is required, the case will be re- principle, it is necessary to employ a considered to determine if continued waiting period to determine perma- eligibility for such rating exists. nence of totality of disability and a report received at the end of such period (Authority: 38 U.S.C. 5313(c)) shows the veteran’s condition is unim- (c) Program for vocational rehabilita- proved, permanence may be established tion. Each time a veteran is rated to- as of the date of entrance into the hos- tally disabled on the basis of individual pital. Similarly, when active pul- unemployability during the period be- monary tuberculosis is improved after ginning after January 31, 1985, the Vo- 6 months’ hospitalization but still di- cational Rehabilitation and Employ- agnosed as active after 12 months’ hos- ment Service will be notified so that an pitalization permanence will also be es- evaluation may be offered to determine tablished as of the date of entrance whether the achievement of a voca- into the hospital. In other cases the

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rating will be effective the date the not later than one year after eligibility evidence establishes permanence. to counseling under § 21.6040(b)(1) of (3) Special consideration must be this chapter expires, the veteran’s per- given the question of permanence in manent and total evaluation for pen- the case of veterans under 40 years of sion purposes shall not be terminated age. For such veterans, permanence of by reason of the veteran’s capacity to total disability requires a finding that engage in such employment until the the end result of treatment and adjust- veteran has maintained that employment to residual handicaps (rehabilita- ment for a period of not less than 12 tion) will be permanent disability of consecutive months. the required degree precluding more than marginal employment. Severe dis- (Authority: 38 U.S.C. 1524(c)) eases and injuries, including multiple [26 FR 1586, Feb. 24, 1961, as amended at 26 fractures or the amputation of a single FR 9674, Oct. 13, 1961; 29 FR 3624, Mar. 21, extremity, should not be taken to es- 1964; 39 FR 14944, Apr. 18, 1974; 46 FR 47541, tablish permanent and total disability Sept. 29, 1981; 50 FR 52775, Dec. 26, 1985; 53 FR until it is shown that the veteran after 23235, June 21, 1988; 55 FR 17271, Apr. 24, 1990; treatment and convalescence, has been 56 FR 25044, June 3, 1991; 56 FR 65851, Dec. 19, unable to secure or follow employment 1991; 58 FR 32445, June 10, 1993] because of the disability and through § 3.343 Continuance of total disability no fault of the veteran. ratings. (4) The following shall not be considered as evidence of employability: (a) General. Total disability ratings, (i) Employment as a member-em- when warranted by the severity of the ployer or similar employment obtained condition and not granted purely be- only in competition with disabled per- cause of hospital, surgical, or home sons. treatment, or individual (ii) Participation in, or the receipt of unemployability will not be reduced, in a distribution of funds as a result of the absence of clear error, without ex- participation in, a therapeutic or reha- amination showing material improve- bilitation activity under 38 U.S.C. 1718. ment in physical or mental condition. Examination reports showing material (Authority: 38 U.S.C. 1718(f)) improvement must be evaluated in (5) The authority granted the Sec- conjunction with all the facts of retary under 38 U.S.C. 1502(a)(2) to clas- record, and consideration must be sify as permanent and total those dis- given particularly to whether the vet- eases and disorders, the nature and ex- eran attained improvement under the tent of which, in the Secretary judg- ordinary conditions of life, i.e., while ment, will justify such determination, working or actively seeking work or will be exercised under § 3.321(b). whether the symptoms have been (c) Temporary program of vocational re- brought under control by prolonged habilitation training for certain pension rest, or generally, by following a regi- recipients. (1) When a veteran under age men which precludes work, and, if the 45 is awarded disability pension during latter, reduction from total disability the period beginning on February 1, ratings will not be considered pending 1985, and ending on December 31, 1995, reexamination after a period of em- the Vocational Rehabilitation and Em- ployment (3 to 6 months). ployment Division will be notified so (b) Tuberculosis; compensation. In serv- that an evaluation may be made, as ice-connected cases, evaluations for ac- provided in § 21.6050, to determine that tive or inactive tuberculosis will be veteran’s potential for rehabilitation. governed by the Schedule for Rating (2) If a veteran secures employment Disabilities (part 4 of this chapter). within the scope of a vocational goal Where in the opinion of the rating identified in his or her individualized board the veteran at the expiration of written vocational rehabilitation plan, the period during which a total rating or in a related field which requires rea- is provided will not be able to maintain sonably developed skills and the use of inactivity of the disease process under some or all of the training or services the ordinary conditions of life, the case furnished the veteran under such plan, will be submitted under § 3.321.

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(c) Individual unemployability. (1) In § 3.344 Stabilization of disability eval- reducing a rating of 100 percent serv- uations. ice-connected disability based on indi- (a) Examination reports indicating im- vidual unemployability, the provisions provement. Rating agencies will handle of § 3.105(e) are for application but cau- cases affected by change of medical tion must be exercised in such a deter- findings or diagnosis, so as to produce mination that actual employability is the greatest degree of stability of dis- established by clear and convincing ability evaluations consistent with the evidence. When in such a case the vet- laws and Department of Veterans Af- eran is undergoing vocational rehabili- fairs regulations governing disability tation, education or training, the rat- compensation and pension. It is essen- ing will not be reduced by reason there- tial that the entire record of examina- of unless there is received evidence of tions and the medical-industrial his- marked improvement or recovery in tory be reviewed to ascertain whether the recent examination is full and com- physical or mental conditions or of em- plete, including all special examina- ployment progress, income earned, and tions indicated as a result of general prospects of economic rehabilitation, examination and the entire case his- which demonstrates affirmatively the tory. This applies to treatment of veteran’s capacity to pursue the voca- intercurrent diseases and exacer- tion or occupation for which the train- bations, including hospital reports, ing is intended to qualify him or her, bedside examinations, examinations by or unless the physical or mental de- designated physicians, and examina- mands of the course are obviously in- tions in the absence of, or without tak- compatible with total disability. Nei- ing full advantage of, laboratory facili- ther participation in, nor the receipt of ties and the cooperation of specialists remuneration as a result of participa- in related lines. Examinations less full tion in, a therapeutic or rehabilitation and complete than those on which pay- activity under 38 U.S.C. 1718 shall be ments were authorized or continued considered evidence of employability. will not be used as a basis of reduction. Ratings on account of diseases subject (Authority: 38 U.S.C. 1718(f)) to temporary or episodic improvement, e.g., manic depressive or other psy- (2) If a veteran with a total disability chotic reaction, epilepsy, psycho- rating for compensation purposes based neurotic reaction, arteriosclerotic on individual unemployability begins heart disease, bronchial asthma, gas- to engage in a substantially gainful tric or duodenal ulcer, many skin dis- occuption during the period beginning eases, etc., will not be reduced on any after January 1, 1985, the veteran’s rat- one examination, except in those in- ing may not be reduced solely on the stances where all the evidence of basis of having secured and followed record clearly warrants the conclusion such substantially gainful occupation that sustained improvement has been unless the veteran maintains the occu- demonstrated. Ratings on account of pation for a period of 12 consecutive diseases which become comparatively months. For purposes of this subpara- symptom free (findings absent) after graph, temporary interruptions in em- prolonged rest, e.g. residuals of phle- ployment which are of short duration bitis, arteriosclerotic heart disease, shall not be considered breaks in other- etc., will not be reduced on examina- wise continuous employment. tions reflecting the results of bed rest. Moreover, though material improve- (Authority: 38 U.S.C. 1163(a)) ment in the physical or mental condition is clearly reflected the rating CROSS REFERENCE: Protection, total disability. See § 3.951(b). agency will consider whether the evidence makes it reasonably certain that [33 FR 16273, Nov. 6, 1968, as amended at 39 the improvement will be maintained FR 14944, Apr. 29, 1974; 50 FR 52775, Dec. 26, under the ordinary conditions of life. 1985; 53 FR 23236, June 21, 1988; 55 FR 17271, When syphilis of the central nervous Apr. 24, 1990; 57 FR 10426, Mar. 26, 1992; 58 FR system or alcoholic deterioration is di- 32445, June 10, 1993; 58 FR 46865, Sept. 3, 1993] agnosed following a long prior history

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of psychosis, psychoneurosis, epilepsy, one foot, both buttocks, one or more or the like, it is rarely possible to ex- creative organs, blindness of one eye clude persistence, in masked form, of having only light perception, deafness the preceding innocently acquired of both ears, having absence of air and manifestations. Rating boards encoun- bone conduction, complete organic tering a change of diagnosis will exer- aphonia with constant inability to cise caution in the determination as to communicate by speech or, in the case whether a change in diagnosis rep- of a woman veteran, loss of 25% or resents no more than a progression of more of tissue from a single breast or an earlier diagnosis, an error in prior both breasts in combination (including diagnosis or possibly a disease entity loss by mastectomy or partial mastec- independent of the service-connected tomy), or following receipt of radiation disability. When the new diagnosis re- treatment of breast tissue. This special flects mental deficiency or personality compensation is payable in addition to disorder only, the possibility of only the basic rate of compensation other- temporary remission of a super-im- wise payable on the basis of degree of posed psychiatric disease will be borne disability, provided that the combined in mind. rate of compensation does not exceed (b) Doubtful cases. If doubt remains, the monthly rate set forth in 38 U.S.C. after according due consideration to all 1114(l) when authorized in conjunction the evidence developed by the several with any of the provisions of 38 U.S.C. items discussed in paragraph (a) of this 1114 (a) through (j) or (s). When there is section, the rating agency will con- entitlement under 38 U.S.C. 1114 (l) tinue the rating in effect, citing the through (n) or an intermediate rate former diagnosis with the new diag- under (p) such additional allowance is nosis in parentheses, and following the payable for each such anatomical loss appropriate code there will be added or loss of use existing in addition to the reference ‘‘Rating continued pend- the requirements for the basic rates, ing reexamination lll months from provided the total does not exceed the this date, § 3.344.’’ The rating agency monthly rate set forth in 38 U.S.C. will determine on the basis of the facts 1114(o). The limitations on the max- in each individual case whether 18, 24 imum compensation payable under this or 30 months will be allowed to elapse paragraph are independent of and do before the reexamination will be made. not preclude payment of additional (c) Disabilities which are likely to im- compensation for dependents under 38 prove. The provisions of paragraphs (a) U.S.C. 1115, or the special allowance for and (b) of this section apply to ratings aid and attendance provided by 38 which have continued for long periods U.S.C. 1114(r). at the same level (5 years or more). (1) Creative organ. (i) Loss of a cre- They do not apply to disabilities which ative organ will be shown by acquired have not become stabilized and are absence of one or both testicles (other likely to improve. Reexaminations dis- than undescended testicles) or ovaries closing improvement, physical or men- or other creative organ. Loss of use of tal, in these disabilities will warrant one testicle will be established when reduction in rating. examination by a board finds that: [26 FR 1586, Feb. 24, 1961; 58 FR 53660, Oct. 18, (a) The diameters of the affected tes- 1993] ticle are reduced to one-third of the corresponding diameters of the paired RATINGS FOR SPECIAL PURPOSES normal testicle, or (b) The diameters of the affected tes- § 3.350 Special monthly compensation ticle are reduced to one-half or less of ratings. the corresponding normal testicle and The rates of special monthly com- there is alteration of consistency so pensation stated in this section are that the affected testicle is consider- those provided under 38 U.S.C. 1114. ably harder or softer than the cor- (a) Ratings under 38 U.S.C. 1114(k). responding normal testicle; or Special monthly compensation under (c) If neither of the conditions (a) or 38 U.S.C. 1114(k) is payable for each an- (b) is met, when a biopsy, rec- atomical loss or loss of use of one hand, ommended by a board including a

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genitourologist and accepted by the plished equally well by an amputation veteran, establishes the absence of stump with prosthesis; for example: spermatozoa. (a) Extremely unfavorable complete (ii) When loss or loss of use of a cre- ankylosis of the knee, or complete an- ative organ resulted from wounds or kylosis of two major joints of an ex- other trauma sustained in service, or tremity, or shortening of the lower ex- resulted from operations in service for tremity of 31⁄2 inches or more, will con- the relief of other conditions, the cre- stitute loss of use of the hand or foot ative organ becoming incidentally in- involved. volved, the benefit may be granted. (b) Complete paralysis of the external (iii) Loss or loss of use traceable to popliteal nerve (common peroneal) and an elective operation performed subse- consequent footdrop, accompanied by quent to service, will not establish en- characteristic organic changes includ- titlement to the benefit. If, however, ing trophic and circulatory disturb- the operation after discharge was re- ances and other concomitants confirm- quired for the correction of a specific atory of complete paralysis of this injury caused by a preceding operation nerve, will be taken as loss of use of in service, it will support authorization the foot. of the benefit. When the existence of (3) Both buttocks. (i) Loss of use of disability is established meeting the both buttocks shall be deemed to exist above requirements for nonfunctioning testicle due to operation after service, when there is severe damage by disease resulting in loss of use, the benefit may or injury to muscle group XVII, bilat- be granted even though the operation eral, (diagnostic code 5317) and addi- is one of election. An operation is not tional disability making it impossible considered to be one of election where for the disabled person, without assist- it is advised on sound medical judg- ance, to rise from a seated position and ment for the relief of a pathological from a stooped position (fingers to toes condition or to prevent possible future position) and to maintain postural sta- pathological consequences. bility (the pelvis upon head of femur). (iv) Atrophy resulting from mumps The assistance may be done by the per- followed by orchitis in service is serv- son’s own hands or arms, and, in the ice connected. Since atrophy is usually matter of postural stability, by a spe- perceptible within 1 to 6 months after cial appliance. infection subsides, an examination more than 6 months after the subsid- (Authority: 38 U.S.C. 1114(k)) ence of orchitis demonstrating a nor- (ii) Special monthly compensation mal genitourinary system will be con- for loss or loss of use of both lower ex- sidered in determining rebuttal of serv- tremities (38 U.S.C. 1114(l) through (n)) ice incurrence of atrophy later dem- will not preclude additional compensa- onstrated. Mumps not followed by tion under 38 U.S.C. 1114(k) for loss of orchitis in service will not suffice as use of both buttocks where appropriate the antecedent cause of subsequent atrophy for the purpose of authorizing tests clearly substantiate that there is the benefit. such additional loss. (2) Foot and hand. (i) Loss of use of a (4) Eye. Loss of use or blindness of hand or a foot will be held to exist one eye, having only light perception, when no effective function remains will be held to exist when there is in- other than that which would be equally ability to recognize test letters at 1 well served by an amputation stump at foot and when further examination of the site of election below elbow or knee the eye reveals that perception of ob- with use of a suitable prosthetic appli- jects, hand movements, or counting ance. The determination will be made fingers cannot be accomplished at 3 on the basis of the actual remaining feet. Lesser extents of vision, particu- function, whether the acts of grasping, larly perception of objects, hand move- manipulation, etc., in the case of the ments, or counting fingers at distances hand, or of balance, propulsion, etc., in less than 3 feet is considered of neg- the case of the foot, could be accom- ligible utility.

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(5) Deafness. Deafness of both ears, vided by 38 U.S.C. 1114(m) is payable for having absence of air and bone conduc- any of the following conditions: tion will be held to exist where exam- (i) Anatomical loss or loss of use of ination in a Department of Veterans both hands; Affairs authorized audiology clinic (ii) Anatomical loss or loss of use of under current testing criteria shows bi- both legs at a level, or with complica- lateral hearing loss is equal to or tions, preventing natural knee action greater than the minimum bilateral with prosthesis in place; hearing loss required for a maximum (iii) Anatomical loss or loss of use of rating evaluation under the rating schedule. one arm at a level, or with complications, preventing natural elbow action (Authority: Pub. L. 88–20) with prosthesis in place with anatomical loss or loss of use of one leg at a (6) Aphonia. Complete organic apho- level, or with complications, pre- nia will be held to exist where there is venting natural knee action with pros- a disability of the organs of speech thesis in place; which constantly precludes communication by speech. (iv) Blindness in both eyes having only light perception; (Authority: Pub. L. 88–22) (v) Blindness in both eyes leaving the veteran so helpless as to be in need of (b) Ratings under 38 U.S.C. 1114(l). The regular aid and attendance. special monthly compensation provided by 38 U.S.C. 1114(l) is payable for (2) Natural elbow or knee action. In de- anatomical loss or loss of use of both termining whether there is natural feet, one hand and one foot, blindness elbow or knee action with prosthesis in in both eyes with visual acuity of 5/200 place, consideration will be based on or less or being permanently bedridden whether use of the proper prosthetic or so helpless as to be in need of reg- appliance requires natural use of the ular aid and attendance. joint, or whether necessary motion is (1) Extremities. The criteria for loss otherwise controlled, so that the mus- and loss of use of an extremity con- cles affecting joint motion, if not al- tained in paragraph (a)(2) of this sec- ready atrophied, will become so. If tion are applicable. there is no movement in the joint, as (2) Eyes, bilateral. 5/200 visual acuity in ankylosis or complete paralysis, use or less bilaterally qualifies for entitle- of prosthesis is not to be expected, and ment under 38 U.S.C. 1114(l). However, the determination will be as though evaluation of 5/200 based on acuity in there were one in place. excess of that degree but less than 10/ (3) Eyes, bilateral. With visual acuity 200 (§ 4.83 of this chapter), does not 5/200 or less or the vision field reduced qualify. Concentric contraction of the to 5 degree concentric contraction in field of vision beyond 5 degrees in both both eyes, entitlement on account of eyes is the equivalent of 5/200 visual need for regular aid and attendance acuity. will be determined on the facts in the (3) Need for aid and attendance. The individual case. criteria for determining that a veteran is so helpless as to be in need of regular (d) Ratings under 38 U.S.C. 1114(n). aid and attendance are contained in The special monthly compensation pro- § 3.352(a). vided by 38 U.S.C. 1114(n) is payable for (4) Permanently bedridden. The cri- any of the conditions which follow: teria for rating are contained in Amputation is a prerequisite except for § 3.352(a). Where possible, determina- loss of use of both arms and blindness tions should be on the basis of perma- without light perception in both eyes. nently bedridden rather than for need If a prosthesis cannot be worn at the of aid and attendance (except where 38 present level of amputation but could U.S.C. 1114(r) is involved) to avoid re- be applied if there were a reamputation duction during hospitalization where at a higher level, the requirements of aid and attendance is provided in kind. this paragraph are not met; instead, (c) Ratings under 38 U.S.C. 1114(m). (1) consideration will be given to loss of The special monthly compensation pro- natural elbow or knee action.

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(1) Anatomical loss or loss of use of maximum rate on account of helpless- both arms at a level or with complica- ness requiring regular aid and attend- tions, preventing natural elbow action ance, the latter must be based on need with prosthesis in place; resulting from pathology other than (2) Anatomical loss of both legs so that of the extremities. If the loss or near the hip as to prevent use of a pros- loss of use of two extremities or being thetic appliance; permanently bedridden leaves the per- (3) Anatomical loss of one arm so son helpless, increase is not in order on near the shoulder as to prevent use of account of this helplessness. Under no a prosthetic appliance with anatomical circumstances will the combination of loss of one leg so near the hip as to pre- ‘‘being permanently bedridden’’ and vent use of a prosthetic appliance; ‘‘being so helpless as to require regular (4) Anatomical loss of both eyes or aid and attendance’’ without separate blindness without light perception in and distinct anatomical loss, or loss of both eyes. use, of two extremities, or blindness, be (e) Ratings under 38 U.S.C. 1114 (o). (1) taken as entitling to the maximum The special monthly compensation pro- benefit. The fact, however, that two vided by 38 U.S.C. 1114(o) is payable for separate and distinct entitling disabil- any of the following conditions: ities, such as anatomical loss, or loss of (i) Anatomical loss of both arms so use of both hands and both feet, result near the shoulder as to prevent use of from a common etiological agent, for a prosthetic appliance; example, one injury or rheumatoid ar- (ii) Conditions entitling to two or thritis, will not preclude maximum en- more of the rates (no condition being titlement. considered twice) provided in 38 U.S.C. (4) Helplessness. The maximum rate, 1114(l) through (n); as a result of including helplessness as (iii) Bilateral deafness rated at 60 one of the entitling multiple disabil- percent or more disabling (and the ities, is intended to cover, in addition hearing impairment in either one or to obvious losses and blindness, condi- both ears is service connected) in com- tions such as the loss of use of two ex- bination with service-connected blind- tremities with absolute deafness and ness with bilateral visual acuity 20/200 nearly total blindness or with severe or less. multiple injuries producing total dis- (iv) Service-connected total deafness ability outside the useless extremities, in one ear or bilateral deafness rated at these conditions being construed as 40 percent or more disabling (and the loss of use of two extremities and help- hearing impairment in either one of lessness. both ears is service-connected) in com- (f) Intermediate or next higher rate. An bination with service-connected blind- intermediate rate authorized by this ness of both eyes having only light per- paragraph shall be established at the ception or less. arithmetic mean, rounded to the near- (2) Paraplegia. Paralysis of both lower est dollar, between the two rates con- extremities together with loss of anal cerned. and bladder sphincter control will entitle to the maximum rate under 38 (Authority: 38 U.S.C. 1114 (p)) U.S.C. 1114(o), through the combination (1) Extremities. (i) Anatomical loss or of loss of use of both legs and helpless- loss of use of one foot with anatomical ness. The requirement of loss of anal loss or loss of use of one leg at a level, and bladder sphincter control is met or with complications preventing nat- even though incontinence has been ural knee action with prosthesis in overcome under a strict regimen of replace, shall entitle to the rate between habilitation of bowel and bladder train- 38 U.S.C. 1114(l) and (m). ing and other auxiliary measures. (ii) Anatomical loss or loss of use of (3) Combinations. Determinations one foot with anatomical loss of one must be based upon separate and dis- leg so near the hip as to prevent use of tinct disabilities. This requires, for ex- prosthetic appliance shall entitle to ample, that where a veteran who had the rate under 38 U.S.C. 1114(m). suffered the loss or loss of use of two (iii) Anatomical loss or loss of use of extremities is being considered for the one foot with anatomical loss or loss of

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use of one arm at a level, or with com- (xii) Anatomical loss or loss of use of plications, preventing natural elbow one arm at a level, or with complica- action with prosthesis in place, shall tions, preventing natural elbow action entitle to the rate between 38 U.S.C. with prosthesis in place with anatom- 1114(l) and (m). ical loss of one arm so near the shoul- (iv) Anatomical loss or loss of use of der as to prevent use of a prosthetic ap- one foot with anatomical loss or loss of pliance, shall entitle to the rate be- use of one arm so near the shoulder as tween 38 U.S.C. 1114 (n) and (o). to prevent use of a prosthetic appliance (2) Eyes, bilateral, and blindness in shall entitle to the rate under 38 U.S.C. connection with deafness and/or loss or 1114(m). loss of use of a hand or foot. (v) Anatomical loss or loss of use of (i) Blindness of one eye with 5/200 vis- one leg at a level, or with complica- ual acuity or less and blindness of the tions, preventing natural knee action other eye having only light perception with prosthesis in place with anatom- will entitle to the rate between 38 ical loss of one leg so near the hip as to U.S.C. 1114 (l) and (m). prevent use of a prosthetic appliance, (ii) Blindness of one eye with 5/200 shall entitle to the rate between 38 visual acuity or less and anatomical U.S.C. 1114(m) and (n). loss of, or blindness having no light (vi) Anatomical loss or loss of use of perception in the other eye, will entitle one leg at a level, or with complica- to a rate equal to 38 U.S.C. 1114(m). tions, preventing natural knee action (iii) Blindness of one eye having only with prosthesis in place with anatom- light perception and anatomical loss ical loss or loss of use of one hand, of, or blindness having no light percep- shall entitle to the rate between 38 tion in the other eye, will entitle to a U.S.C. 1114 (l) and (m). rate between 38 U.S.C. 1114 (m) and (n). (vii) Anatomical loss or loss of use of (iv) Blindness in both eyes with vis- one leg at a level, or with complica- ual acuity of 5/200 or less, or blindness tions, preventing natural knee action in both eyes rated under subparagraph with prosthesis in place with anatom- (2) (i) or (ii) of this paragraph, when ac- ical loss of one arm so near the shoul- companied by service-connected total der as to prevent use of a prosthetic ap- deafness in one ear, will afford entitle- pliance, shall entitle to the rate be- ment to the next higher intermediate tween 38 U.S.C. 1114 (m) and (n). rate of if the veteran is already enti- (viii) Anatomical loss of one leg so tled to an intermediate rate, to the near the hip as to prevent use of a pros- next higher statutory rate under 38 thetic appliance with anatomical loss U.S.C. 1114, but in no event higher than or loss of use of one hand shall entitle the rate for (o). to the rate under 38 U.S.C. 1114(m). (v) Blindness in both eyes having (ix) Anatomical loss of one leg so only light perception or less, or rated near the hip as to prevent use of a pros- under subparagraph (2)(iii) of this para- thetic appliance with anatomical loss graph, when accompanied by bilateral or loss of use of one arm at a level, or deafness (and the hearing impairment with complications, preventing natural in either one or both ears is service- elbow action with prosthesis in place, connected) rated at 10 or 20 percent dis- shall entitle to the rate between 38 abling, will afford entitlement to the U.S.C. 1114 (m) and (n). next higher intermediate rate, or if the (x) Anatomical loss or loss of use of veteran is already entitled to an inter- one hand with anatomical loss or loss mediate rate, to the next higher statu- of use of one arm at a level, or with tory rate under 38 U.S.C. 1114, but in no complications, preventing natural event higher than the rate for (o). elbow action with prosthesis in place, shall entitle to the rate between 38 (Authority: Sec. 112, Pub. L. 98–223) U.S.C. 1114 (m) and (n). (vi) Blindness in both eyes rated (xi) Anatomical loss or loss of use of under 38 U.S.C. 1114 (l), (m) or (n), or one hand with anatomical loss of one rated under subparagraphs (2)(i), (ii) or arm so near the shoulder as to prevent (iii) of this paragraph, when accom- use of a prosthetic appliance shall enti- panied by bilaterial deafness rated at tle to the rate under 38 U.S.C. 1114(n). no less than 30 percent, and the hearing

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impairment in one or both ears is serv- under 38 U.S.C. 1114, but not above the ice-connected, will afford entitlement (o) rate. In the application of this sub- to the next higher statutory rate under paragraph the disability or disabilities 38 U.S.C. 1114, or if the veteran is al- independently ratable at 50 percent or ready entitled to an intermediate rate, more must be separate and distinct and to the next higher intermediate rate, involve different anatomical segments but in no event higher than the rate for or bodily systems from the conditions (o). establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the inter- (Authority: 38 U.S.C. 1114(p)) mediate rate provisions outlined above. (vii) Blindness in both eyes rated The graduated ratings for arrested tu- under 38 U.S.C. 1114 (l), (m), or (n), or berculosis will not be utilized in this under the intermediate or next higher connection, but the permanent residu- rate provisions of this subparagraph, als of tuberculosis may be utilized. when accompanied by: (4) Additional independent 100 percent (A) Service-connected loss or loss of ratings. In addition to the statutory use of one hand, will afford entitlement rates payable under 38 U.S.C. 1114 (l) to the next higher statutory rate under through (n) and the intermediate or 38 U.S.C. 1114 or, if the veteran is al- next higher rate provisions outlined ready entitled to an intermediate rate, above additional single permanent dis- to the next higher intermediate rate, ability independently ratable at 100 but in no event higher than the rate for percent apart from any consideration (o); or of individual unemployability will af- (B) Service-connected loss or loss of ford entitlement to the next higher use of one foot which by itself or in statutory rate under 38 U.S.C. 1114 or if combination with another compensable already entitled to an intermediate disability would be ratable at 50 per- rate to the next higher intermediate cent or more, will afford entitlement rate, but in no event higher than the to the next higher statutory rate under rate for (o). In the application of this 38 U.S.C. 1114 or, if the veteran is al- subparagraph the single permanent dis- ready entitled to an intermediate rate, ability independently ratable at 100 to the next higher intermediate rate, percent must be separate and distinct but in no event higher than the rate for and involve different anatomical seg- (o); or ments or bodily systems from the con- (C) Service-connected loss or loss of ditions establishing entitlement under use of one foot which is ratable at less 38 U.S.C. 1114 (l) through (n) or the in- than 50 percent and which is the only termediate rate provisions outlined compensable disability other than bi- above. lateral blindness, will afford entitle- (i) Where the multiple loss or loss of ment to the next higher intermediate use entitlement to a statutory or inter- rate or, if the veteran is already enti- mediate rate between 38 U.S.C. 1114 (l) tled to an intermediate rate, to the and (o) is caused by the same etio- next higher statutory rate under 38 logical disease or injury, that disease U.S.C. 1114, but in no event higher than or injury may not serve as the basis for the rate for (o). the independent 50 percent or 100 percent unless it is so rated without re- (Authority: 38 U.S.C. 1114(p)) gard to the loss or loss of use. (3) Additional independent 50 percent (ii) The graduated ratings for ar- disabilities. In addition to the statutory rested tuberculosis will not be utilized rates payable under 38 U.S.C. 1114 (l) in this connection, but the permanent through (n) and the intermediate or residuals of tuberculosis may be uti- next higher rate provisions outlined lized. above, additional single permanent dis- (5) Three extremities. Anatomical loss ability or combinations of permanent or loss of use, or a combination of ana- disabilities independently ratable at 50 tomical loss and loss of use, of three percent or more will afford entitlement extremities shall entitle a veteran to to the next higher intermediate rate or the next higher rate without regard to if already entitled to an intermediate whether that rate is a statutory rate or rate to the next higher statutory rate an intermediate rate. The maximum

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monthly payment under this provision factual need for aid and attendance is may not exceed the amount stated in subject to the criteria of § 3.352: 38 U.S.C. 1114(p). (3) Amount of the allowance. The (g) Inactive tuberculosis (complete ar- amount of the additional allowance rest). The rating criteria for deter- payable to a veteran in need of regular mining inactivity of tuberculosis are aid and attendance is specified in 38 set out in § 3.375. U.S.C. 1114(r)(1). The amount of the ad- (1) For a veteran who was receiving ditional allowance payable to a veteran or entitled to receive compensation for in need of a higher level of care is spec- tuberculosis on August 19, 1968, the ified in 38 U.S.C. 1114(r)(2). The higher minimum monthly rate is $67. This level aid and attendance allowance au- minimum special monthly compensa- thorized by 38 U.S.C. 1114(r)(2) is pay- tion is not to be combined with or able in lieu of the regular aid and at- added to any other disability com- tendance allowance authorized by 38 pensation. U.S.C. 1114(r)(1). (2) For a veteran who was not receiv- (i) Total plus 60 percent, or house- ing or entitled to receive compensation bound; 38 U.S.C. 1114(s). The special for tuberculosis on August 19, 1968, the monthly compensation provided by 38 special monthly compensation author- U.S.C. 1114(s) is payable where the vet- ized by paragraph (g)(1) of this section eran has a single service-connected dis- is not payable. ability rated as 100 percent and, (h) Special aid and attendance benefit; (1) Has additional service-connected 38 U.S.C. 1114(r)—(1) Maximum com- disability or disabilities independently pensation cases. A veteran receiving ratable at 60 percent, separate and dis- the maximum rate under 38 U.S.C. 1114 tinct from the 100 percent service-con- (o) or (p) who is in need of regular aid nected disability and involving dif- and attendance or a higher level of care ferent anatomical segments or bodily is entitled to an additional allowance systems, or during periods he or she is not hos- (2) Is permanently housebound by pitalized at United States Government reason of service-connected disability expense. (See § 3.552(b)(2) as to continu- or disabilities. This requirement is met ance following admission for hos- when the veteran is substantially con- pitalization.) Determination of this fined as a direct result of service-con- need is subject to the criteria of § 3.352. nected disabilities to his or her dwell- The regular or higher level aid and ating and the immediate premises or, if tendance allowance is payable whether institutionalized, to the ward or clin- or not the need for regular aid and at- ical areas, and it is reasonably certain tendance or a higher level of care was that the disability or disabilities and a partial basis for entitlement to the resultant confinement will continue maximum rate under 38 U.S.C. 1114 (o) throughout his or her lifetime. or (p), or was based on an independent (j) Special aid and attendance benefit factual determination. for residuals of traumatic brain injury (38 (2) Entitlement to compensation at the U.S.C. 1114(t)). The special monthly intermediate rate between 38 U.S.C. 1114 compensation provided by 38 U.S.C. (n) and (o) plus special monthly com- 1114(t) is payable to a veteran who, as pensation under 38 U.S.C. 1114(k). A vet- the result of service-connected dis- eran receiving compensation at the inability, is in need of regular aid and at- termediate rate between 38 U.S.C. 1114 tendance for the residuals of traumatic (n) and (o) plus special monthly com- brain injury, is not eligible for compensation under 38 U.S.C. 1114(k) who pensation under 38 U.S.C. 1114(r)(2), and establishes a factual need for regular in the absence of such regular aid and aid and attendance or a higher level of attendance would require hospitaliza- care, is also entitled to an additional tion, nursing home care, or other resi- allowance during periods he or she is dential institutional care. Determina- not hospitalized at United States Gov- tion of this need is subject to the cri- ernment expense. (See § 3.552(b)(2) as to teria of § 3.352. continuance following admission for (1) A veteran described in this para- hospitalization.) Determination of the graph (j) shall be entitled to the

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amount equal to the compensation au- (5) Increased pension is payable to a thorized under 38 U.S.C. 1114(o) or the surviving spouse by reason of need for maximum rate authorized under 38 aid and attendance, or if not in need of U.S.C. 1114(p) and, in addition to such aid and attendance, by reason of being compensation, a monthly allowance housebound. equal to the rate described in 38 U.S.C. 1114(r)(2) during periods he or she is not (Authority: 38 U.S.C. 1541(d), (e)) hospitalized at United States Govern- (6) Increased death compensation is ment expense. (See § 3.552(b)(2) as to payable to a surviving spouse by reason continuance following admission for of being in need of aid and attendance. hospitalization.) (2) An allowance authorized under 38 (Authority: 38 U.S.C. 1122) U.S.C. 1114(t) shall be paid in lieu of any allowance authorized by 38 U.S.C. (b) Aid and attendance; need. Need for 1114(r)(1). aid and attendance means helplessness or being so nearly helpless as to re- (Authority: 38 U.S.C. 501, 38 U.S.C. 1114(t)) quire the regular aid and attendance of [26 FR 1587, Feb. 24, 1961, as amended at 27 another person. The criteria set forth FR 4739, May 18, 1962; 28 FR 1587, Feb. 20, in paragraph (c) of this section will be 1963; 28 FR 5671, June 11, 1963; 40 FR 54245, applied in determining whether such Nov. 21, 1975; 45 FR 25392, Apr. 15, 1980; 46 FR need exists. 47541, Sept. 29, 1981; 48 FR 41161, Sept. 14, (c) Aid and attendance; criteria. The 1983; 49 FR 47003, Nov. 30, 1984; 54 FR 34981, veteran, spouse, surviving spouse or Aug. 23, 1989; 60 FR 12886, Mar. 9, 1995; 67 FR 6873, Feb. 14, 2002; 68 FR 55467, Sept. 26, 2003; parent will be considered in need of 74 FR 11483, Mar. 18, 2009; 83 FR 20736, May 8, regular aid and attendance if he or she: 2018] (1) Is blind or so nearly blind as to have corrected visual acuity of 5/200 or § 3.351 Special monthly dependency less, in both eyes, or concentric con- and indemnity compensation, death traction of the visual field to 5 degrees compensation, pension and spouse’s or less; or compensation ratings. (2) Is a patient in a nursing home be- (a) General. This section sets forth cause of mental or physical incapacity; criteria for determining whether: or (1) Increased pension is payable to a (3) Establishes a factual need for aid veteran by reason of need for aid and and attendance under the criteria set attendance or by reason of being house- forth in § 3.352(a). bound. (Authority: 38 U.S.C. 1502(b)) (Authority: 38 U.S.C. 1521(d), (e)) (d) Housebound, or permanent and total (2) Increased compensation is payable plus 60 percent; disability pension. The to a veteran by reason of the veteran’s rate of pension payable to a veteran spouse being in need of aid and attend- who is entitled to pension under 38 ance. U.S.C. 1521 and who is not in need of regular aid and attendance shall be as (Authority: 38 U.S.C. 1115(1)(E)) prescribed in 38 U.S.C. 1521(e) if, in addition to having a single permanent (3) Increased dependency and indem- disability rated 100 percent disabling nity compensation is payable to a sur- under the Schedule for Rating Disabil- viving spouse or parent by reason of ities (not including ratings based upon being in need of aid and attendance. unemployability under § 4.17 of this chapter) the veteran: (Authority: 38 U.S.C. 1311(c), 1315(h)) (1) Has additional disability or dis- (4) Increased dependency and indem- abilities independently ratable at 60 nity compensation is payable to a sur- percent or more, separate and distinct viving spouse who is not in need of aid from the permanent disability rated as and attendance but is housebound. 100 percent disabling and involving different anatomical segments or bodily (Authority: 38 U.S.C. 1311(d)) systems, or

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(2) Is ‘‘permanently housebound’’ by § 3.352 Criteria for determining need reason of disability or disabilities. This for aid and attendance and ‘‘perma- requirement is met when the veteran is nently bedridden.’’ substantially confined to his or her (a) Basic criteria for regular aid and at- dwelling and the immediate premises tendance and permanently bedridden. or, if institutionalized, to the ward or The following will be accorded consid- clinical area, and it is reasonably cer- eration in determining the need for tain that the disability or disabilities regular aid and attendance (§ 3.351(c)(3): and resultant confinement will con- inability of claimant to dress or un- tinue throughout his or her lifetime. dress himself (herself), or to keep himself (herself) ordinarily clean and pre- (Authority: 38 U.S.C. 1502(c), 1521(e)) sentable; frequent need of adjustment of any special prosthetic or orthopedic (e) Housebound; dependency and in- appliances which by reason of the par- demnity compensation. The monthly ticular disability cannot be done with- rate of dependency and indemnity com- out aid (this will not include the ad- pensation payable to a surviving justment of appliances which normal spouse who does not qualify for in- persons would be unable to adjust with- creased dependency and indemnity out aid, such as supports, belts, lacing compensation under 38 U.S.C. 1311(c) at the back, etc.); inability of claimant based on need for regular aid and at- to feed himself (herself) through loss of tendance shall be increased by the coordination of upper extremities or amount specified in 38 U.S.C. 1311(d) if through extreme weakness; inability to the surviving spouse is permanently attend to the wants of nature; or inca- housebound by reason of disability. pacity, physical or mental, which requires care or assistance on a regular The ‘‘permanently housebound’’ re- basis to protect the claimant from haz- quirement is met when the surviving ards or dangers incident to his or her spouse is substantially confined to his daily environment. ‘‘Bedridden’’ will be or her home (ward or clinical areas, if a proper basis for the determination. institutionalized) or immediate prem- For the purpose of this paragraph ises by reason of disability or disabil- ‘‘bedridden’’ will be that condition ities which it is reasonably certain will which, through its essential character, remain throughout the surviving actually requires that the claimant re- spouse’s lifetime. main in bed. The fact that claimant has voluntarily taken to bed or that a (Authority: 38 U.S.C. 1311(d)) physician has prescribed rest in bed for (f) Housebound; improved pension; the greater or lesser part of the day to death. The annual rate of death pension promote convalescence or cure will not payable to a surviving spouse who does suffice. It is not required that all of the not qualify for an annual rate of death disabling conditions enumerated in this paragraph be found to exist before pension payable under § 3.23(a)(6) based a favorable rating may be made. The on need for aid and attendance shall be particular personal functions which the as set forth in § 3.23(a)(7) if the sur- veteran is unable to perform should be viving spouse is permanently house- considered in connection with his or bound by reason of disability. The her condition as a whole. It is only nec- ‘‘permanently housebound’’ require- essary that the evidence establish that ment is met when the surviving spouse the veteran is so helpless as to need is substantially confined to his or her regular aid and attendance, not that home (ward or clinical areas, if institu- there be a constant need. Determina- tionalized) or immediate premises by tions that the veteran is so helpless, as reason of disability or disabilities to be in need of regular aid and attend- which it is reasonably certain will re- ance will not be based solely upon an main throughout the surviving opinion that the claimant’s condition spouse’s lifetime. is such as would require him or her to be in bed. They must be based on the (Authority: 38 U.S.C. 1541(e)) actual requirement of personal assist- [44 FR 45939, Aug. 6, 1979] ance from others.

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(b) Basic criteria for the higher level aid as physical therapy, administration of and attendance allowance. (1) A veteran injections, placement of indwelling is entitled to the higher level aid and catheters, and the changing of sterile attendance allowance authorized by dressings, or like functions which re- § 3.350(h) in lieu of the regular aid and quire professional health-care training attendance allowance when all of the or the regular supervision of a trained following conditions are met: health-care professional to perform. A (i) The veteran is entitled to the licensed health-care professional in- compensation authorized under 38 cludes (but is not limited to) a doctor U.S.C. 1114(o), or the maximum rate of of medicine or osteopathy, a registered compensation authorized under 38 nurse, a licensed practical nurse, or a U.S.C. 1114(p). physical therapist licensed to practice (ii) The veteran meets the require- by a State or political subdivision ments for entitlement to the regular aid and attendance allowance in para- thereof. graph (a) of this section. (4) The term ‘‘under the regular su- (iii) The veteran needs a ‘‘higher pervision of a licensed health-care pro- level of care’’ (as defined in paragraph fessional’’, as used in paragraph (b)(3) (b)(3) of this section) than is required of this section, means that an unli- to establish entitlement to the regular censed person performing personal aid and attendance allowance, and in health-care services is following a regi- the absence of the provision of such men of personal health-care services higher level of care the veteran would prescribed by a health-care profes- require hospitalization, nursing home sional, and that the health-care profes- care, or other residential institutional sional consults with the unlicensed care. person providing the health-care serv- (2) A veteran is entitled to the higher ices at least once each month to mon- level aid and attendance allowance au- itor the prescribed regimen. The con- thorized by § 3.350(j) in lieu of the reg- sultation need not be in person; a tele- ular aid and attendance allowance phone call will suffice. when all of the following conditions are (5) A person performing personal met: health-care services who is a relative (i) As a result of service-connected or other member of the veteran’s residuals of traumatic brain injury, the household is not exempted from the re- veteran meets the requirements for en- quirement that he or she be a licensed titlement to the regular aid and at- health-care professional or be pro- tendance allowance in paragraph (a) of viding such care under the regular su- this section. (ii) As a result of service-connected pervision of a licensed health-care pro- residuals of traumatic brain injury, the fessional. veteran needs a ‘‘higher level of care’’ (6) The provisions of paragraph (b) of (as defined in paragraph (b)(3) of this this section are to be strictly con- section) than is required to establish strued. The higher level aid-and-at- entitlement to the regular aid and attendance allowance is to be granted tendance allowance, and in the absence only when the veteran’s need is clearly of the provision of such higher level of established and the amount of services care the veteran would require hos- required by the veteran on a daily basis pitalization, nursing home care, or is substantial. other residential institutional care. (c) Attendance by relative. The per- (3) Need for a higher level of care formance of the necessary aid and at- shall be considered to be need for per- tendance service by a relative of the sonal health-care services provided on beneficiary or other member of his or a daily basis in the veteran’s home by her household will not prevent the a person who is licensed to provide granting of the additional allowance. such services or who provides such services under the regular supervision (Authority: 38 U.S.C. 501, 1114(r)(2), 1114(t)) of a licensed health-care professional. [41 FR 29680, July 19, 1976, as amended at 44 Personal health-care services include FR 22720, Apr. 17, 1979; 60 FR 27409, May 24, (but are not limited to) such services 1995; 83 FR 20737, May 8, 2018]

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§ 3.353 Determinations of incom- ations of medical opinions will be in petency and competency. accordance with the principles in para- (a) Definition of mental incompetency. graph (a) of this section. Determina- A mentally incompetent person is one tions relative to incompetency should who because of injury or disease lacks be based upon all evidence of record the mental capacity to contract or to and there should be a consistent rela- manage his or her own affairs, includ- tionship between the percentage of dis- ing disbursement of funds without lim- ability, facts relating to commitment itation. or hospitalization and the holding of (b) Authority. (1) Rating agencies incompetency. have sole authority to make official (d) Presumption in favor of competency. determinations of competency and in- Where reasonable doubt arises regard- competency for purposes of: insurance ing a beneficiary’s mental capacity to (38 U.S.C. 1922), and, subject to § 13.110 contract or to manage his or her own of this chapter, disbursement of bene- affairs, including the disbursement of fits. Such determinations are final and funds without limitation, such doubt binding on field stations for these pur- will be resolved in favor of competency poses. (see § 3.102 on reasonable doubt). (2) Where the beneficiary is rated in- (e) Due process. Whenever it is pro- competent, the Veterans Service Cen- posed to make an incompetency deter- ter Manager will develop information mination, the beneficiary will be noti- as to the beneficiary’s social, economic fied of the proposed action and of the and industrial adjustment; appoint (or right to a hearing as provided in § 3.103. recommend appointment of) a fidu- Such notice is not necessary if the ben- ciary as provided in § 13.100 of this eficiary has been declared incompetent chapter; select a method of disbursing by a court of competent jurisdiction or payment as provided in § 13.100 of this if a guardian has been appointed for chapter, or in the case of a married the beneficiary based upon a court beneficiary, appoint the beneficiary’s finding of incompetency. If a hearing is spouse to receive payments as provided requested it must be held prior to a in § 13.100 of this chapter; and authorize rating decision of incompetency. Fail- disbursement of the benefit. ure or refusal of the beneficiary after (3) If in the course of fulfilling the re- proper notice to request or cooperate sponsibilities assigned in paragraph in such a hearing will not preclude a (b)(2) the Veterans Service Center Man- rating decision based on the evidence ager develops evidence indicating that of record. the beneficiary may be capable of ad- (Authority: 38 U.S.C. 501(a)) ministering the funds payable without [36 FR 19020, Sept. 25, 1971, and 40 FR 1241, limitation, he or she will refer that evi- Jan. 7, 1975, as amended at 42 FR 2069, Jan. dence to the rating agency with a 10, 1977; 58 FR 37856, July 14, 1993; 60 FR 55792, statement as to his or her findings. The Nov. 3, 1995; 66 FR 48560, Sept. 21, 2001; 67 FR rating agency will consider this evi- 46868, July 17, 2002; 68 FR 34542, June 10, 2003; dence, together with all other evidence 83 FR 32738, July 13, 2018] of record, to determine whether its prior determination of incompetency § 3.354 Determinations of insanity. should remain in effect. Reexamination (a) Definition of insanity. An insane may be requested as provided in person is one who, while not mentally § 3.327(a) if necessary to properly evalu- defective or constitutionally psycho- ate the beneficiary’s mental capacity pathic, except when a psychosis has to contract or manage his or her own been engrafted upon such basic condi- affairs. tion, exhibits, due to disease, a more or (c) Medical opinion. Unless the med- less prolonged deviation from his nor- ical evidence is clear, convincing and mal method of behavior; or who inter- leaves no doubt as to the person’s in- feres with the peace of society; or who competency, the rating agency will has so departed (become antisocial) make no determination of incom- from the accepted standards of the petency without a definite expression community to which by birth and edu- regarding the question by the respon- cation he belongs as to lack the adapt- sible medical authorities. Consider- ability to make further adjustment to

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the social customs of the community § 3.356 Conditions which determine in which he resides. permanent incapacity for self-sup- (b) Insanity causing discharge. When a port. rating agency is concerned with deter- (a) Basic determinations. A child must mining whether a veteran was insane be shown to be permanently incapable at the time he committed an offense of self-support by reason of mental or leading to his court-martial, discharge physical defect at the date of attaining or resignation (38 U.S.C. 5303(b)), it will the age of 18 years. base its decision on all the evidence (b) Rating criteria. Rating determina- procurable relating to the period in- tions will be made solely on the basis volved, and apply the definition in of whether the child is permanently in- paragraph (a) of this section. capable of self-support through his own efforts by reason of physical or mental [26 FR 1589, Feb. 24, 1961] defects. The question of permanent in- § 3.355 Testamentary capacity for incapacity for self-support is one of fact surance purposes. for determination by the rating agency on competent evidence of record in the When cases are referred to a rating individual case. Rating criteria appli- agency involving the testamentary ca- cable to disabled veterans are not con- pacity of the insured to execute des- trolling. Principal factors for consider- ignations or changes of beneficiary, or ation are: designations or changes of option, the (1) The fact that a claimant is earn- following considerations will apply: ing his or her own support is prima (a) Testamentary capacity is that de- facie evidence that he or she is not in- gree of mental capacity necessary to capable of self-support. Incapacity for enable a person to perform a testa- self-support will not be considered to mentary act. This, in general, requires exist when the child by his or her own that the testator reasonably com- efforts is provided with sufficient in- prehend the nature and significance of come for his or her reasonable support. his act, that is, the subject and extent (2) A child shown by proper evidence of his disposition, recognition of the to have been permanently incapable of object of his bounty, and appreciation self-support prior to the date of attain- of the consequence of his act, ing the age of 18 years, may be so held uninfluenced by any material delusion at a later date even though there may as to the property or persons involved. have been a short intervening period or (b) Due consideration should be given periods when his or her condition was to all facts of record, with emphasis such that he or she was employed, pro- being placed on those facts bearing vided the cause of incapacity is the upon the mental condition of the tes- same as that upon which the original tator (insured) at the time or nearest determination was made and there the time he executed the designation were no intervening diseases or injuries or change. In this connection, consider- that could be considered as major fac- ation should be given to lay as well as tors. Employment which was only cas- medical evidence. ual, intermittent, tryout, unsuccessful, (c) Lack of testamentary capacity or terminated after a short period by should not be confused with insanity or reason of disability, should not be con- mental incompetence. An insane per- sidered as rebutting permanent incapa- son might have a lucid interval during bility of self-support otherwise estab- which he would possess testamentary lished. capacity. On the other hand, a sane (3) It should be borne in mind that person might suffer a temporary men- employment of a child prior or subse- tal aberration during which he would quent to the delimiting age may or not possess testamentary capacity. may not be a normal situation, depend- There is a general but rebuttable pre- ing on the educational progress of the sumption that every testator possesses child, the economic situation of the testamentary capacity. Therefore, rea- family, indulgent attitude of parents, sonable doubts should be resolved in and the like. In those cases where the favor of testamentary capacity. extent and nature of disability raises [26 FR 1590, Feb. 24, 1961] some doubt as to whether they would

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render the average person incapable of vocational rehabilitation training, self-support, factors other than em- compensation will be payable for such ployment are for consideration. In such additional disability. For claims re- cases there should be considered ceived by VA on or after October 1, whether the daily activities of the 1997, see § 3.361. child in the home and community are (b) Additional disability. In deter- equivalent to the activities of employ- mining that additional disability ex- ment of any nature within the physical ists, the following considerations will or mental capacity of the child which govern: would provide sufficient income for (1) The veteran’s physical condition reasonable support. Lack of employ- immediately prior to the disease or in- ment of the child either prior to the de- jury on which the claim for compensa- limiting age or thereafter should not tion is based will be compared with the be considered as a major factor in the subsequent physical condition result- determination to be made, unless it is ing from the disease or injury, each shown that it was due to physical or body part involved being considered mental defect and not to mere disin- separately. clination to work or indulgence of rel- (i) As applied to examinations, the atives or friends. physical condition prior to the disease (4) The capacity of a child for self- or injury will be the condition at time support is not determinable upon em- of beginning the physical examination ployment afforded solely upon sympa- as a result of which the disease or in- thetic or charitable considerations and jury was sustained. which involved no actual or substantial (ii) As applied to medical or surgical rendition of services. treatment, the physical condition prior CROSS REFERENCE: Basic pension and eligi- to the disease or injury will be the con- bility determinations. See § 3.314. dition which the specific medical or [26 FR 1590, Feb. 24, 1961, as amended at 38 surgical treatment was designed to re- FR 871, Jan. 5, 1973] lieve. (2) Compensation will not be payable § 3.357 Civil service preference rat- under this section for the continuance ings. or natural progress of a disease or in- For the purpose of certifying civil jury for which the hospitalization, service disability preference only, a medical or surgical treatment, or ex- service-connected disability may be as- amination was furnished, unless VA’s signed an evaluation of ‘‘less than ten failure to exercise reasonable skill and percent.’’ Any directly or presump- care in the diagnosis or treatment of tively service-connected disease or in- the disease or injury caused additional jury which exhibits some extent of ac- disability or death that probably would tual impairment may be held to exist have been prevented by proper diag- at the level of less than ten percent. nosis or treatment. Compensation will For disabilities incurred in combat, not be payable under this section for however, no actual impairment is re- the continuance or natural progress of quired. a disease or injury for which vocational rehabilitation training was provided. [58 FR 52018, Oct. 6, 1993] (c) Cause. In determining whether § 3.358 Compensation for disability or such additional disability resulted death from hospitalization, medical from a disease or an injury or an aggra- or surgical treatment, examinations vation of an existing disease or injury or vocational rehabilitation train- suffered as a result of training, hos- ing (§ 3.800). pitalization, medical or surgical treat- (a) General. This section applies to ment, or examination, the following claims received by VA before October 1, considerations will govern: 1997. If it is determined that there is (1) It will be necessary to show that additional disability resulting from a the additional disability is actually the disease or injury or aggravation of an result of such disease or injury or an existing disease or injury suffered as a aggravation of an existing disease or result of hospitalization, medical or injury and not merely coincidental surgical treatment, examination, or therewith.

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(2) The mere fact that aggravation formance of some task or operation the occurred will not suffice to make the trainee must learn to perform, al- additional disability compensable in though such use may not be especially the absence of proof that it resulted mentioned in the training program. In from disease or injury or an aggrava- determining whether the element of dition of an existing disease or injury rect or proximate causation is present, suffered as the result of training, hos- it remains necessary for a distinction pitalization, medical or surgical treat- to be made between an injury arising ment, or examination. out of an act performed in pursuance of (3) Compensation is not payable for the course of training, that is, a re- the necessary consequences of medical quired ‘‘learning activity’’, and one or surgical treatment or examination arising out of an activity which is inci- properly administered with the express dent to, related to, or coexistent with or implied consent of the veteran, or, in appropriate cases, the veteran’s rep- the pursuit of the program of training. resentative. ‘‘Necessary consequences’’ For a case to fall within the statute are those which are certain to result there must have been sustained an in- from, or were intended to result from, jury which, but for the performance of the examination or medical or surgical a ‘‘learning activity’’ in the prescribed treatment administered. Consequences course of training, would not have been otherwise certain or intended to result sustained. A meticulous examination from a treatment will not be consid- into all the circumstances is required, ered uncertain or unintended solely be- including a consideration of the time cause it had not been determined at and place of the incident producing the the time consent was given whether injury. that treatment would in fact be admin- (6) Nursing home care furnished istered. under section 1720 of title 38, United (4) When the proximate cause of the States Code is not hospitalization injury suffered was the veteran’s will- within the meaning of this section. ful misconduct or failure to follow in- Such a nursing home is an independent structions, it will bar him (or her) from contractor and, accordingly, its agents receipt of compensation hereunder ex- and employees are not to be deemed cept in the case of incompetent vet- agents and employees of the Depart- erans. ment of Veterans Affairs. If additional (5) Compensation for disability re- disability results from medical or sur- sulting from the pursuit of vocational gical treatment or examination rehabilitation is not payable unless there is established a direct (proxi- through negligence or other wrongful mate) causal connection between the acts or omissions on the part of such a injury or aggravation of an existing in- nursing home, its employees, or its jury and some essential activity or agents, entitlement does not exist function which is within the scope of under this section unless there was an the vocational rehabilitation course, act or omission on the part of the De- not necessarily limited to activities or partment of Veterans Affairs independ- functions specifically designated by ently giving rise to such entitlement the Department of Veterans Affairs in and such acts on the part of both proxi- the individual case, since ordinarily it mately caused the additional dis- is not to be expected that each and ability. every different function and act of a veteran pursuant to his or her course (Authority: 38 U.S.C. 1151, 1720) of training will be particularly speci- [26 FR 1590, Feb. 24, 1961, as amended at 36 fied in the outline of the course or FR 7659, Apr. 23, 1971; 39 FR 34531, Sept. 26, training program. For example, a dis- 1974; 43 FR 51015, Nov. 2, 1978; 60 FR 14223, ability resulting from the use of an Mar. 16, 1995; 61 FR 25788, May 23, 1996; 64 FR item of mechanical or other equipment 1131, Jan. 8, 1999; 69 FR 46433, Aug. 3, 2004] is within the purview of the statute if training in its use is implicit within the prescribed program or course outlined or if its use is implicit in the per-

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§ 3.359 Determination of service con- 1997. This includes original claims and nection for former members of the claims to reopen or otherwise readjudi- Armed Forces of Czechoslovakia or cate a previous claim for benefits Poland. under 38 U.S.C. 1151 or its predecessors. Rating boards will determine wheth- The effective date of benefits is subject er or not the condition for which treat- to the provisions of § 3.400(i). For ment is claimed by former members of claims received by VA before October 1, the Armed Forces of Czechoslovakia or 1997, see § 3.358. Poland under 38 U.S.C. 109(c) is service (2) Compensated Work Therapy. With connected. This determination will be respect to claims alleging disability or made using the same criteria that ap- death due to compensated work ther- plies to determinations of service con- apy, this section applies to claims that nection based on service in the Armed were pending before VA on November 1, Forces of the United States. 2000, or that were received by VA after that date. The effective date of benefits [43 FR 4424, Feb. 2, 1978] is subject to the provisions of §§ 3.114(a) § 3.360 Service-connected health-care and 3.400(i), and shall not be earlier eligibility of certain persons admin- than November 1, 2000. istratively discharged under other (b) Determining whether a veteran has than honorable condition. an additional disability. To determine (a) General. The health-care and re- whether a veteran has an additional lated benefits authorized by chapter 17 disability, VA compares the veteran’s of title 38 U.S.C. shall be provided to condition immediately before the be- certain former service persons with ad- ginning of the hospital care, medical or ministrative discharges under other surgical treatment, examination, than honorable conditions for any dis- training and rehabilitation services, or ability incurred or aggravated during compensated work therapy (CWT) pro- active military, naval, or air service in gram upon which the claim is based to line of duty. the veteran’s condition after such care, (b) Discharge categorization. With cer- treatment, examination, services, or tain exceptions such benefits shall be program has stopped. VA considers furnished for any disability incurred or each involved body part or system sep- aggravated during a period of service arately. terminated by a discharge under other (c) Establishing the cause of additional than honorable conditions. Specifi- disability or death. Claims based on ad- cally, they may not be furnished for ditional disability or death due to hos- any disability incurred or aggravated pital care, medical or surgical treat- during a period of service terminated ment, or examination must meet the by a bad conduct discharge or when one causation requirements of this para- of the bars listed in § 3.12(c) applies. graph and paragraph (d)(1) or (d)(2) of (c) Eligibility criteria. In making de- this section. Claims based on addi- terminations of health-care eligibility tional disability or death due to train- the same criteria will be used as is now ing and rehabilitation services or com- applicable to determinations of service pensated work therapy program must incurrence and in line of duty when meet the causation requirements of there is no character of discharge bar. paragraph (d)(3) of this section. (1) Actual causation required. To es- [43 FR 15154, Apr. 11, 1978] tablish causation, the evidence must § 3.361 Benefits under 38 U.S.C. 1151(a) show that the hospital care, medical or for additional disability or death surgical treatment, or examination re- due to hospital care, medical or sur- sulted in the veteran’s additional dis- gical treatment, examination, train- ability or death. Merely showing that a ing and rehabilitation services, or veteran received care, treatment, or compensated work therapy pro- examination and that the veteran has gram. an additional disability or died does (a) Claims subject to this section—(1) not establish cause. General. Except as provided in para- (2) Continuance or natural progress of a graph (2), this section applies to claims disease or injury. Hospital care, medical received by VA on or after October 1, or surgical treatment, or examination

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cannot cause the continuance or nat- cumstances specified in § 17.32(b) of this ural progress of a disease or injury for chapter, as in emergency situations. which the care, treatment, or examina- (2) Events not reasonably foreseeable. tion was furnished unless VA’s failure Whether the proximate cause of a vet- to timely diagnose and properly treat eran’s additional disability or death the disease or injury proximately was an event not reasonably foresee- caused the continuance or natural able is in each claim to be determined progress. The provision of training and based on what a reasonable health care rehabilitation services or CWT pro- provider would have foreseen. The gram cannot cause the continuance or event need not be completely unfore- natural progress of a disease or injury seeable or unimaginable but must be for which the services were provided. one that a reasonable health care pro- (3) Veteran’s failure to follow medical vider would not have considered to be instructions. Additional disability or an ordinary risk of the treatment pro- death caused by a veteran’s failure to vided. In determining whether an event follow properly given medical instruc- was reasonably foreseeable, VA will tions is not caused by hospital care, consider whether the risk of that event medical or surgical treatment, or ex- was the type of risk that a reasonable amination. health care provider would have dis- (d) Establishing the proximate cause of closed in connection with the informed additional disability or death. The proxi- consent procedures of § 17.32 of this mate cause of disability or death is the chapter. action or event that directly caused (3) Training and rehabilitation services the disability or death, as distin- or compensated work therapy program. guished from a remote contributing To establish that the provision of cause. training and rehabilitation services or (1) Care, treatment, or examination. To a CWT program proximately caused a establish that carelessness, negligence, veteran’s additional disability or lack of proper skill, error in judgment, death, it must be shown that the vet- or similar instance of fault on VA’s eran’s participation in an essential ac- part in furnishing hospital care, med- tivity or function of the training, serv- ical or surgical treatment, or examina- ices, or CWT program provided or au- tion proximately caused a veteran’s ad- thorized by VA proximately caused the ditional disability or death, it must be disability or death. The veteran must shown that the hospital care, medical have been participating in such train- or surgical treatment, or examination ing, services, or CWT program provided caused the veteran’s additional dis- or authorized by VA as part of an ap- ability or death (as explained in para- proved rehabilitation program under 38 graph (c) of this section); and U.S.C. chapter 31 or as part of a CWT (i) VA failed to exercise the degree of program under 38 U.S.C. 1718. It need care that would be expected of a rea- not be shown that VA approved that sonable health care provider; or specific activity or function, as long as (ii) VA furnished the hospital care, the activity or function is generally ac- medical or surgical treatment, or excepted as being a necessary component amination without the veteran’s or, in of the training, services, or CWT pro- appropriate cases, the veteran’s rep- gram that VA provided or authorized. resentative’s informed consent. To de- (e) Department employees and facilities. termine whether there was informed (1) A Department employee is an indi- consent, VA will consider whether the vidual— health care providers substantially (i) Who is appointed by the Depart- complied with the requirements of ment in the civil service under title 38, § 17.32 of this chapter. Minor deviations United States Code, or title 5, United from the requirements of § 17.32 of this States Code, as an employee as defined chapter that are immaterial under the in 5 U.S.C. 2105; circumstances of a case will not defeat (ii) Who is engaged in furnishing hos- a finding of informed consent. Consent pital care, medical or surgical treat- may be express (i.e., given orally or in ment, or examinations under authority writing) or implied under the cir- of law; and

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(iii) Whose day-to-day activities are the amount to be offset under 38 U.S.C. subject to supervision by the Secretary 1151(b) from any compensation awarded of Veterans Affairs. under 38 U.S.C. 1151(a) is the entire (2) A Department facility is a facility amount of the veteran’s share of the over which the Secretary of Veterans judgment, settlement, or compromise, Affairs has direct jurisdiction. including the veteran’s proportional (f) Activities that are not hospital care, share of attorney fees. medical or surgical treatment, or examina- (c) Offset of survivors’ awards of de- tion furnished by a Department employee pendency and indemnity compensation. If or in a Department facility. The fol- a veteran’s death is the basis of a judg- lowing are not hospital care, medical ment under 28 U.S.C. 1346(b) awarded, or surgical treatment, or examination or a settlement or compromise under 28 furnished by a Department employee or U.S.C. 2672 or 2677 entered, on or after in a Department facility within the December 1, 1962, the amount to be off- meaning of 38 U.S.C. 1151(a): set under 38 U.S.C. 1151(b) from any de- (1) Hospital care or medical services pendency and indemnity compensation furnished under a contract made under awarded under 38 U.S.C. 1151(a) to a 38 U.S.C. 1703. survivor is only the amount of the (2) Nursing home care furnished judgment, settlement, or compromise under 38 U.S.C. 1720. representing damages for the veteran’s (3) Hospital care or medical services, death the survivor receives in an indi- including examination, provided under vidual capacity or as distribution from 38 U.S.C. 8153 in a facility over which the decedent veteran’s estate of sums the Secretary does not have direct ju- included in the judgment, settlement, risdiction. or compromise to compensate for harm (g) Benefits payable under 38 U.S.C. suffered by the survivor, plus the sur- 1151 for a veteran’s death. (1) Death be- vivor’s proportional share of attorney fore January 1, 1957. The benefit payable fees. under 38 U.S.C. 1151(a) to an eligible (d) Offset of structured settlements. survivor for a veteran’s death occur- This paragraph applies if a veteran’s ring before January 1, 1957, is death disability or death is the basis of a compensation. See §§ 3.5(b)(2) and 3.702 structured settlement or structured for the right to elect dependency and compromise under 28 U.S.C. 2672 or 2677 indemnity compensation. entered on or after December 1, 1962. (2) Death after December 31, 1956. The (1) The amount to be offset. The benefit payable under 38 U.S.C. 1151(a) amount to be offset under 38 U.S.C. to an eligible survivor for a veteran’s 1151(b) from benefits awarded under 38 death occurring after December 31, U.S.C. 1151(a) is the veteran’s or sur- 1956, is dependency and indemnity com- vivor’s proportional share of the cost pensation. to the United States of the settlement (Authority: 38 U.S.C. 1151) or compromise, including the veteran’s [69 FR 46433, Aug. 3, 2004] or survivor’s proportional share of attorney fees. § 3.362 Offsets under 38 U.S.C. 1151(b) (2) When the offset begins. The offset of benefits awarded under 38 U.S.C. of benefits awarded under 38 U.S.C. 1151(a). 1151(a) begins the first month after the (a) Claims subject to this section. This structured settlement or structured section applies to claims received by compromise has become final that such VA on or after October 1, 1997. This in- benefits would otherwise be paid. cludes original claims and claims to re- (e) Offset of award of benefits under 38 open or otherwise readjudicate a pre- U.S.C. chapter 21 or 38 U.S.C. chapter 39. vious claim for benefits under 38 U.S.C. (1) If a judgment, settlement, or com- 1151 or its predecessors. promise covered in paragraphs (b) (b) Offset of veterans’ awards of com- through (d) of this section becomes pensation. If a veteran’s disability is final on or after December 10, 2004, and the basis of a judgment under 28 U.S.C. includes an amount that is specifically 1346(b) awarded, or a settlement or designated for a purpose for which ben- compromise under 28 U.S.C. 2672 or 2677 efits are provided under 38 U.S.C. chap- entered, on or after December 1, 1962, ter 21 (38 CFR 3.809 and 3.809a) or 38

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U.S.C. chapter 39 (38 CFR 3.808), and if RATING CONSIDERATIONS RELATIVE TO VA awards 38 U.S.C. chapter 21 or 38 SPECIFIC DISEASES U.S.C. chapter 39 benefits after the date on which the judgment, settle- § 3.370 Pulmonary tuberculosis shown by X-ray in active service. ment, or compromise becomes final, the amount of the award will be re- (a) Active disease. X-ray evidence duced by the amount received under alone may be adequate for grant of di- the judgment, settlement, or com- rect service connection for pulmonary promise for the same purpose. tuberculosis. When under consideration, all available service department (2) If the amount described in para- films and subsequent films will be se- graph (e)(1) of this section is greater cured and read by specialists at des- than the amount of an award under 38 ignated stations who should have a U.S.C. chapter 21 or 38 U.S.C. chapter current examination report and X-ray. 39, the excess amount received under Resulting interpretations of service the judgment, settlement, or com- films will be accorded the same consid- promise will be offset against benefits eration for service-connection purposes otherwise payable under 38 U.S.C. as if clinically established, however, a chapter 11. compensable rating will not be as- [69 FR 46434, Aug. 3, 2004, as amended at 71 signed prior to establishment of an ac- FR 44918, Aug. 8, 2006; 75 FR 57861, Sept. 23, tive condition by approved methods. 2010] (b) Inactive disease. Where the veteran was examined at time of entrance into § 3.363 Bar to benefits under 38 U.S.C. active service but X-ray was not made, 1151. or if made, is not available and there was no notation or other evidence of (a) Claims subject to this section. This active or inactive reinfection type pul- section applies to claims received by monary tuberculosis existing prior to VA on or after October 1, 1997. This in- such entrance, it will be assumed that cludes original claims and claims to re- the condition occurred during service open or otherwise readjudicate a pre- and direct service connection will be in vious claim for benefits under 38 U.S.C. order for inactive pulmonary tuber- 1151 or its predecessors. culosis shown by X-ray evidence during (b) Administrative award, compromises, service in the manner prescribed in or settlements, or judgments that bar ben- paragraph (a) of this section, unless le- efits under 38 U.S.C. 1151. If a veteran’s sions are first shown so soon after disability or death was the basis of an entry on active service as to compel administrative award under 28 U.S.C. the conclusion, on the basis of sound 1346(b) made, or a settlement or com- medical principles, that they existed promise under 28 U.S.C. 2672 or 2677 fi- prior to entry on active service. nalized, before December 1, 1962, VA (c) Primary lesions. Healed primary may not award benefits under 38 U.S.C. type tuberculosis shown at the time of 1151 for any period after such award, entrance into active service will not be settlement, or compromise was made taken as evidence to rebut direct or or became final. If a veteran’s dis- presumptive service connection for ac- ability or death was the basis of a judg- tive reinfection type pulmonary tuber- ment that became final before Decem- culosis. ber 1, 1962, VA may award benefits [26 FR 1591, Feb. 24, 1961, as amended at 43 under 38 U.S.C. 1151 for the disability FR 45347, Oct. 2, 1978] or death unless the terms of the judg- § 3.371 Presumptive service connec- ment provide otherwise. tion for tuberculous disease; war- (Authority: 38 U.S.C. 1151) time and service on or after Janu- ary 1, 1947. [69 FR 46434, Aug. 3, 2004] (a) Pulmonary tuberculosis. (1) Evi- dence of activity on comparative study of X-ray films showing pulmonary tuberculosis within the 3-year presumptive period provided by § 3.307(a)(3) will

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be taken as establishing service con- graduated ratings will commence at nection for active pulmonary tuber- the end of the 1-year period. For a vet- culosis subsequently diagnosed by ap- eran who was not receiving or entitled proved methods but service connection to receive compensation on August 19, and evaluation may be assigned only 1968, ratings will be assigned in accord- from the date of such diagnosis or ance with the Schedule for Rating Dis- other evidence of clinical activity. abilities (part 4 of this chapter). This (2) A notation of inactive tuber- section is not applicable to running culosis of the reinfection type at induc- award cases. tion or enlistment definitely prevents [33 FR 16275, Nov. 6, 1968, as amended at 84 the grant of service connection under FR 170, Jan. 18, 2019] § 3.307 for active tuberculosis, regardless of the fact that it was shown with- § 3.373 [Reserved] in the appropriate presumptive period. (b) Pleurisy with effusion without obvi- § 3.374 Effect of diagnosis of active tu- ous cause. Pleurisy with effusion with berculosis. evidence of diagnostic studies ruling (a) Service diagnosis. Service depart- out obvious nontuberculous causes will ment diagnosis of active pulmonary tu- qualify as active tuberculosis. The re- berculosis will be accepted unless a quirements for presumptive service board of medical examiners, Clinic Di- connection will be the same as those rector or Chief, Outpatient Service cer- for tuberculous pleurisy. tifies, after considering all the evi- (c) Tuberculous pleurisy and endo- dence, including the favoring or oppos- bronchial tuberculosis. Tuberculous ing tuberculosis and activity, that such pleurisy and endobronchial tuber- diagnosis was incorrect. Doubtful cases culosis fall within the category of pul- may be referred to the Chief Medical monary tuberculosis for the purpose of Director in Central Office. service connection on a presumptive (b) Department of Veterans Affairs di- basis. Either will be held incurred in agnosis. Diagnosis of active pulmonary service when initially manifested with- tuberculosis by the medical authorities in 36 months after the veteran’s separa- of the Department of Veterans Affairs tion from service as determined under as the result of examination, observa- § 3.307(a)(2). tion, or treatment will be accepted for (d) Miliary tuberculosis. Service con- rating purposes. Reference to the Clin- nection for miliary tuberculosis involv- ic Director or Chief, Outpatient Serv- ing the lungs is to be determined in the ice, will be in order in questionable same manner as for other active pul- cases and, if necessary, to the Chief monary tuberculosis. Medical Director in Central Office. (c) Private physician’s diagnosis. Diag- [26 FR 1591, Feb. 24, 1961, as amended at 27 FR 6387, July 6, 1962; 31 FR 4681, Mar. 19, 1966; nosis of active pulmonary tuberculosis 39 FR 34532, Sept. 26, 1974; 43 FR 45347, Oct. 2, by private physicians on the basis of 1978; 54 FR 34981, Aug. 23, 1989] their examination, observation or treatment will not be accepted to show § 3.372 Initial grant following inac- the disease was initially manifested tivity of tuberculosis. after discharge from active service un- When service connection is granted less confirmed by acceptable clinical, initially on an original or supple- X-ray or laboratory studies, or by find- mental claim for pulmonary or nonpul- ings of active tuberculosis based upon monary tuberculosis and there is satis- acceptable hospital observation or factory evidence that the condition treatment. was active previously but is now inac- [26 FR 1591, Feb. 24, 1961, as amended at 27 tive (arrested), it will be presumed that FR 6387, July 6, 1962; 33 FR 16275, Nov. 6, 1968; the disease continued to be active for 1 43 FR 45348, Oct. 2, 1978] year after the last date of established activity, provided there is no evidence § 3.375 Determination of inactivity to establish activity or inactivity in (complete arrest) in tuberculosis. the intervening period. For a veteran (a) Pulmonary tuberculosis. A veteran entitled to receive compensation on shown to have had pulmonary tuber- August 19, 1968, the beginning date of culosis will be held to have reached a

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condition of ‘‘complete arrest’’ when a § 3.379 Anterior poliomyelitis. diagnosis of inactive is made. If the first manifestations of acute (b) Nonpulmonary disease. Determina- anterior poliomyelitis present them- tion of complete arrest of nonpul- selves in a veteran within 35 days of monary tuberculosis requires absence termination of active military service, of evidence of activity for 6 months. If it is probable that the infection oc- there are two or more foci of such tu- curred during service. If they first ap- berculosis, one of which is active, the pear after this period, it is probable condition will not be considered to be that the infection was incurred after inactive until the tuberculous process service. has reached arrest in its entirety. (c) Arrest following surgery. Where [26 FR 1592, Feb. 24, 1961] there has been surgical excision of the lesion or organ, the date of complete § 3.380 Diseases of allergic etiology. arrest will be the date of discharge Diseases of allergic etiology, includ- from the hospital, or 6 months from ing bronchial asthma and urticaria, the date of excision, whichever is later. may not be disposed of routinely for compensation purposes as constitu- [33 FR 16275, Nov. 6, 1968, as amended at 43 FR 45348, Oct. 2, 1978] tional or developmental abnormalities. Service connection must be determined §§ 3.376–3.377 [Reserved] on the evidence as to existence prior to enlistment and, if so existent, a com- § 3.378 Changes from activity in pul- parative study must be made of its se- monary tuberculosis pension cases. verity at enlistment and subsequently. A permanent and total disability rat- Increase in the degree of disability during in effect during hospitalization will ing service may not be disposed of rou- not be discontinued before hospital dis- tinely as natural progress nor as due to charge on the basis of a change in clas- the inherent nature of the disease. Sea- sification from active. At hospital dis- sonal and other acute allergic mani- charge, the permanent and total rating festations subsiding on the absence of will be discontinued unless (a) the med- or removal of the allergen are gen- ical evidence does not support a finding erally to be regarded as acute diseases, of complete arrest (§ 3.375), or (b) where healing without residuals. The deter- complete arrest is shown but the med- mination as to service incurrence or ical authorities recommend that em- aggravation must be on the whole evi- ployment not be resumed or be re- dentiary showing. sumed only for short hours (not more [26 FR 1592, Feb. 24, 1961] than 4 hours a day for a 5-day week). If either of the two aforementioned con- § 3.381 Service connection of dental ditions is met, discontinuance will be conditions for treatment purposes. deferred pending examination in 6 (a) The Veterans Benefits Adminis- months. Although complete arrest may tration (VBA) will adjudicate a claim be established upon that examination, for service connection of a dental con- the permanent and total rating may be dition for treatment purposes after the extended for a further period of 6 Veterans Health Administration deter- months provided the veteran’s employ- mines a veteran meets the basic eligi- ment is limited to short hours as rec- bility requirements of § 17.161 of this ommended by the medical authorities chapter and requests VBA make a de- (not more than 4 hours a day for a 5- termination on questions that include, day week). Similar extensions may be but are not limited to, any of the fol- granted under the same conditions at lowing: the end of 12 and 18 months periods. At (1) Former Prisoner of War status; the expiration of 24 months after hos- (2) Whether the veteran has a com- pitalization, the case will be considered pensable or noncompensable service- under § 3.321(b) if continued short hours connected dental condition or dis- of employment is recommended or if ability; other evidence warrants submission. (3) Whether the dental condition or [43 FR 45348, Oct. 2, 1978] disability is a result of combat wounds;

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(4) Whether the dental condition or (4) Teeth noted as carious but restor- disability is a result of service trauma; able at entry, whether or not filled, or will be service-connected if extraction (5) Whether the veteran is totally dis- was required after 180 days or more of abled due to a service-connected dis- active service. ability. (5) Teeth noted at entry as non-re- (b) Treatable carious teeth, replace- storable will not be service-connected, able missing teeth, dental or alveolar regardless of treatment during service. abscesses, and periodontal disease are (6) Teeth noted as missing at entry not compensable disabilities, but may will not be service connected, regard- nevertheless be service connected sole- less of treatment during service. ly for the purpose of establishing eligi- (f) The following will not be consid- bility for outpatient dental treatment ered service-connected for treatment as provided for in § 17.161 of this chap- purposes: ter. These conditions and other dental (1) Calculus; conditions or disabilities that are (2) Acute periodontal disease; noncompensably rated under § 4.150 of (3) Third molars, unless disease or pa- this chapter may be service connected thology of the tooth developed after 180 for purposes of Class II or Class II (a) days or more of active service, or was dental treatment under § 17.161 of this due to combat or in-service trauma; chapter. and (c) The rating activity will consider (4) Impacted or malposed teeth, and each defective or missing tooth and other developmental defects, unless each disease of the teeth and peri- disease or pathology of these teeth de- odontal tissues separately to determine veloped after 180 days or more of active whether the condition was incurred or service. aggravated in line of duty during ac- (g) Teeth extracted because of chron- tive service ic periodontal disease will be service- (d) In determining service connec- connected only if they were extracted tion, the condition of teeth and peri- after 180 days or more of active service. odontal tissues at the time of entry into active duty will be considered. (Authority: 38 U.S.C. 1712) Treatment during service, including [64 FR 30393, June 8, 1999, as amended at 77 filling or extraction of a tooth, or FR 4470, Jan. 30, 2012] placement of a prosthesis, will not be considered evidence of aggravation of a § 3.382 [Reserved] condition that was noted at entry, unless additional pathology developed § 3.383 Special consideration for after 180 days or more of active service. paired organs and extremities. (e) The following principles apply to (a) Entitlement criteria. Compensation dental conditions noted at entry and is payable for the combinations of serv- treated during service: ice-connected and nonservice-con- (1) Teeth noted as normal at entry nected disabilities specified in para- will be service-connected if they were graphs (a)(1) through (a)(5) of this sec- filled or extracted after 180 days or tion as if both disabilities were service- more of active service. connected, provided the nonservice- (2) Teeth noted as filled at entry will connected disability is not the result of be service-connected if they were ex- the veteran’s own willful misconduct. tracted, or if the existing filling was (1) Impairment of vision in one eye as replaced, after 180 days or more of ac- a result of service-connected disability tive service. and impairment of vision in the other (3) Teeth noted as carious but restor- eye as a result of non-service-con- able at entry will not be service-connected disability and nected on the basis that they were (i) The impairment of vision in each filled during service. However, new car- eye is rated at a visual acuity of 20/200 ies that developed 180 days or more or less; or after such a tooth was filled will be (ii) The peripheral field of vision for service-connected. each eye is 20 degrees or less.

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(2) Loss or loss of use of one kidney though such benefits may have been as a result of service-connected dis- awarded pursuant to a judicial pro- ability and involvement of the other ceeding. kidney as a result of nonservice-con- (d) Veteran’s duty to report. Any per- nected disability. son entitled to increased compensation (3) Hearing impairment in one ear under this section shall promptly re- compensable to a degree of 10 percent port to VA the receipt of any money or or more as a result of service-con- property received pursuant to a judi- nected disability and hearing impair- cial proceeding based upon, or a settlement as a result of nonservice-con- ment or compromise of, any cause of nected disability that meets the provi- action or other right of recovery for sions of § 3.385 in the other ear. damages for the nonservice-connected (4) Loss or loss of use of one hand or loss or loss of use of the impaired ex- one foot as a result of service-con- tremity upon which entitlement under nected disability and loss or loss of use this section is based. The amount to be of the other hand or foot as a result of reported is the total of the amount of nonservice-connected disability. money received and the fair market (5) Permanent service-connected dis- value of property received. Expenses ability of one lung, rated 50 percent or incident to recovery, such as attor- more disabling, in combination with a neys’ fees, may not be deducted from nonservice-connected disability of the the amount to be reported. other lung. (Authority: 38 U.S.C. 501(a), 1160) (b) Effect of judgment or settlement. (1) If a veteran receives any money or CROSS REFERENCES: § 3.385 Disability due to property of value pursuant to an award impaired hearing; § 4.85 Evaluation of hearing impairment. in a judicial proceeding based upon, or a settlement or compromise of, any [53 FR 23236, June 21, 1988, as amended at 69 cause of action for damages for the FR 48149, Aug. 9, 2004; 74 FR 11483, Mar. 18, nonservice-connected disability which 2009] established entitlement under this sec- § 3.384 Psychosis. tion, the increased compensation payable by reason of this section shall not For purposes of this part, the term be paid for any month following the ‘‘psychosis’’ means any of the following month in which any such money or disorders listed in the American Psy- property is received until such time as chiatric Association’s Diagnostic and the total amount of such increased Statistical Manual of Mental Dis- compensation that would otherwise orders, Fifth Edition (DSM–5) (see have been payable equals the total of § 4.125 for availability information): the amount of any such money re- (a) Brief Psychotic Disorder; (b) Delusional Disorder; ceived and the fair market value of any (c) Psychotic Disorder Due to An- such property received. The provisions other Medical Condition; of this paragraph do not apply, how- (d) Other Specified Schizophrenia ever, to any portion of such increased Spectrum and Other Psychotic Dis- compensation payable for any period order; preceding the end of the month in (e) Schizoaffective Disorder; which such money or property of value (f) Schizophrenia; was received. (g) Schizophreniform Disorder; and (2) With respect to the disability (h) Substance/Medication-Induced combinations specified in paragraphs Psychotic Disorder. (a)(1), (a)(2), (a)(3) and (a)(5) of this section, the provisions of this paragraph (Authority: 38 U.S.C. 501(a), 1101, 1112(a) and apply only to awards of increased com- (b)) pensation made on or after October 28, [79 FR 45099, Aug. 4, 2014] 1986. (c) Social security and workers’ com- § 3.385 Disability due to impaired pensation. Benefits received under so- hearing. cial security or workers’ compensation For the purposes of applying the laws are not subject to recoupment under administered by VA, impaired hearing paragraph (b) of this section even will be considered to be a disability

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when the auditory threshold in any of manently and totally disabled, which- the frequencies 500, 1000, 2000, 3000, 4000 ever is to the advantage of the veteran. Hertz is 40 decibels or greater; or when While rating board judgment must be the auditory thresholds for at least applied to the facts and circumstances three of the frequencies 500, 1000, 2000, of each case, extensive hospitalization 3000, or 4000 Hertz are 26 decibels or will generally qualify as sufficiently greater; or when speech recognition incapacitating to have prevented the scores using the Maryland CNC Test filing of a claim. For the purposes of are less than 94 percent. this subparagraph, the presumptive [59 FR 60560, Nov. 25, 1994] provisions of § 3.342(a) do not apply. (2) Disability compensation—(i) Direct EFFECTIVE DATES service connection (§ 3.4(b)). Day following separation from active service § 3.400 General. or date entitlement arose if claim is re- Except as otherwise provided, the ef- ceived within 1 year after separation fective date of an evaluation and award from service; otherwise, date of receipt of pension, compensation, or depend- of claim, or date entitlement arose, ency and indemnity compensation whichever is later. Separation from based on an initial claim or supple- service means separation under condi- mental claim will be the date of receipt tions other than dishonorable from of the claim or the date entitlement continuous active service which ex- arose, whichever is later. For effective tended from the date the disability was date provisions regarding revision of a incurred or aggravated. decision based on a supplemental claim (ii) Presumptive service connection or higher-level review, see § 3.2500. (§§ 3.307, 3.308, 3.309). Date entitlement arose, if claim is received within 1 year (Authority: 38 U.S.C. 5110(a)) after separation from active duty; oth- (a) Unless specifically provided. On erwise date of receipt of claim, or date basis of facts found. entitlement arose, whichever is later. (b) Disability benefits—(1) Disability Where the requirements for service pension (§ 3.3). An award of disability connection are met during service, the pension may not be effective prior to effective date will be the day following the date entitlement arose. separation from service if there was (i) Claims received prior to October 1, continuous active service following the 1984. Date of receipt of claim or date on period of service on which the presump- which the veteran became permanently tion is based and a claim is received and totally disabled, if claim is filed within 1 year after separation from ac- within one year from such date, which- tive duty. ever is to the advantage of the veteran. (c) Death benefits—(1) Death in service (ii) Claims received on or after October 1, 1984. (A) Except as provided in para- (38 U.S.C. 5110(j), Pub. L. 87–825) graph (b)(1)(ii)(B) of this section, date (§§ 3.4(c), 3.5(b)). First day of the month of receipt of claim. fixed by the Secretary concerned as the (B) If, within one year from the date date of actual or presumed death, if on which the veteran became perma- claim is received with 1 year after the nently and totally disabled, the vet- date the initial report of actual death eran files a claim for a retroactive or finding of presumed death was made; award and establishes that a physical however benefits based on a report of or mental disability, which was not the actual death are not payable for any result of the veteran’s own willful mis- period for which the claimant has re- conduct, was so incapacitating that it ceived, or is entitled to receive an al- prevented him or her from filing a dis- lowance, allotment, or service pay of ability pension claim for at least the the veteran. first 30 days immediately following the (2) Service-connected death after sepa- date on which the veteran became per- ration from service (38 U.S.C. 5110(d), manently and totally disabled, the dis- Pub. L. 87–825) (§§ 3.4(c), 3.5(b)). First ability pension award may be effective day of the month in which the vet- from the date of receipt of claim or the eran’s death occurred if claim is re- date on which the veteran became per- ceived within 1 year after the date of

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death; otherwise, date of receipt of cable law, subject to any payments claim. made by the Office of Workers’ Com- (3) Nonservice-connected death after pensation Programs under the Federal separation from service. (i) For awards Employees’ Compensation Act over the based on claims received prior to Octo- same period of time. ber 1, 1984, or on or after December 10, (g) Correction of military records (38 2004, first day of the month in which U.S.C. 5110(i); Pub. L. 87–825). Where en- the veteran’s death occurred if claim is titlement is established because of the received within one year after the date correction, change or modification of a of death; otherwise, date of receipt of military record, or of a discharge or claim. dismissal, by a Board established under (ii) For awards based on claims re- 10 U.S.C. 1552 or 1553, or because of ceived between October 1, 1984, and De- other corrective action by competent cember 9, 2004, first day of the month military naval, or air authority, the in which the veteran’s death occurred award will be effective from the latest if claim is received within 45 days after of these dates: the date of death; otherwise, date of re- (1) Date application for change, cor- ceipt of claim. rection, or modification was filed with (Authority: 38 U.S.C. 5110(d)) the service department, in either an original or a disallowed claim; (4) Dependency and indemnity com- (2) Date of receipt of claim if claim pensation—(i) Deaths prior to January 1, was disallowed; or 1957 (§ 3.702). Date of receipt of election. (3) One year prior to date of reopen- (ii) Child (38 U.S.C. 5110(e), Pub. L. 87– ing of disallowed claim. 835). First day of the month in which (h) Difference of opinion (§ 3.105). (1) As entitlement arose if claim is received to decisions not finally adjudicated within 1 year after the date of entitle- (see § 3.160(d)) prior to timely receipt of ment; otherwise, date of receipt of an application for higher-level review, claim. or prior to readjudication on VA initia- (iii) Deaths on or after May 1, 1957 (in- tive, the date from which benefits service waiver cases) (§§ 3.5(b)(3) and would have been payable if the former 3.702). Date of receipt of election. (See decision had been favorable. § 3.114(a)). (d) [Reserved] (2) As to decisions which have been (e) Apportionment (§§ 3.450 through finally adjudicated (see § 3.160(d)), and 3.461, 3.551). On original claims, in ac- notwithstanding other provisions of cordance with the facts found. On other this section, the date entitlement than original claims from the first day arose, but not earlier than the date of of the month following the month in receipt of the supplemental claim. which: (3) As to decisions which have been (1) Claim is received for apportion- finally adjudicated (see 3.160(d)) and re- ment of a veteran’s award, except that adjudication is undertaken solely on where payments to him (her) have been VA initiative, the date of Central Of- interrupted, apportionment will be ef- fice approval authorizing a favorable fective the day following date of last decision or the date of the favorable payment if a claim for apportionment Board of Veterans’ Appeals decision. is received within 1 year after that (4) Where the initial determination date; for the purpose of death benefits is fa- (2) Notice is received that a child in- vorable, the commencing date will be cluded in the surviving spouse’s award determined without regard to the fact is not in the surviving spouse’s cus- that the action may reverse, on a dif- tody, except that where payments to ference of opinion, an unfavorable deci- the surviving spouse have been inter- sion for disability purposes by an adju- rupted, apportionment will be effective dicative agency other than the Board the day following date of last payment of Veterans Appeals, which was in ef- if such notice is received within 1 year fect at the date of the veteran’s death. after that date. (i) Disability or death due to hos- (f) Federal employees’ compensation pitalization, etc. (38 U.S.C. 5110(c), (d); cases (§ 3.708). Date authorized by appli- Public Law 87–825; §§ 3.358, 3.361, and

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3.800.) (1) Disability. Date injury or ag- (n) Guardian. Day following date of gravation was suffered if claim is re- last payment to prior payee or fidu- ceived within 1 year after that date; ciary. otherwise, date of receipt of claim. NOTE: Award to guardian shall include (2) Death. First day of month in amounts withheld for possible apportion- which the veteran’s death occurred if a ments as well as money in Personal Funds of claim is received within 1 year fol- Patients. lowing the date of death; otherwise, date of receipt of claim. (o) Increases (38 U.S.C. 5110(a) and (j) Election of Department of Veterans 5110(b)(2), Pub. L. 94–71, 89 Stat. 395; Affairs benefits (§ 3.700 series). (1) Unless §§ 3.109, 3.156, 3.157—(1) General. Except otherwise provided, the date of receipt as provided in paragraph (o)(2) of this of election, subject to prior payments. section and § 3.401(b), date of receipt of (2) July 1, 1960, as to pension payable claim or date entitlement arose, under Pub. L. 86–211, where pension is whichever is later. A retroactive in- payable for June 30, 1960, under the law crease or additional benefit will not be in effect on that date, including an awarded after basic entitlement has award approved after that date, if the been terminated, such as by severance election is filed within (generally) 120 of service connection. days from date of notice of the award. (2) Disability compensation. Earliest The award will be subject to prior pay- date as of which it is factually ascer- ments over the same period of time. tainable based on all evidence of record (3) January 1, 1965, as to pension pay- that an increase in disability had oc- able under Pub. L. 86–211 (73 Stat. 432) curred if a complete claim or intent to as amended by Pub. L. 88–664 if there file a claim is received within 1 year was basic eligibility for pension on from such date, otherwise, date of re- June 30, 1960, under the law in effect on ceipt of claim. When medical records that date and an election if filed prior indicate an increase in a disability, re- to May 1, 1965. ceipt of such medical records may be (4) January 1, 1965, as to pension pay- used to establish effective date(s) for able under Pub. L. 86–211 (73 Stat. 432) retroactive benefits based on facts as amended by Pub. L. 88–664 if there found of an increase in a disability was basic eligibility on that date for only if a complete claim or intent to pension on the basis of service in the file a claim for an increase is received Indian wars or Spanish-American War within 1 year of the date of the report and an election is filed prior to May 1, of examination, hospitalization, or 1965. medical treatment. The provisions of (5) January 1, 1969, as to pension pay- this paragraph apply only when such able under Pub. L. 86–211 (73 Stat. 432), reports relate to examination or treat- as amended by Pub. L. 90–275 (82 Stat. ment of a disability for which service- 64), if there was basic eligibility for connection has previously been estab- pension on June 30, 1960, under the law lished. in effect on that date and an election is (Authority: 38 U.S.C. 501, 5101) filed prior to May 1, 1969. (6) August 1, 1972, as to pension pay- (p) Liberalizing laws and Department of able under Pub. L. (73 Stat. 432) as Veterans Affairs issues. See § 3.114. amended by Pub. L. 92–328 (86 Stat. 393) (q) New and material evidence (§ 3.156) if there was basic eligibility on that other than service department records—(1) date based on death of a veteran of the Received within appeal period or prior to Spanish-American War and an election appellate decision. The effective date is filed prior to December 1, 1972. will be as though the former decision (k) Error (§ 3.105). Date from which had not been rendered. See §§ 20.1103, benefits would have been payable if the 20.1104 and 20.1304(b)(1) of this chapter. corrected decision had been made on (2) Received after final disallowance. the date of the reversed decision. Date of receipt of new claim or date en- (l) Foreign residence. (See § 3.653). titlement arose, whichever is later. (m) Forfeiture (§§ 3.901, 3.902). Day fol- (r) Reopened claims. (§§ 3.109, 3.156, lowing date of last payment on award 3.157, 3.160(e)) Date of receipt of claim to payee who forfeited. or date entitlement arose, whichever is

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later, except as provided in unless the provisions of § 3.55(a), as ap- § 20.1304(b)(1) of this chapter. plicable, are met. (x) Effective date of determination of in- (Authority: 38 U.S.C. 501) competency (§ 3.353). Date of rating of incompetency. (Not applicable to an in- (s) Renouncement (§ 3.106). Except as competency determination made for provided in § 3.106(c), date of receipt of insurance purposes under 38 U.S.C. new claim. 1922). (t) Whereabouts now known. (See (y) Effective date of determination re- § 3.158(c).) storing competency (§ 3.353). Date shown (u) Void, annulled or terminated mar- by evidence of record that competency riage of a child (38 U.S.C. 5110 (a), (k), (l); was regained. Pub. L. 93–527, 88 Stat. 1702; § 3.55)—(1) (z) Claims based on service in the Wom- Void. Date the parties ceased to co- en’s Air Forces Service Pilots (WASP), or habit or date of receipt of claim, on service in a similarly situated group whichever is later. (Pub. L. 95–202). (1) Original claim: Date (2) Annulled. Date the decree of an- of receipt of claim or date entitlement nulment became final if claim is filed arose, whichever is later, or as other- within 1 year after that date; otherwise wise provided under this section (e.g., date of receipt of claim. paragraph (b)(1) of this section) except (3) Death. Date of death if claim is that no benefits shall be awarded for filed within 1 year after that date; oth- any period prior to November 23, 1977. erwise date of receipt of claim. Bene- (2) Reopened claims received prior to fits are not payable unless the provi- the effective date provided in § 19.2(a) sions of § 3.55(b) of this part are met. of this chapter: Latest of the following (4) Divorce. Date the decree became dates: final if claim is filed within 1 year of (i) November 23, 1977. that date; otherwise date of receipt of (ii) Date entitlement arose. claim. Benefits are not payable unless (iii) One year prior to date of receipt the provisions of § 3.55(b) of this part of reopened claim. are met. (3) Supplemental claims received (v) Termination of remarriage of sur- more than one year after notice of de- viving spouse (38 U.S.C. 5110(a), (k); 38 cision: Latest of the following dates: U.S.C. 103(d) and 3010(l) effective January (i) Date entitlement arose. 1, 1971; § 3.55)—(1) Void. Date the parties (ii) One year prior to date of receipt ceased to cohabit or date of receipt of of a supplemental claim. claim, whichever is the later. [26 FR 1593, Feb. 24, 1961] (2) Annulled. Date the decree of annulment became final if claim is filed EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 3.400, see the List of CFR within 1 year after that date; otherwise Sections Affected, which appears in the date of receipt of claim. Finding Aids section of the printed volume (3) Death. Date of death if claim is and at www.govinfo.gov. filed within 1 year after that date; otherwise date of receipt of claim. Bene- § 3.401 Veterans. fits are not payable unless the provi- Awards of pension or compensation sions of § 3.55(a) of this part are met. payable to or for a veteran will be ef- (4) Divorce. Date the decree became fective as follows: final if claim is filed within 1 year (a) Aid and attendance and housebound after that date; otherwise date of re- benefits. (1) Except as provided in ceipt of claim. Benefits are not payable § 3.400(o)(2), the date of receipt of claim unless the provisions of § 3.55(a) of this or date entitlement arose, whichever is part are met. later. However, when an award of pen- (w) Termination of relationship or con- sion or compensation based on an origi- duct resulting in restriction on payment of nal or supplemental claim is effective benefits (38 U.S.C. 5110(m), effective Janu- for a period prior to the date of receipt ary 1, 1971; §§ 3.50(b)(2) and 3.55). Date of of the claim, any additional pension or receipt of application filed after termi- compensation payable by reason of nation of relationship and after Decem- need for aid and attendance or house- ber 31, 1970. Benefits are not payable bound status shall also be awarded for

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any part of the award’s retroactive pe- (e) Retirement pay (§ 3.750)—(1) Elec- riod for which entitlement to the addition. Date of entitlement if timely tional benefit is established. filed. Subject to prior payments of retirement pay. (Authority: 38 U.S.C. 501; 5110(b)(1), (3)) (2) Waiver. Day following date of discontinuance or reduction of retirement (2) Date of departure from hospital, pay. institution, or domiciliary. (3) Reelection. Day the reelection is (Authority: 38 U.S.C. 501) received by the Department of Vet- erans Affairs. (3) Spouse, additional compensation (f) Service pension (§ 3.3(a)). Date of re- for aid and attendance: Date of receipt ceipt of claim. of claim or date entitlement arose, (g) Tuberculosis, special compensation whichever is later. However, when an for arrested. As of the date the grad- award of disability compensation based uated evaluation of the disability or on an original or supplemental claim is compensation for that degree of dis- effective for a period prior to date of ablement combined with other service- receipt of the claim additional dis- connected disabilities would provide ability compensation payable to a vet- compensation payable at a rate less eran by reason of the veteran’s spouse’s than $67. See § 3.350(g). need for aid and attendance shall also (h) Temporary increase ‘‘General Policy be awarded for any part of the award’s in Rating,’’ 1945 Schedule for Rating Dis- retroactive period for which the abilities—(1) Section 4.29 of this chapter. spouse’s entitlement to aid and attend- Date of entrance into hospital, after 21 ance is established. days of continuous hospitalization for treatment. (Authority: 38 U.S.C. 501; 5110(b)(1), (2)) (2) Section 4.30 of this chapter. Date of entrance into hospital, after discharge (b) Dependent, additional compensation from hospitalization (regular or release or pension for. Latest of the following to non-bed care). dates: (i) Increased disability pension based on (1) Date of claim. This term means attainment of age 78. First day of the the following, listed in their order of month during which veteran attains applicability: age 78. (i) Date of veteran’s marriage, or birth of his or her child, or, adoption of [26 FR 1594, Feb. 24, 1961, as amended at 27 a child, if the evidence of the event is FR 11889, Dec. 1, 1962; 36 FR 4599, Mar. 10, received within 1 year of the event; 1971; 39 FR 17222, Mar. 14, 1974; 41 FR 36493, Aug. 30, 1976; 41 FR 55874, Dec. 23, 1976; 41 FR otherwise. 56804, Dec. 30, 1976; 45 FR 34886, May 23, 1980; (ii) Date notice is received of the de- 54 FR 34981, Aug. 23, 1989; 62 FR 5529, Feb. 6, pendent’s existence, if evidence is re- 1997; 83 FR 32738, July 13, 2018; 84 FR 170, Jan. ceived within 1 year of the Department 18, 2019] of Veterans Affairs request. (2) Date dependency arises. § 3.402 Surviving spouse. (3) Effective date of the qualifying Awards of pension, compensation, or disability rating provided evidence of dependency and indemnity compensa- dependency is received within 1 year of tion to or for a surviving spouse will be notification of such rating action. effective as follows: (a) Additional allowance of dependency (Authority: 38 U.S.C. 5110(f)) and indemnity compensation for children § 3.5(e). Commencing date of surviving (4) Date of commencement of vet- spouse’s award. See § 3.400(c). eran’s award. (Other increases, see (b) Legal surviving spouse entitled. See § 3.400(o). For school attendance see § 3.657. § 3.667.) (c) Aid and attendance and housebound benefits. (1) Date of receipt of claim or (Authority: 38 U.S.C. 5110 (f), (n)) date entitlement arose whichever is (c) Divorce of veteran and spouse. See later. However, when an award of de- § 3.501(d). pendency and indemnity compensation (d) [Reserved] (DIC) or pension based on an original

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or supplemental claim is effective for a (b) Monetary allowance under 38 U.S.C. period prior to date of receipt of the 1805 for an individual suffering from claim, any additional DIC or pension spina bifida who is a child of a Vietnam payable to the surviving spouse by rea- veteran. Except as provided in § 3.814(e), son of need for aid and attendance or an award of the monetary allowance housebound status shall also be award- under 38 U.S.C. 1805 to or for an indi- ed for any part of the award’s retro- vidual suffering from spina bifida who active period for which entitlement to is a child of a Vietnam veteran will be the additional benefit is established. effective either date of birth if claim is received within one year of that date, (Authority: 38 U.S.C. 501; 5110(d)) or the later of the date of claim or the (2) Date of departure from hospital, date entitlement arose, but not earlier institutional or domiciliary care at De- than October 1, 1997. partment of Veterans Affairs expense. This is applicable only to aid and at- (Authority: 38 U.S.C. 1805, 1832, 5110) tendance benefits. Housebound benefits (c) Monetary allowance under 38 U.S.C. may be awarded during hospitalization 1815 for an individual with covered birth at Department of Veterans Affairs ex- defects who is a child of a woman Viet- pense. nam veteran. Except as provided in (Authority: 38 U.S.C. 501) § 3.114(a) or § 3.815(i), an award of the [45 FR 34887, May 23, 1980, as amended at 84 monetary allowance under 38 U.S.C. FR 170, Jan. 18, 2019] 1815 to or for an individual with one or more covered birth defects who is a § 3.403 Children. child of a woman Vietnam veteran will (a) Awards of pension, compensation, be effective as of the date VA received or dependency and indemnity com- the claim (or the date of birth if the pensation to or for a child, or to or for claim is received within one year of a veteran or surviving spouse on behalf that date), the date entitlement arose, of such child, will be effective as fol- or December 1, 2001, whichever is lat- lows: est. (1) Permanently incapable of selfsupport (§ 3.57(a)(3)). In original (Authority: 38 U.S.C. 1815, 1832, 1834, 5110) claims, date fixed by §§ 3.400(b) or (c) or (d) Monetary allowance under 38 U.S.C. 3.401(b). In claims for continuation of 1821 for an individual suffering from payments, 18th birthday if the condi- spina bifida who is a child of a veteran tion is claimed prior to or within 1 with covered service in Korea. Except as year after that date; otherwise from date of receipt of claim. provided in § 3.814(e), an award of the monetary allowance under 38 U.S.C. (2)Majority (§ 13.100). Direct payment to child if competent, from date of ma- 1821 based on the existence of an indi- jority or, date of last payment, which- vidual suffering from spina bifida who ever is the earlier date. is a child of a veteran with covered (3) Posthumous child. Date of child’s service in Korea will be effective from birth if proof of birth is received within either the date of birth if claim is re- 1 year of that date, or if a claim or an ceived within 1 year of that date, or intent to file a claim as set forth in the later of the date of claim or date § 3.155(b), is received within 1 year after entitlement arose, but not earlier than the veteran’s death; otherwise, date of December 16, 2003. claim. (Authority: 38 U.S.C. 1821, 1832, 5110) (Authority: 38 U.S.C. 5110(n)) [26 FR 1594, Feb. 24, 1961, as amended at 27 (4) School attendance. (See § 3.667.) FR 11889, Dec. 1, 1962; 36 FR 4599, Mar. 10, 1971; 38 FR 872, Jan. 5, 1973; 39 FR 20204, June (5) Adopted child. Date of adoption ei- 7, 1974; 41 FR 36493, Aug. 30, 1976; 45 FR 34887, ther interlocutory or final or date of May 23, 1980; 62 FR 51279, Sept. 30, 1997; 67 FR adoptive placement agreement, but not 49587, July 31, 2002; 76 FR 4248, Jan. 25, 2011; earlier than the date from which bene- 79 FR 57697, Sept. 25, 2014; 83 FR 32738, July fits are otherwise payable. 13, 2018]

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§ 3.404 Parents. tification of the decision establishing Awards of additional amounts of service connection. compensation and dependency and in- (b) Resumption of full-dollar rate. (1) demnity compensation based on a par- Date the veteran or survivor returned ent’s need for aid and attendance will to the United States after an absence be effective the date of receipt of claim of more than 60 consecutive days; or or date entitlement arose, whichever is (2) First day of the calendar year fol- later. However, when an award of de- lowing the year in which the veteran or pendency and indemnity compensation survivor was absent from the United based on an original or supplemental States for a total of 183 days or more, claim is effective for a period prior to or the first day after that date that the date of receipt of claim, any additional veteran or survivor returns to the dependency and indemnity compensa- United States. tion payable by reason of need for aid [71 FR 8221, Feb. 16, 2006] and attendance may also be awarded for any part of the award’s retroactive APPORTIONMENTS period for which entitlement to aid and attendance is established. When the § 3.450 General. parent is provided hospital, institu- (a)(1) All or any part of the pension, tional or domiciliary care at Depart- compensation, or emergency officers’ ment of Veterans Affairs expense, the retirement pay payable on account of effective date will be the date of depar- any veteran may be apportioned. ture therefrom. (i) On behalf of his or her spouse, (Authority: 38 U.S.C. 501; 5110(d)) children, or dependent parents if the veteran is incompetent and is being [45 FR 34887, May 23, 1980, as amended at 84 furnished hospital treatment, institu- FR 171, Jan. 18, 2019] tional, or domiciliary care by the § 3.405 Filipino veterans and their sur- United States, or any political subdivi- vivors; benefits at the full-dollar sion thereof. rate. (ii) If the veteran is not residing with Public Laws 106–377 and 108–183, his or her spouse, or if the veteran’s which provide disability compensation children are not residing with the vet- and dependency and indemnity com- eran and the veteran is not reasonably pensation at full-dollar rates to certain discharging his or her responsibility Filipino veterans and their survivors, for the spouse’s or children’s support. are considered liberalizing laws. As (2) Where any of the children of a de- such, the provisions of 38 CFR 3.114(a) ceased veteran are not living with the apply when determining the effective veteran’s surviving spouse, the pen- date of an award. If the requirements sion, compensation, or dependency and of § 3.114(a) are not satisfied, then the indemnity compensation otherwise effective date of an award of benefits at payable to the surviving spouse may be the full-dollar rate under § 3.42 will be apportioned. determined as follows: (Authority: 38 U.S.C. 5307) (a) Initial entitlement to full-dollar rate. The latest of the following: (b) Except as provided in § 3.458(e), no (1) Date entitlement arose; apportionment of disability or death (2) Date on which the veteran or sur- benefits will be made or changed solely vivor first met the residency and citi- because a child has entered active duty zenship or permanent resident alien with the air, military, or naval services status requirements in § 3.42, if VA re- of the United States. ceives evidence of this within one year (c) No apportionment will be made of that date; or where the veteran, the veteran’s spouse (3) Effective date of service connec- (when paid ‘‘as wife’’ or ‘‘as husband’’), tion, provided VA receives evidence surviving spouse, or fiduciary is pro- that the veteran or survivor meets the viding for dependents. The additional residency and citizenship or permanent benefits for such dependents will be resident alien status requirements in paid to the veteran, spouse, surviving § 3.42 within one year of the date of no- spouse, or fiduciary.

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(d) Any amounts payable for children his or her benefits would not provide a under §§ 3.459, 3.460 and 3.461 will be reasonable amount for any equally divided among the children. apportionee. (e) The amount payable for a child in custody of and residing with the sur- [44 FR 45940, Aug. 6, 1979] viving spouse shall be paid to the surviving spouse. Amounts payable to a § 3.452 Situations when benefits may surviving spouse for a child in the sur- be apportioned. viving spouse’s custody but residing Veterans benefits may be appor- with someone else may be apportioned tioned: if the surviving spouse is not reason- (a) If the veteran is not residing with ably contributing to the child’s sup- his or her spouse or his or her children port. and a claim for apportionment is filed (f) Prior to release of any amounts for or on behalf of the spouse or chil- the relationship of the claimant and dren. the dependency of a parent will be fully (b) Pending the appointment of a developed, and the necessary evidence guardian or other fiduciary. secured. (c)(1) Where an incompetent veteran (g) The provisions of § 3.460 are applicable where the surviving spouse is en- without a fiduciary is receiving insti- titled to a higher rate of pension under tutional care by the United States or a the circumstances described in that political subdivision, his or her benefit section. may be apportioned for a spouse or child, or, except as provided in para- [26 FR 1594, Feb. 24, 1961, as amended at 26 graph (c)(2), for a dependent parent, un- FR 7266, Aug. 11, 1961; 27 FR 6974, July 24, 1962; 32 FR 13226, Sept. 19, 1967; 37 FR 6678, less such benefit is paid to a spouse Apr. 1, 1972; 44 FR 45939, Aug. 6, 1979] (‘‘as wife’’ or ‘‘as husband’’) for the use of the veteran and his or her depend- § 3.451 Special apportionments. ents. Without regard to any other provi- (2) Where a married veteran is receiv- sion regarding apportionment where ing section 306 or improved pension and hardship is shown to exist, pension, the amount payable is reduced under compensation, emergency officers’ re- § 3.551(c) because of hospitalization, an tirement pay, or dependency and in- apportionment may be paid to the vet- demnity compensation may be spe- eran’s spouse as provided in § 3.454(b). cially apportioned between the veteran and his or her dependents or the sur- (Authority: 38 U.S.C. 501(a); 5307; 5503(a)) viving spouse and children on the basis of the facts in the individual case as (d) Where additional compensation is long as it does not cause undue hard- payable on behalf of a parent and the ship to the other persons in interest, veteran or his or her guardian neglects except as to those cases covered by or refuses to contribute such an § 3.458(b) and (c). In determining the amount to the support of the parent basis for special apportionment, con- the additional compensation will be sideration will be given such factors as: paid to the parent upon receipt of a Amount of Department of Veterans Af- claim. fairs benefits payable; other resources and income of the veteran and those CROSS REFERENCES: Disappearance of vet- dependents in whose behalf apportion- eran. See § 3.656. Reduction because of hos- ment is claimed; and special needs of pitalization. See § 3.551. Penal institutions. the veteran, his or her dependents, and See § 3.666. the apportionment claimants. The [26 FR 7266, Aug. 11, 1961, as amended at 27 amount apportioned should generally FR 6974, July 24, 1962; 40 FR 21724, May 19, be consistent with the total number of 1975; 44 FR 45940, Aug. 6, 1979; 66 FR 48560, dependents involved. Ordinarily, appor- Sept. 21, 2001; 68 FR 34542, June 10, 2003; 83 FR tionment of more than 50 percent of 32738, July 13, 2018] the veteran’s benefits would constitute undue hardship on him or her while apportionment of less than 20 percent of

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§ 3.453 Veterans compensation or serv- tionment may be made to such vet- ice pension or retirement pay. eran’s spouse upon an affirmative Rates of apportionment of disability showing of hardship. The amount of compensation, service pension or re- the apportionment generally will be tirement pay will be determined under the difference between $90 and the rate § 3.451. payable if pension was being paid under 38 U.S.C. 1521(c) including the addi- [26 FR 7266, Aug. 11, 1961] tional amount payable under 38 U.S.C. § 3.454 Veterans disability pension. 1521(e) if the veteran is so entitled. Apportionment of disability pension will be as follows: (Authority: 38 U.S.C. 5503(a)) (a) Where a veteran with spouse, or [40 FR 36329, Aug. 20, 1975, as amended at 44 child is incompetent and without legal FR 45940, Aug. 6, 1979; 56 FR 65850, 65851, Dec. fiduciary and is maintained in an insti- 19, 1991; 57 FR 7847, Mar. 4, 1992; 68 FR 34542, tution by the United States or any po- June 10, 2003] litical subdivision thereof, $25 monthly will be paid as an institutional award § 3.458 Veteran’s benefits not to the Director of a Department of Vet- apportionable. erans Affairs medical center or chief Veteran’s benefits will not be appor- officer of a non-Department of Vet- tioned: erans Affairs institution for the use of (a) Where the total benefit payable to the veteran, and the balance will be the disabled person does not permit paid to the dependent or dependents. If payment of a reasonable amount to the veteran has no spouse, or child but any apportionee. has a dependent parent, apportionment will be in accordance with § 3.451. (b) Where the spouse of the disabled (b)(1) Where the amount of section person has been found guilty of con- 306 pension payable to a married vet- jugal infidelity by a court having prop- eran under 38 U.S.C. 1521(b), as in effect er jurisdiction. on December 31, 1978, is reduced to $50 (c) For purported or legal spouse of monthly under § 3.551(c), an apportion- the veteran if it has been determined ment may be made to such veteran’s that he or she has lived with another spouse upon an affirmative showing of person and held herself or himself out hardship. The amount of the apportion- openly to the public to be the spouse of ment generally will be the difference such other person, except where such between $50 and the total amount of relationship was entered into in good pension payable on December 31, 1978. faith with a reasonable basis (for example trickery on the part of the veteran) (Authority: 38 U.S.C. 5503(a)) for the spouse believing that the mar- (2) Where the amount of improved riage to the veteran was legally termi- pension payable to a married veteran nated. No apportionment to the spouse under 38 U.S.C. 1521(b) is reduced to $60 will thereafter be made unless there monthly under § 3.551(d) or (e)(2), an ap- has been a reconciliation and later es- portionment may be made to such vet- trangement. eran’s spouse upon an affirmative (d) Where the child of the disabled showing of hardship. The amount of person has been legally adopted by an- the apportionment generally will be other person. the difference between $50 and the rate (e) Where a child enters the active payable if pension was being paid under 38 U.S.C. 1521(c) including the addi- military, air, or naval service, any ad- tional amount payable under 38 U.S.C. ditional amount will be paid to the vet- 1521(e) if the veteran is so entitled. eran unless such child is included in an existing apportionment to an estranged (Authority: 38 U.S.C. 5503(a)) spouse. No adjustment in the apportioned award will be made based on the (3) Where the amount of improved pension payable to a married veteran child’s entry into service. under 38 U.S.C. 1521(b) is reduced to $90 (f)(1) For the spouse, child, father or monthly under § 3.551(e)(1) an appor- mother of a disabled veteran, where

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forfeiture was declared prior to Sep- under these pension programs will be tember 2, 1959, if the dependent is de- at rates approved by the Under Sec- termined by the Department of Vet- retary for Benefits except when the erans Affairs to have been guilty of facts and circumstances in a case war- mutiny, treason, sabotage, or ren- rant special apportionment under dering assistance to an enemy of the § 3.451. United States or its allies. (2) For any dependent of a disabled (Authority: 38 U.S.C. 5307) veteran, or surviving spouse where for- (c) Improved death pension. Apportion- feiture of benefits by a person pri- ment of the benefits provided under marily entitled was declared after Sep- this program shall be made under the tember 1, 1959, by reason of fraud, trea- special apportionment provision of sonable acts, or subversive activities. § 3.451. (Authority: 38 U.S.C. 6103(b); 6104(c); 6105(a)) (Authority: 38 U.S.C. 5307) (g) Until the estranged spouse of a [41 FR 21324, May 25, 1976, as amended at 43 veteran files claim for an apportioned FR 14018, Apr. 4, 1978; 44 FR 45940, Aug. 6, share. If there are any children of the 1979; 61 FR 20727, May 8, 1996] veteran not in his or her custody an apportionment will not be authorized un- § 3.461 Dependency and indemnity compensation. less and until a claim for an apportioned share is filed in their behalf. (a) Conditions under which apportionment may be made. The surviving CROSS REFERENCES: Child. See § 3.57. Child spouse’s award of dependency and in- adopted out of family. See § 3.58. demnity compensation will be appor- [26 FR 7266, Aug. 11, 1961, as amended at 40 tioned where there is a child or chil- FR 21724, May 19, 1975; 44 FR 45940, Aug. 6, dren under 18 years of age and not in 1979; 80 FR 48451, Aug. 13, 2015] the custody of the surviving spouse. The surviving spouse’s award of de- § 3.459 Death compensation. pendency and indemnity compensation (a) Death compensation will be ap- will not be apportioned under this con- portioned if the child or children of the dition for a child over the age of 18 deceased veteran are not in the custody years. of the surviving spouse. (b) Rates payable. (1) The share for (b) The surviving spouse may not be each of the chidren under 18 years of paid less than $65 monthly plus the age, including those in the surviving amount of an aid and attendance allow- spouse’s custody as well as those who ance where applicable. are not in such custody, will be at [40 FR 21725, May 19, 1975, as amended at 44 rates approved by the Under Secretary FR 45940, Aug. 6, 1979] for Benefits except when the facts and circumstances in a case warrant spe- § 3.460 Death pension. cial apportionment under § 3.451. The Death pension will be apportioned if share for the surviving spouse will be the child or children of the deceased the difference between the children’s veteran are not in the custody of the share and the total amount payable. In surviving spouse. Where the surviving the application of this rule, however, spouse’s rate is in excess of $70 month- the surviving spouse’s share will not be ly because of having been the spouse of reduced to an amount less than 50 per- the veteran during service or because cent of that to which the surviving of need for regular aid and attendance, spouse would otherwise be entitled. the additional amount will be added to (2) The additional amount of aid and the surviving spouse’s share. attendance, where applicable, will be (a) Civil, Indian and Spanish-American added to the surviving spouse’s share wars. Where pension is payable under 38 and not otherwise included in the com- U.S.C. 1532, 1534, or 1536 apportionment putation. will be based on the facts in the indi- (3) Where the surviving spouse has vidual case in accordance with § 3.451. elected to receive dependency and in- (b) Section 306 and old-law death pen- demnity compensation instead of death sion. Appointment of benefits provided compensation, the share of dependency

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and indemnity compensation for a payment if necessary to avoid overpay- child or children under 18 years of age ment. will be whichever is the greater: (e) Federal employees’ compensation (i) The apportioned share computed (§ 3.708). The day preceding the date the under paragraph (b)(1) of this section; award of benefits under the Federal or Employees’ Compensation Act became (ii) The share which would have been effective. If children on rolls and sur- payable as death compensation but not viving spouse has primary title, award in excess of the total dependency and to children discontinued same date as indemnity compensation. surviving spouse’s award.

[43 FR 14018, Apr. 4, 1978, as amended at 61 (Authority: 5 U.S.C. 8116) FR 20727, May 8, 1996] (f) Contested claims § 3.402(b) and REDUCTIONS AND DISCONTINUANCES § subpart F of part 20 of this chapter). Date of last payment. § 3.500 General. (g) Death (38 U.S.C. 5112 (a), (b))—(1) The effective date of a rating which Payee (includes apportionee). Last day of results in the reduction or discontinu- month before death. ance of an award will be in accordance (2) Dependent of payee (includes with the facts found except as provided apportionee): in § 3.105. The effective date of reduc- (i) Death prior to October 1, 1982: last tion or discontinuance of an award of day of the calendar year in which death pension, compensation, or dependency occurred. and indemnity compensation for a (ii) Death on or after October 1, 1982: payee or dependent will be the earliest last day of the month in which death of the dates stated in these paragraphs occurred, except that section 306 and unless otherwise provided. Where an old-law pension reductions or termi- award is reduced, the reduced rate will nations will continue to be effective be effective the day following the date the last day of the calendar year in of discontinuance of the greater ben- which death occurred. efit. (3) Veteran receiving retirement pay. Date of death. (Authority: 38 U.S.C. 5112(b)) (h) Dependency of parent (38 U.S.C. 5112; Pub. L. 90–275; §§ 3.4(a), (b)(2), 3.250, (a) Except as otherwise provided (38 3.551(b) and 3.660). See § 3.660. U.S.C. 5112(a)). In accordance with the (i) Election of Department of Veterans facts found. Affairs benefits (§ 3.700 series). Day pre- (b) Error; payee’s or administrative (38 ceding beginning date of award under U.S.C. 5112(b), (9), (10)). (1) Effective other law. date of award or day preceding act, (j) Foreign residence (38 U.S.C. 5308(a)). whichever is later, but not prior to the See § 3.653. date entitlement ceased, on an erro- (k) Fraud (38 U.S.C. 6103(a), (d); neous award based on an act of com- §§ 3.669 and 3.901). Beginning date of mission or omission by a payee or with award or day preceding date of fraudu- the payee’s knowledge. lent act, whichever is later. (2) Except as provided in paragraph (l)–(m) [Reserved] (r) of this section, and § 3.501 (e) and (g), (n) Marriage (or remarriage) (38 U.S.C. date of last payment on an erroneous 101(3), 5112 (b))—(1) Payee (includes award based solely on administrative apportionee). Last day of month before error or error in judgment. marriage. (c) Annual income. See § 3.660. (2) Dependent of payee (includes (d) Apportionment (§§ 3.450 series; apportionee): § 3.556). (1) Except as otherwise pro- (i) Marriage prior to October 1, 1982: vided, date of last payment when rea- last day of the calendar year in which son for apportionment no longer exists. marriage occurred. (2) Where pension was apportioned (ii) Marriage on or after October 1, under § 3.551(c), day preceding date of 1982: last day of the month in which veteran’s release from hospital, unless marriage occurred, except that section overpayment would result; date of last 306 and old-law pension reductions or

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terminations will continue to be effec- CROSS REFERENCE: Failure to return ques- tive the last day of the calendar year tionnaire. See § 3.661(b). in which marriage occurred. [26 FR 1596, Feb. 24, 1961] (3) Conduct of surviving spouse. Last EDITORIAL NOTE: For FEDERAL REGISTER ci- day of month before inception of rela- tations affecting § 3.500, see the List of CFR tionship. Sections Affected, which appears in the Finding Aids section of the printed volume (Authority: 38 U.S.C. 101(4), 501) and at www.govinfo.gov.

(o) Penal institutions. See § 3.666. § 3.501 Veterans. (p) Philippines (38 U.S.C. 107(a)(3); § 3.40). Date of last payment when rec- The effective date of discontinuance ognition of service withdrawn. of pension or compensation to or for a (q) Renouncement (§ 3.106). Last day of veteran will be the earliest of the dates the month in which the renouncement stated in this section. Where an award is received. is reduced, the reduced rate will be payable the day following the date of (r) Service connection (38 U.S.C. discontinuance of the greater benefit. 5112(b)(6); § 3.105). Last day of month (a) Active service pay (38 U.S.C. following 60 days after notice to payee. 5112(b)(3); Pub. L. 87–825; § 3.700(a)). Day Applies to reduced evaluation, and sev- preceding entrance on active duty. See erance of service connection. § 3.654. (s) Treasonable acts or subversive ac- (b) Aid and attendance—(1) Section tivities (38 U.S.C. 6104 and 6105; §§ 3.902, 3.552(b)(1). Last day of calendar month 3.903). (1) Treasonable acts. Date of the following month in which veteran is forfeiture decision or date of last pay- hospitalized at Department of Veterans ment, whichever is earlier. Affairs expense. (2) Subversive activities. Beginning (2) Section 3.552(b)(2). Last day of cal- date of award or day preceding date of endar month following month in which commission of subversive activities for veteran hospitalized at United States which convicted, whichever is later. Government expense. (t) Whereabouts unknown (§§ 3.158, (3) Aid and attendance for spouse. End 3.656). Date of last payment. of month in which award action is (u) Change in law or Department of taken if need for aid and attendance Veterans Affairs issue, or interpretation. has ceased. See § 3.114. (c) Disappearance of veteran. See (v) Failure to furnish evidence of con- § 3.656. tinued eligibility. See § 3.652 (a) and (b). (d) Divorce or annulment (38 U.S.C. (w) Failure to furnish Social Security 5112(b)(2)): number. Last day of the month during (1) Divorce or annulment prior to Oc- which the 60 day period following the tober 1, 1982: last day of the calendar date of VA request expires. year in which divorce or annulment oc- (x) Radiation Exposure Compensation curred. Act of 1990 (§ 3.715). (Compensation or (2) Divorce or annulment on or after dependency and indemnity compensa- October 1, 1982: last day of the month tion only.) Last day of the month pre- in which divorce or annulment oc- ceding the month in which payment curred, except that section 306 and old- under the Radiation Exposure Com- law pension reductions or terminations pensation Act of 1990 is issued. will continue to be effective the last (y) Compensation for certain disabilities day of the calendar year in which di- due to undiagnosed illnesses (§§ 3.105; vorce or annulment occurred. 3.317). Last day of the month in which (e) Employability regained (38 U.S.C. the 60-day period following notice to 5112(b) (5), (6); Pub. L. 87–825; § 3.105)—(1) the payee of the final rating action ex- Pension. Last day of month in which pires. This applies to both reduced discontinuance is approved. evaluations and severance of service (2) Compensation. Last day of month connection. following 60 days after notice to payee. (f) Employment questionnaire, failure to (Authority: Pub. L. 103–446; 38 U.S.C. 501(a)) return. Reduce award to the amount (Authority: 38 U.S.C. 8301) payable for the schedular evaluation

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shown in the current rating as of the or (2), the last day of the month of such day following the date of last payment. readmission. (g) Evaluation reduced (38 U.S.C. (5) Section 3.551(e) (i) Last day of the 5112(b) (5), (6); Pub. L. 87–825; § 3.105)—(1) third calendar month following admis- Pension. Last day of month in which re- sion to domiciliary or nursing home duction or discontinuance is approved. care if veteran without spouse or child (2) Compensation. Last day of month or, though married, is receiving pen- following 60 days after notice to payee. sion at the rate for a veteran without (h) Examination; failure to report. See dependents. (ii) Upon readmission to § 3.655. domiciliary or nursing home care within 6 months of a period of domiciliary (i) Hospitalization—(1) Section 3.551(b). or nursing home care for which pension Last day of the sixth calendar month was reduced under § 3.551(e)(1), the last following admission if veteran without day of the month of such readmission. dependents. (6) Section 3.551(h). (i) Last day of the (2) Section 3.551(c). (i) Last day of the calendar month in which Medicaid pay- second calendar month following ad- ments begin, last day of the month fol- mission to domiciliary care if veteran lowing 60 days after issuance of a without spouse or child or, though prereduction notice required under married, is receiving pension at the § 3.103(b)(2), or the earliest date on rate provided for a veteran without de- which payment may be reduced with- pendents. (ii) Last day of the third cal- out creating an overpayment, which- endar month following admission for ever date is later; or hospital or nursing home care if vet- (ii) If the veteran willfully conceals eran without spouse or child or, though information necessary to make the remarried, is receiving pension at the duction, the last day of the month in rate provided for a veteran without de- which that willful concealment oc- pendents. (iii) Upon readmission to curred. hospital, domiciliary, or nursing home care within 6 months of a period for (Authority: 38 U.S.C. 5503) which pension was reduced under § 3.551(c)(1), the last day of the month (j) [Reserved] (k) See of such readmission. Lump-sum readjustment pay. § 3.700(a)(2). (3) Upon readmission Section 3.552(b) (l) Retirement pay (38 U.S.C. 5112(b)(3); to hospital care within 6 months of a Pub. L. 87–825; § 3.750). Day before effec- period of hospital care for which pen- tive date of retirement pay. sion was affected by the provisions of (m) Temporary increase (38 U.S.C. § 3.552(b)(1) and (2) or § 3.552(k) and dis- 5112(b)(8); § 4.29 of this chapter). Last charge or release was against medical day of month in which hospitalization advice or was the result of disciplinary or treatment terminated, whichever is action, the day preceding the date of earlier, where temporary increase in such readmission. compensation was authorized because (4) Section 3.551(d) (i) Last day of the of hospitalization for treatment. second calendar month following admission to domiciliary care if veteran (Authority: 38 U.S.C. 5505) without spouse or child or, though [26 FR 1596, Feb. 24, 1961, as amended at 27 married, is receiving pension at the FR 11889, Dec. 1, 1962; 29 FR 12368, Aug. 28, rate for a veteran without dependents. 1964; 29 FR 16329, Dec. 5, 1964; 35 FR 2828, Feb. (ii) Last day of the third calendar 11, 1970; 37 FR 6679, Apr. 1, 1972; 38 FR 34115, month following admission for hos- Dec. 11, 1973; 41 FR 55874, Dec. 23, 1976; 44 FR 45941, Aug. 6, 1979; 48 FR 34473, July 29, 1983; pitalization or nursing home care if 53 FR 23236, June 21, 1988; 56 FR 25045, June veteran without spouse or child or, 3, 1991; 56 FR 65849, 65853, Dec. 19, 1991; 66 FR though married, is receiving pension at 48560, Sept. 21, 2001; 68 FR 34542, June 10, 2003; the rate for a veteran without depend- 83 FR 32738, July 13, 2018] ents. (iii) Upon readmission to hospital, § 3.502 Surviving spouses. domiciliary, or nursing home care The effective date of discontinuance within 6 months of a period for which of pension, compensation, or depend- pension was reduced under § 3.551(d)(1) ency and indemnity compensation to

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or for a surviving spouse will be the month in which that willful conceal- earliest of the dates stated in this sec- ment occurred. tion. Where an award is reduced, the (Authority: 38 U.S.C. 5503) reduced rate will be payable the day following the date of discontinuance of [26 FR 1596, Feb. 24, 1961, as amended at 27 FR 11890, Dec. 1, 1962; 33 FR 2995, Feb. 15, the greater benefit. 1968; 35 FR 2828, Feb. 11, 1970; 37 FR 6679, Apr. 1, 1972; 41 FR 55874, Dec. 23, 1976; 48 FR 34473, (Authority: 38 U.S.C. 501) July 29, 1983; 53 FR 23237, June 21, 1988; 58 FR 32445, June 10, 1993] (a) Additional allowance of dependency and indemnity compensation for children § 3.503 Children. (38 U.S.C. 5112(b) § 3.5(e)(3). (1) If mar- (a) The effective date of discontinu- riage occurred prior to October 1, 1982, ance of pension, compensation, or de- the day preceding child’s 18th birthday pendency and indemnity compensation or last day of calendar year in which to or for a child, or to or for a veteran child’s marriage occurred (see § 3.500(n) or surviving spouse on behalf of such (2) and (3)), whichever is earlier. child, will be the earliest of the dates (2) If marriage occurred on or after stated in this section. Where an award October 1, 1982, the day preceding is reduced, the reduced rate will be child’s 18th birthday or last day of the payable the day following the date of month in which marriage occurred (see discontinuance of the greater benefit. § 3.500(n) (2) and (3)) whichever is earlier. (Authority: 38 U.S.C. 501) (b) Pay grade; dependency and indem- (1) Age 18 (or 23) (38 U.S.C. 5112(a); nity compensation (38 U.S.C. 1311(a), § 3.57). Day before 18th (or 23d birth- 5112(b)(10); Pub. L. 91–96, 83 Stat. 144). day). Date of last payment when rate is re- (2) Enters service. Date of last pay- duced because of new certification of ment of apportioned disability benefits pay grade. for child not in custody of estranged (c) Legal surviving spouse entitled. spouse. Full rate payable to veteran. Date of last payment on award to an- No change where payments are being other person as surviving spouse. See made for the child to the veteran, his § 3.657. (her) estranged spouse, his (her) surviving spouse, or to the fiduciary of a (Authority: 38 U.S.C. 501) child not in the surviving spouse’s custody. (d) Marriage. See § 3.500(n). (e) Aid and attendance (§ 3.351(a)). (1) (Authority: 38 U.S.C. 501) Date of last payment, if need for aid (3) Permanently incapable of and attendance has ceased. selfsupport (38 U.S.C. 5112(a), (b)(6); Pub. (2) If hospitalized at Department of L. 87–825; §§ 3.57, 3.950)—(i) Pension. Veterans Affairs expense as a veteran, Date of last payment. the date specified in § 3.552(b) (1) or (3). (ii) Compensation or dependency and (f) Medicaid-covered nursing home care indemnity compensation. Last day of (§ 3.551(i)). (1) Last day of the calendar month following 60 days after notice to month in which Medicaid payments payee. begin, last day of the month following (4) Marriage. See § 3.500(n). 60 days after issuance of a prereduction (5) School attendance. See § 3.667. notice required under § 3.103(b)(2), or (6) Stepchild no longer member of vet- the earliest date on which payment eran’s household (§ 3.57). Last day child may be reduced without creating an was a member of household. overpayment, whichever date is later; (7) Two parent cases (§ 3.703). Day pre- or ceding beginning date of award based (2) If the surviving spouse willfully on service of the other parent. conceals information necessary to (8) Dependents’ educational assistance make the reduction, the last day of the (§§ 3.707, 3.807, and § 21.3023 of this chapter). Day preceding beginning date of educational assistance allowance.

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(9) Surviving spouse becomes entitled. § 3.505 Filipino veterans and their sur- Date of last payment. See § 3.657. vivors; benefits at the full-dollar rate. (Authority: 38 U.S.C. 501) The effective date of discontinuance (10) Interlocutory adoption decree or of compensation or dependency and in- adoptive placement agreement. Date child demnity compensation for a Filipino left custody of adopting parent during veteran or his or her survivor under the interlocutory period or during § 3.42 will be the earliest of the dates adoptive placement agreement, or date stated in this section. Where an award of rescission of the decree or date of is reduced, the reduced rate will be termination of the adoptive placement payable the day following the date of agreement, whichever first occurs. discontinuance of the greater benefit. (b) Monetary allowance under 38 U.S.C. (a) If a veteran or survivor receiving chapter 18 for certain individuals who are benefits at the full-dollar rate under children of Vietnam veterans or children § 3.42 is physically absent from the U.S. of veterans with covered service in Korea. for a total of 183 days or more during The effective date of discontinuance of any calendar year, VA will reduce ben- the monthly allowance under 38 U.S.C. efits to the rate of $0.50 for each dollar chapter 18 will be the last day of the authorized under the law, effective on month before the month in which the the 183rd day of absence from the U.S. death of the individual occurred. (b) If a veteran or survivor receiving (c) Medicaid-covered nursing home care benefits at the full-dollar rate under (§ 3.551(i)). (1) Last day of the calendar § 3.42 is physically absent from the U.S. month in which Medicaid payments for more than 60 consecutive days, VA begin, last day of the month following will reduce benefits to the rate of $0.50 60 days after issuance of a prereduction for each dollar authorized under the notice required under § 3.103(b)(2), or law, effective on the 61st day of the ab- the earliest date on which payment sence. may be reduced without creating an (c) If a veteran or survivor receiving overpayment, whichever date is later; benefits at the full-dollar rate under or § 3.42 loses either U.S. citizenship or (2) If the child or the child’s custo- status as an alien lawfully admitted for dian willfully conceals information permanent residence in the U.S., VA necessary to make the reduction, the will reduce benefits to the rate of $0.50 last day of the month in which that willful concealment occurred. for each dollar authorized under the law, effective on the day he or she no (Authority: 38 U.S.C. 501, 1832, 5112(b)) longer satisfies one of these criteria. [26 FR 1597, Feb. 24, 1961, as amended at 27 (d) If mail to a veteran or survivor FR 11890, Dec. 1, 1962; 30 FR 14983, Dec. 3, receiving benefits at the full-dollar 1965; 34 FR 839, Jan. 18, 1969; 38 FR 872, Jan. rate under § 3.42 is returned to VA by 5, 1973; 41 FR 55875, Dec. 23, 1976; 53 FR 23237, the U.S. Postal Service, VA will make June 21, 1988; 62 FR 51279, Sept. 30, 1997; 67 FR reasonable efforts to determine the 49587, July 31, 2002; 76 FR 4248, Jan. 25, 2011; 83 FR 47275, Sept. 18, 2018] correct mailing address. If VA is unable to determine the veteran’s or sur- § 3.504 Parents; aid and attendance. vivor’s correct address through reasonable efforts, VA will reduce benefits to The effective date of discontinuance the rate of $0.50 for each dollar author- of an increased award because of the ized under law, effective the first day parent’s need for aid and attendance will be the day of last payment if need of the month that follows the month for aid and attendance has ceased. If for which VA last paid benefits. hospitalized at Department of Veterans (Authority: 38 U.S.C. 107) Affairs expense as a veteran the date will be specified in § 3.552(b) (1) or (3). [71 FR 8221, Feb. 16, 2006] (Authority: Pub. L. 92–197, 85 Stat. 660) [37 FR 6679, Apr. 1, 1972]

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HOSPITALIZATION ADJUSTMENTS (3) Readmission following irregular discharge. When a veteran whose award is § 3.551 Reduction because of hos- subject to reduction under this para- pitalization. graph has been discharged or released (a) General. Pension is subject to re- from a VA institution against medical duction as specified below when a vet- advice or as a result of disciplinary ac- eran who has neither spouse, child nor tion, reentry within 6 months from the dependent parent is hospitalized, un- date of previous admission constitutes less the veteran is hospitalized for Han- a continuation of that period of hos- sen’s disease. The provisions of this pitalization and the award will not be section apply to initial periods of hos- reduced prior to the first day of the pitalization and to readmissions fol- seventh calendar month following the lowing discharge from a prior period of month of original admission, exclusive hospitalization. If the veteran is hos- of authorized absences. Reentry 6 pitalized for observation and examina- months or more after such discharge or tion, the date treatment began is con- release shall be considered a new ad- sidered the date of admission. Special mission. rules governing discontinuance of aid and attendance allowance are con- (Authority: 38 U.S.C. 5503(a)) tained in § 3.552. Except as otherwise indicated the terms ‘‘hospitalized’’ and (c) Section 306 pension. (1) Where any ‘‘hospitalization’’ in §§ 3.551 through veteran having neither spouse nor 3.556 mean: child, or any veteran who is married or (1) Hospital treatment in a Depart- has a child and is receiving pension as ment of Veterans Affairs hospital or in a veteran without dependents, is being any hospital at Department of Vet- furnished hospital, nursing home or erans Affairs expense. domiciliary care by the Department of (2) Institutional, domiciliary or nurs- Veterans Affairs, no pension in excess ing home care in a Department of Vet- of $50 monthly shall be paid to or for erans Affairs institution or domiciliary the veteran for any period after the end or at Department of Veterans Affairs of the second full calendar month fol- expense. lowing the month of admission for such care. (Authority: 38 U.S.C. 5503(a)) (b) Old-law pension. (1) Old law pen- (Authority: 38 U.S.C. 5503(a)) sion in excess of $30 monthly for a vet- (2) No pension in excess of $50 month- eran who has neither spouse, child nor ly shall be paid to or for a veteran hav- dependent parent shall continue at the ing neither spouse nor child, or to a full monthly rate until the end of the veteran who is married or has a child sixth calendar month following the and is receiving pension as a veteran month of admission for hospitalization. without dependents, for any period The rate payable will be reduced effec- after the month in which the veteran is tive the first of the seventh calendar readmitted within 6 months of a period month to $30 monthly or 50 percent of of care for which pension was reduced the amount otherwise payable, which- under paragraph (c) (1) of this section. ever is greater. The reduced rate will be effective the first day of the seventh (Authority: 38 U.S.C. 5503(a)) calendar month following admission. Payment of the amount withheld may (3) Where section 306 pension is being be made on termination of hospitaliza- paid to a married veteran at a rate for tion, as provided in § 3.556. (Sec. 306(b)) a veteran without dependents all or (2) Readmission following regular dis- any part of the monthly amount of charge. Where a veteran has been given pension withheld in excess of $50 may an approved discharge or release, read- be apportioned for a spouse as provided mission the next day to the same or in § 3.454(b). any other VA institution begins a new (d) Improved pension prior to February period of hospitalization, unless the 1, 1990. (1) Where any veteran having veteran was released for purposes of ad- neither spouse nor child, or any vet- mission to another VA institution. eran who is married or has a child and

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is receiving pension as a veteran with- (e) Improved pension after January 31, out dependents, is being furnished 1990. (1) Where any veteran having nei- domiciliary care by VA, no pension in ther spouse nor child, or any veteran excess of $60 monthly shall be paid to who is married or has a child and is re- or for the veteran for any period after ceiving pension as a veteran without the end of the second full calendar dependents, is furnished domiciliary or month following the month of admis- nursing home care by VA, no pension sion for such care. (38 U.S.C. 5503(a)) in excess of $90 monthly shall be paid (2) Where any veteran having neither to or for the veteran for any period spouse nor child, or any veteran who is after the end of the third full calendar married or has a child and is receiving month following the month of admis- pension as a veteran without depend- sion for such care. ents, is furnished hospital or nursing home care by VA, no pension in excess (Authority: 38 U.S.C. 5503(a)) of $60 monthly shall be paid to or for the veteran for any period after the end (2) No pension in excess of $90 month- of the third full calendar month fol- ly shall be paid to a veteran having lowing the month of admission for such neither spouse nor child, or to a vet- care. (38 U.S.C. 5503(a)) eran who is married or has a child and (3) No pension in excess of $60 month- is receiving pension as a veteran with- ly shall be paid to or for a veteran hav- out dependents, for any period after ing neither spouse nor child, or to a the month in which the veteran is re- veteran who is married or has a child admitted within six months of a period and is receiving pension as a veteran of domiciliary or nursing home care for without dependents, for any period which pension was reduced under para- after the month in which the veteran is graph (e)(1) of this section. readmitted within 6 months of a period (3) Where improved pension is being of care for which pension was reduced paid to a married veteran at the rate under paragraph (d)(1) or (2) of this sec- prescribed by 38 U.S.C. 1521(b) all or tion. (38 U.S.C. 5503(a)) any part of the rate payable under 38 (4) Where improved pension is being U.S.C. 1521(c) may be apportioned for a paid to a married veteran at the rate spouse as provided in § 3.454(b). prescribed by 38 U.S.C. 1521(b) all or any part of the rate payable under 38 (Authority: 38 U.S.C. 5503(a)) U.S.C. 1521(c) may be apportioned for a spouse as provided in § 3.454(b). (38 (4) For the purposes of paragraph U.S.C. 5503(a)) (e)(1) of this section, if a veteran is fur- (5) The provisions of paragraphs (d) nished hospital care by VA and then is (1), (2), and (3) of this section are not transferred to VA-furnished nursing applicable to any veteran who has a home or domiciliary care, the period of child, but is receiving pension as a vet- hospital care shall not be considered as eran without a dependent because it is nursing home or domiciliary care. reasonable that some part of the Transfers from VA-furnished nursing child’s estate be consumed for the home or domiciliary care to VA-fur- child’s maintenance under 38 U.S.C. nished hospital care then back to nurs- 1522(b). ing home or domiciliary care shall be (6) For the purpose of paragraphs (d) considered as continuous nursing home (1), (2), and (3) of this section, if a vet- or domiciliary care provided the period eran is furnished hospital or nursing of hospitalization does not exceed six home care by VA and then is trans- months. Similarly, if a veteran is ferred to VA-furnished domiciliary transferred from domiciliary or nurs- care, the period of hospital or nursing ing home to a VA hospital and dies home care shall be considered as domi- while so hospitalized, the entire period ciliary care. Similarly, if a veteran is of VA care shall be considered as domi- furnished domiciliary care by VA and ciliary or nursing home care. Nursing then is transferred to VA-furnished home or domiciliary care shall be con- hospital or nursing home care, the pe- sidered as terminated effective the riod of domiciliary care shall be con- date of transfer to a VA hospital if the sidered hospital or nursing home care. veteran is completely discharged from

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VA care following the period of hos- month referred to in paragraphs (d)(3) pitalization or if the period of hos- or (e)(2) of this section, under the fol- pitalization exceeds six months. lowing conditions: (5) Effective February 1, 1990, reduc- (i) The Chief Medical Director, or tions of improved pension based on ad- designee, certifies that the primary missions or readmissions to VA hos- purpose for furnishing hospital or nurs- pitals or any hospital at VA expense ing home care during the additional pe- shall no longer be made except when riod is to provide the veteran with a required under the provisions of 38 CFR prescribed program of rehabilitation 3.552. under chapter 17 of title 38, United (6) The provisions of paragraphs (e) States Code, designed to restore the (1) and (2) of this section are not appli- veteran’s ability to function within the cable to any veteran who has a child, veteran’s family and community; and but is receiving pension as a veteran (ii) The veteran is admitted to a De- without a dependent because it is rea- partment of Veterans Affairs hospital sonable that some part of the child’s or nursing home after October 16, 1981. estate be consumed for the child’s (2) Continued hospitalization for reha- maintenance under 38 U.S.C. 1522(b). bilitation. The reduction required by (f) Computation of period. For pur- paragraph (d) or (e) of this section shall poses of computing periods of hos- not be made for periods after the expi- pitalization in paragraph (c) of this ration of the additional period provided section, authorized absences of 96 hours by paragraph (h)(1) of this section or less will be included as periods of under the following conditions: hospitalization, and those of over 96 (i) The veteran remains hospitalized hours excluded. Also, for purposes of or in a nursing home after the expira- that paragraph, periods of treatment or tion of the additional period provided care of 60 total days will be considered by paragraph (h)(1) of this section; and two calendar months of hospitalization (ii) The Chief Medical Director, or and periods of 90 total days considered designee, certifies that the primary three calendar months, exclusive of au- purpose for furnishing continued hos- thorized absences in excess of 96 hours. pital or nursing home care after the ad- (g) Proof of dependents. The veteran ditional period provided by paragraph will be considered to have neither (h)(1) of this section is to provide the spouse, child nor dependent parent in veteran with a program of rehabilita- the absence of satisfactory proof. tion under chapter 17 of title 38, United Statements contained in the claims States Code, designed to restore the folder concerning the existence of such veteran’s ability to function within the dependents will be considered a prima veteran’s family and community. facie showing. If the necessary evi- (3) Termination of hospitalization for dence is not received: (1) Within 60 days rehabilitation. Pension in excess of $60 after the date of request where the monthly or $90, if reduction is under award is subject to reduction under paragraph (e)(1) payable to a veteran paragraph (b) of this section, or (2) under this paragraph shall be reduced prior to the effective date of reduction the end of the calendar month in which under paragraph (c) of this section, the the primary purpose of hospitalization veteran’s award will be reduced on the or nursing home care is no longer to basis of no dependents. The full rate provide the veteran with a program of may be authorized from the date of re- rehabilitation under chapter 17 of title duction if the necessary evidence is re- 38, United States Code designed to received within 1 year after the date of store the veteran’s ability to function request. within the veteran’s family and com- (h) Hospitalization—(1) General. The munity. reduction required by paragraphs (d) and (e), except as they refer to domi- (Authority: 38 U.S.C. 5503(a)) ciliary care, shall not be made for up to three additional calendar months after (i) Certain beneficiaries receiving Med- the last day of the third month re- icaid-covered nursing home care. This ferred to in paragraphs (d)(2) or (e)(1) of paragraph (i) applies to a veteran with- this section, or after the last day of the out a spouse or child, to a surviving

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spouse without a child, and to a sur- or less. Awards are, however, subject to viving child. Effective November 5, the provisions of § 3.551 (except where 1990, and terminating on the date pro- the disabling condition is Hansen’s dis- vided in 38 U.S.C. 5503(d)(7), if such a ease) . beneficiary is receiving Medicaid-cov- (3) Additional compensation for de- ered nursing home care, no pension or pendents under § 3.4(b)(2) is payable survivors pension in excess of $90 per during hospitalization in addition to month will be paid to or for the bene- the rates authorized by this section. ficiary for any period after the month The rates specified will also be in- in which the Medicaid payments begin. creased by amounts authorized under A beneficiary is not liable for any pen- 38 U.S.C. 1114(k) based on independ- sion paid in excess of the $90 per month ently ratable disability, subject to the by reason of the Secretary’s inability statutory ceiling on the total amount or failure to reduce payments, unless of compensation payable as set forth in that inability or failure is the result of § 3.350(a). willful concealment, by the bene- (b)(1) Where a veteran is admitted for ficiary, of information necessary to hospitalization on or after October 1, make that reduction. 1964, the additional compensation or (Authority: 38 U.S.C. 5503) increased pension for aid and attendance will be discontinued effective the CROSS REFERENCES: Time limits. See last day of the month following the § 3.109. Apportionment. See § 3.400(e). Reduc- tions and discontinuances; general. See month in which the veteran is admit- § 3.500. Incompetents; resumption. See § 3.558. ted for hospitalization at the expense of the Department of Veterans Affairs. [27 FR 7677, Aug. 3, 1962] (2) When a veteran is hospitalized at EDITORIAL NOTE: For FEDERAL REGISTER ci- the expense of the United States Gov- tations affecting § 3.551, see the List of CFR ernment, the additional aid and attend- Sections Affected, which appears in the ance allowance authorized by 38 U.S.C. Finding Aids section of the printed volume and at www.govinfo.gov. 1114(r)(1) or (2) or 38 U.S.C. 1114(t) will be discontinued effective the last day § 3.552 Adjustment of allowance for aid of the month following the month in and attendance. which the veteran is admitted for hos- (a)(1) When a veteran who is already pitalization. entitled to the aid and attendance al- (3) Where a veteran affected by the lowance is hospitalized, the additional provisions of paragraph (b) (1) and (2) compensation or increased pension for or paragraph (k) of this section is dis- aid and attendance shall be discon- charged or released from the hospital tinued as provided in paragraph (b) of against medical advice or as the result this section except as to disabilities of disciplinary action, and is re- specified in paragraph (a)(2) of this sec- admitted to such hospitalization with- tion. (See paragraph (k) of this section in 6 months after that date, the allow- for rules applicable to a veteran who ance, additional compensation, or in- establishes entitlement to the aid and creased pension will be discontinued ef- attendance allowance on or after date fective the day preceding the date of of admission to hospitalization). readmission. A readmission 6 months (2) The allowance for aid and attend- or more after such discharge or release ance will be continued during hos- will be considered as a new admission. pitalization where the disability is par- (c) Reduction will not be made where aplegia involving paralysis of both the same monthly rate of compensa- lower extremities together with loss of tion would be payable without consid- anal and bladder sphincter control, or eration of need for regular aid and at- Hansen’s disease, except where dis- tendance. This can only be determined continuance is required by paragraph after careful review of the current (b)(2) of this section. In addition, in maximum entitlement without regard pension cases only, the aid and attend- to any amount for aid and attendance. ance allowance will be continued where (d) Where entitlement by reason of the pensionable disability is blindness need for regular aid and attendance is (visual acuity 5⁄200 or less) or concentric the basis of the monthly rate under 38 contraction of visual field to 5 degrees U.S.C. 1114(1) the award will be reduced

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to the rate payable under 38 U.S.C. (h) If, because of blindness, a veteran 1114(s). requires regular aid and attendance, (e) Where a veteran is in receipt of but has better vision than ‘‘light per- section 306 pension, the aid and attend- ception only’’ the award under 38 ance allowance shall be reduced to the U.S.C. 1114(m) will be reduced while housebound rate of $61 monthly (or hospitalized to the rate payable under $76.25 if the veteran was age 78 or older 38 U.S.C. 1114(1). on December 31, 1978). Where a veteran (i) If the disability meets the aid and is in receipt of old-law pension, the attendance requirements of 38 U.S.C. total amount payable shall be reduced 1114(l) and the intermediate or next to $100 monthly. Where a veteran is in higher rate was assigned for disability receipt of improved pension, the appli- independently ratable at 50 percent or cable aid and attendance rate shall be 100 percent, the award based on such reduced to the otherwise applicable entitlement will be reduced because of rate under 38 U.S.C. 1521(e). No reduc- hospitalization to the amount payable tion shall be made, however, for any case involving the disabilities specified under 38 U.S.C. 1114(s). in paragraph (a)(2) of this section. (j) The section 306 pension aid and at- (f) Where entitlement to the rate in tendance allowance authorized by 38 U.S.C. 1114(o) is based in part on § 3.252(f) is subject to reduction for hos- need for regular aid and attendance re- pitalization under the provisions of duction because of being hospitalized this section in the same manner as the will be to the rate payable for the regular section 306 pension aid and at- other conditions shown. tendance allowance. The amount pay- (g) Where a veteran entitled to one of able shall not be reduced to less than the rates under 38 U.S.C. 1114 (l), (m), the housebound rate of $61 monthly (or or (n) by reason of anatomical losses or $76.25 monthly if the veteran was age 78 losses of use of extremities, blindness or older on December 31, 1978). (visual acuity 5/200 or less or light per- (k)(1) This paragraph is applicable to ception only), or anatomical loss of hospitalized veterans who were not en- both eyes is being paid compensation titled to the aid and attendance allow- at the rate under 38 U.S.C. 1114(o) be- ance prior to hospital admission but cause of entitlement to another rate who establish entitlement to it on or under section 1114(l) on account of need after the date of hospital admission. for aid and attendance, the compensa- (2) If the effective date of entitle- tion will be reduced while hospitalized ment to the aid and attendance allow- to the following: ance is on or after the date of admis- (1) If entitlement is under section sion to hospitalization, the aid and at- 1114(l) and in addition there is need for tendance allowance shall not be paid regular aid and attendance for another until the date of discharge or release disability, the award during hos- from hospitalization, unless the aid pitalization will be at the rate under 38 and attendance allowance is based on a U.S.C. 1114(m) since the disability requiring aid and attendance is 100 per- disability specified in paragraph (a)(2) cent disabling. of this section. If the aid and attendance allowance is based on a disability (Authority: 38 U.S.C. 1114(p)) specified in paragraph (a)(2) of this section, the aid and attendance allowance (2) If entitlement is under section shall be paid during hospitalization. 1114(m), at the rate under 38 U.S.C. (3) If the aid and attendance allow- 1114(n). ance is not payable to a veteran under (3) If entitlement is under section paragraph (k)(2) of this section, the 1114(n), the rate under 38 U.S.C. 1114(o) veteran shall receive the appropriate would be continued, since the dis- reduced rate under paragraphs (d) ability previously causing the need for regular aid and attendance would then be totally disabling entitling the veteran to the maximum rate under 38 U.S.C. 1114(p).

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through (j) of this section while hos- the request of the Director of the hospitalized. pital, center or domiciliary, where this action is necessary to meet the vet- (Authority: 38 U.S.C. 5503(c)) eran’s financial needs, if the veteran [28 FR 1588, Feb. 20, 1963, as amended at 30 has been hospitalized for more than 6 FR 14983, Dec. 3, 1965; 32 FR 13226, Sept. 19, months and the periods of absence ex- 1967; 37 FR 19133, Sept. 19, 1972; 38 FR 34115, Dec. 11, 1973; 41 FR 55875, Dec. 23, 1976; 44 FR ceed a total of 30 days. 22721, Apr. 17, 1979; 44 FR 45941, Aug. 6, 1979; (d) Irregular discharge. When a com- 46 FR 31011, June 12, 1981; 46 FR 47541, Sept. petent veteran is given an irregular 29, 1981; 68 FR 34542, June 10, 2003; 83 FR discharge, the full rate will be restored 20737, May 8, 2018] effective the date of release from the hospital. Payment of any amount with- §§ 3.553–3.555 [Reserved] held under § 3.551(b) will not be author- § 3.556 Adjustment on discharge or re- ized until the expiration of 6 months lease. after termination of hospitalization (a) Temporary Absence—30 days. (1) unless the prior release is changed to a Where a competent veteran whose regular release. However, amounts not award was reduced under § 3.551(b) is paid under paragraph (c) of this section placed on non-bed care status or other covering absence of less than 30 days authorized absence of 30 days or more where the award was reduced under the full monthly rate, excluding any § 3.551(c) will be authorized imme- allowance for regular aid and attend- diately. ance, will be restored effective the date (e) Regular discharge. When a veteran, of reduction. The full monthly rate for either competent or incompetent, is an incompetent veteran, or for a com- given a regular discharge or release, petent veteran whose pension was re- the full rate, including any allowance duced under § 3.551(c), will be restored for regular aid and attendance will be effective the date of departure from the restored effective the date of release hospital unless it is determined that from the hospital, subject to prior pay- apportionment for a spouse should be ments. The award will be based on the continued. In all instances, any allow- most recent rating and, where the ance for regular aid and attendance award was reduced under § 3.551(b), will will be restored effective the date of include, in the case of a competent vet- departure from the hospital. eran, any amounts withheld because of (2) Upon the veteran’s return to the hospitalization. The amount withheld hospital, an award which is subject to for an incompetent veteran will not be reduction under § 3.551 (b) or (c) will authorized until the expiration of 6 again be reduced effective the date of months following a rating of com- the veteran’s return to the hospital. In petency by VA. Any institutional all instances, any allowance for regular award will be discontinued effective aid and attendance will be discon- date of last payment, as provided in tinued, if in order, effective the date of § 3.501(j). Where an apportionment the veteran’s return to the hospital. made under § 3.551(c) is not continued, (b) Temporary absence—less than 30 the apportionment will be discontinued days. A temporary absence of less than effective the day preceding the date of 30 days, including the day of departure, the veteran’s release from the hospital, will not require adjustment of the or, if adjusted, effective the date of the award. This applies to any approved ab- veteran’s release from the hospital, un- sence. Any allowance for regular aid less an overpayment would result. In and attendance for such periods will be the excepted cases, the awards to the authorized after the veteran has been veteran and apportionee will be ad- discharged from the hospital. justed as of date of last payment. (c) Adjustment based on need. Where an award of pension was reduced under (Authority: 38 U.S.C. 5503) § 3.551(c), the full rate covering absences of less than 30 days may be re- (f) Types of discharges. A discharge is stored, subject to prior payments, prior considered regular if it is granted be- to discharge from hospitalization at cause of having received maximum

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hospital benefits. A discharge for dis- where a claim is filed by an additional ciplinary reasons or because of the pa- dependent who has apparent entitle- tient’s refusal to accept, neglect of or ment which, if established, would re- obstruction of treatment; refusal to ac- quire reduction of pension, compensa- cept transfer, or failure to return from tion or dependency and indemnity com- authorized absence, is considered irreg- pensation being paid to another de- ular. pendent, payments to the person or persons on the rolls will be reduced as [27 FR 7678, Aug. 3, 1962, as amended at 27 FR 8794, Sept. 1, 1962; 38 FR 34115, Dec. 11, 1973; follows: 39 FR 34532, Sept. 26, 1974; 40 FR 45169, Oct. 1, (1) Where benefits would be payable 1975; 44 FR 22721, Apr. 17, 1979; 44 FR 45942, from a date prior to the date of filing Aug. 6, 1979; 50 FR 50616, Dec. 11, 1985] claim, the reduction will be effective from the date of potential entitlement § 3.557 [Reserved] of the additional dependent. (2) Where benefits would be payable § 3.558 Resumption and payment of withheld benefits; incompetents from the date of filing claim, the re- with estates that equaled or exceed- duction will be effective the date of re- ed statutory limit. ceipt of the claim by the additional de- (a) Payments for the veteran will be pendent, or date of last payment, resumed and apportionment awards whichever is later. discontinued under the applicable pro- If entitlement of the additional de- visions of § 3.556(a), (d), and (e) upon au- pendent is not established, benefits thorized absence from the hospital for previously being paid will be resumed, 30 days or more or a regular or irreg- if otherwise in order, commencing the ular discharge or release. Care and day following the effective date of re- maintenance payments to an institu- duction. tion will not be made for any period (b) New awards. If the additional de- the veteran is not receiving such care pendent is found to be entitled, the full and maintenance. rate payable will be authorized effec- (b) Any amount not paid because of tive the date of entitlement. the provisions of former § 3.557(b) (as in (c) Retroactive DIC award to a school effect prior to December 27, 2001), and child—(1) General. If DIC (dependency any amount of compensation or retire- and indemnity compensation) is being ment pay withheld pursuant to the pro- currently paid to a veteran’s child or visions of § 3.551(b) (and/or predecessor children under 38 U.S.C. 1313(a), and regulatory provisions) as it was con- DIC is retroactively awarded to an ad- stituted prior to August 1, 1972, and not ditional child of the veteran based on previously paid because of the provi- school attendance, the full rate pay- sions of former § 3.557(b) (as in effect able to the additional child shall be prior to December 27, 2001), will be awarded the first of the month fol- awarded to the veteran if he or she is lowing the month in which the award subsequently rated competent by VA to the additional child is approved. The for a period of not less than six rate payable under the current award months. shall be reduced effective the date the full rate is awarded to the additional (Authority: 38 U.S.C. 5503) child. The rate payable to the addi- [27 FR 7679, Aug. 3, 1962, as amended at 36 FR tional child for periods prior to the 25225, Dec. 30, 1971; 38 FR 34116, Dec. 11, 1973; date the full rate is awarded shall be 40 FR 45170, Oct. 1, 1975; 41 FR 18412, May 4, the difference between the rate payable 1976; 50 FR 50617, Dec. 11, 1985; 58 FR 34224, for all the children and the rate that June 24, 1993; 66 FR 48560, Sept. 21, 2001; 68 FR 34542, June 10, 2003] was payable before the additional child established entitlement. § 3.559 [Reserved] (2) Applicability. The provisions of paragraph (c)(1) of this section are ap- ADJUSTMENTS AND RESUMPTIONS plicable only when the following conditions are met: § 3.650 Rate for additional dependent. (i) The additional child was receiving (a) Running awards. Except as pro- DIC under 38 U.S.C. 1313(a) prior to at- vided in paragraph (c) of this section taining age 18; and

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(ii) DIC for the additional child was bility factors which established enti- discontinued on or after attainment of tlement to the benefit being paid con- age 18; and tinue to exist. The beneficiary will be (iii) After DIC has been discontinued, advised at the time of the request that the additional child reestablishes enti- the certification must be furnished tlement to DIC under 38 U.S.C. 1313(a) within 60 days from the date of the re- based on attendance at an approved quest therefor and that failure to do so school and the effective date of entitle- will result in the reduction or termi- ment is prior to the date the Depart- nation of benefits. ment of Veterans Affairs receives the (1) If the certification is not received additional child’s claim to reestablish within 60 days from the date of the re- entitlement. quest, the eligibility factor(s) for which certification was requested will (Authority: 38 U.S.C. 1313(b)) be considered to have ceased to exist as (3) Effective date. This paragraph is of the end of the month in which it was applicable to DIC paid after September last shown by the evidence of record to 30, 1981. If DIC is retroactively awarded have existed. For purposes of this para- for a period prior to October 1, 1981, graph, the effective date of reduction payment for the period prior to Octo- or termination of benefits will be in ac- ber 1, 1981 shall be made under para- cordance with §§ 3.500 through 3.504 as graph (a) of this section and payment in effect on the date the eligibility fac- for the period after September 30, 1981, tor(s) is considered to have ceased to shall be made under this paragraph. exist. The claimant will be advised of [29 FR 9564, July 15, 1964, as amended at 47 the proposed reduction or termination FR 24551, June 7, 1982] of benefits and the date the proposed action will be effective. An additional § 3.651 Change in status of dependents. 60 days from the date of notice of the Except as otherwise provided: proposed action will be provided for the (a) A payee who becomes entitled to claimant to respond. pension, compensation, or dependency (2) If the certification is not received and indemnity compensation or to a within the additional 60 day period, the greater rate because payment of that proposed reduction or termination of benefit to another payee has been re- benefits will be put into effect. duced or discontinued will be awarded (b) When the required certification is the benefit or increased benefit with- received, benefits will be adjusted, if out the filing of a new claim. necessary, in accordance with the facts (b) The commencement or adjust- found. ment will be effective the day fol- (Authority: 38 U.S.C. 501) lowing the reduction or discontinuance of the award to the other payee if the CROSS REFERENCES: Employment Question- necessary evidence is received in the naire, failure to return. See § 3.501(f). Income Department of Veterans Affairs within and Net Worth Questionnaires. See § 3.661. 1 year from the date of request there- [52 FR 43063, Nov. 9, 1987] for; otherwise from the date of receipt of a new claim. § 3.653 Foreign residence. (c) The rate for the persons entitled (a) General. Pension, compensation, will be the rate that would have been or dependency and indemnity com- payable if they had been the only origi- pensation is not payable to an alien nal persons entitled. who is located in the territory of or [26 FR 1598, Feb. 24, 1961, as amended 27 FR under the control of an enemy of the 11890, Dec. 1, 1962; 30 FR 133, Jan. 7, 1965] United States or of its allies. The benefit may, however, be paid to the de- § 3.652 Periodic certification of contin- pendents of such alien, but not in ex- ued eligibility. cess of the amount which would be pay- Except as otherwise provided: able to the dependent if the alien were (a) Individuals to whom benefits are dead. being paid are required to certify, when requested, that any or all of the eligi- (Authority: 38 U.S.C. 5308)

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(b) Retroactive payments. Any amount ments will be made for any period prior not paid to an alien under this section, to the date of filing a new claim. together with any amounts placed to (Authority: 38 U.S.C. 5309(b)) the alien’s credit in the special deposit account in the Treasury or covered [26 FR 1599, Feb. 24, 1961, as amended at 31 into the Treasury as miscellaneous re- FR 13172, Oct. 12, 1966; 47 FR 24551, June 7, ceipts under 31 U.S.C. 123–128 will be 1982] paid to him or her on the filing of a § 3.654 Active service pay. new claim. Such claim should be supported with evidence that the alien has (a) General. Pension, compensation, not been guilty of mutiny, treason, or retirement pay will be discontinued sabotage or rendering assistance to an under the circumstances stated in enemy, as provided in § 3.902(a). § 3.700(a)(1) for any period for which the veteran received active service pay. (Authority: 38 U.S.C. 5309) For the purposes of this section, active service pay means pay received for ac- (c) Treasury Department list. This tive duty, active duty for training or paragraph is applicable to claims for inactive duty training. benefits for aliens residing in countries (b) Active duty. (1) Where the veteran identified on the list established by the returns to active duty status, the Secretary of the Treasury as countries award will be discontinued effective to which checks could not be delivered the day preceding reentrance into ac- with reasonable assurance that the tive duty status. If the exact date is payee would actually receive and be not known, payments will be discon- able to negotiate a check for full value. tinued effective date of last payment (1) Evidence requests. Requests for evi- and as of the correct date when the dence to establish either basic or con- date of reentrance has been ascertained tinued entitlement will not be made from the service department. where such evidence would be obtained (2) Payments, if otherwise in order, from a country on the Treasury De- will be resumed effective the day fol- partment list unless the claimant re- lowing release from active duty if quests that checks be sent to him or claim for recommencement of pay- her in care of a U.S. Foreign Service ments is received within 1 year from post in a country which is not on the the date of such release: otherwise pay- list. ments will be resumed effective 1 year (2) Awards. Payments for a claimant prior to the date of receipt of a new residing in a country included in the claim. Prior determinations of service Treasury Department list will not be connection will not be disturbed except authorized unless the claimant re- as provided in § 3.105. Compensation quests that checks be sent to him or will be authorized based on the degree of disability found to exist at the time her in care of a U.S. Foreign Service the award is resumed. Disability will post in a country which is not on the be evaluated on the basis of all facts, list. including records from the service de- (3) Retroactive payments. Where award partment relating to the most recent action is authorized under paragraph period of active service. If a disability (c)(2) of this section, or a new claim is incurred or aggravated in the second has been filed after a country has been period of service, compensation for removed from the Treasury Depart- that disability cannot be paid unless a ment list, all benefits to which the claim therefor is filed. payee is otherwise entitled will be paid (c) Training duty. Prospective adjust- as provided in paragraph (b) of this sec- ment of awards may be made where the tion. There is no time limit for filing veteran waives his or her Department claim. of Veterans Affairs benefit covering an- (d) Germany and Japan. Where pay- ticipated receipt of active service pay ments were discontinued before July 1, because of expected periods of active 1954, because the payee was a citizen or duty for training or inactive duty subject of Germany or Japan, no pay- training. Where readjustment is in

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order because service pay was not re- tion or to present evidence that pay- ceived for expected training duty, ret- ment for the disability or disabilities roactive payments may be authorized for which the reexamination was sched- if a claim for readjustment is received uled should not be discontinued or re- within 1 year after the end of the fiscal duced. year for which payments were waived. (2) If there is no response within 60 [27 FR 11890, Dec. 1, 1962] days, or if the evidence submitted does not establish continued entitlement, § 3.655 Failure to report for Depart- payment for such disability or disabil- ment of Veterans Affairs examina- ities shall be discontinued or reduced tion. as of the date indicated in the (a) General. When entitlement or con- pretermination notice or the date of tinued entitlement to a benefit cannot last payment, whichever is later. be established or confirmed without a (3) If notice is received that the current VA examination or reexamination and a claimant, without good claimant is willing to report for a reex- cause, fails to report for such examina- amination before payment has been tion, or reexamination, action shall be discontinued or reduced, action to ad- taken in accordance with paragraph (b) just payment shall be deferred. The re- or (c) of this section as appropriate. examination shall be rescheduled and Examples of good cause include, but the claimant notified that failure to are not limited to, the illness or hos- report for the rescheduled examination pitalization of the claimant, death of shall be cause for immediate dis- an immediate family member, etc. For continuance or reduction of payment. purposes of this section, the terms ex- When a claimant fails to report for amination and reexamination include pe- such rescheduled examination, pay- riods of hospital observation when re- ment shall be reduced or discontinued quired by VA. as of the date of last payment and shall (b) Original or supplemental claim, or not be further adjusted until a VA ex- claim for increase. When a claimant fails amination has been conducted and the to report for an examination scheduled report reviewed. in conjunction with an original com- (4) If within 30 days of a pensation claim, the claim shall be pretermination notice issued under rated based on the evidence of record. paragraph (c)(1) of this section the When the examination was scheduled in conjunction with any other original claimant requests a hearing, action to claim, a supplemental claim for a ben- adjust payment shall be deferred as set efit which was previously disallowed, forth in § 3.105(i)(1) of this part. If a or a claim for increase, the claim shall hearing is requested more than 30 days be denied. after such pretermination notice but (c) Running award. (1) When a claim- before the proposed date of discontinu- ant fails to report for a reexamination ance or reduction, a hearing shall be and the issue is continuing entitle- scheduled, but payment shall neverthe- ment, VA shall issue a pretermination less be discontinued or reduced as of notice advising the payee that pay- the date proposed in the ment for the disability or disabilities pretermination notice or date of last for which the reexamination was sched- payment, whichever is later, unless in- uled will be discontinued or, if a min- formation is presented which warrants imum evaluation is established in part a different determination. When the 4 of this title or there is an evaluation claimant has also expressed willingness protected under § 3.951(b) of this part, to report for an examination, however, reduced to the lower evaluation. Such the provisions of paragraph (c)(3) of notice shall also include the prospec- this section shall apply. tive date of discontinuance or reduction, the reason therefor and a state- (Authority: 38 U.S.C. 501) ment of the claimant’s procedural and CROSS REFERENCES: Procedural due process appellate rights. The claimant shall be and appellate rights: See § 3.103. Examina- allowed 60 days to indicate his or her tions: See § 3.326. Reexaminations: See § 3.327. willingness to report for a reexamina-

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Resumption of rating when veteran subse- changed. Payment for the spouse or quently reports for VA examination: See children will be effective the day fol- § 3.330. lowing the date of last payment to the [55 FR 49521, Nov. 29, 1990; 58 FR 46865, Sept. veteran if a claim is received within 1 3, 1993; 80 FR 18117, Apr. 3, 2015; 84 FR 171, year after that date; otherwise from Jan. 18, 2019] date of receipt of a claim. The total amount payable will be the lesser of § 3.656 Disappearance of veteran. these amounts: (a) When any veteran has disappeared (1) The service death pension rate if for 90 days or more and his or her the veteran was receiving service pen- whereabouts remain unknown to the sion or the improved death pension members of his or her family and the rate if the veteran was receiving sec- Department of Veterans Affairs, dis- tion 306 or improved pension. ability compensation which he or she (2) The amount of pension payable to was receiving or entitled to receive the veteran at the time of disappear- may be paid to or for his or her spouse, ance. children and parents, effective the day following the date of last payment to (Authority: 38 U.S.C. 1507) the veteran if a claim is received with- [26 FR 1599, Feb. 24, 1961, as amended at 27 in 1 year after that date; otherwise FR 11891, Dec. 1, 1962; 30 FR 6649, May 14, from the date of receipt of a claim. The 1965; 40 FR 14313, Mar. 31, 1975; 44 FR 45942, total amount payable will be the lesser Aug. 6, 1979] of these amounts: (1) Dependency and indemnity com- § 3.657 Surviving spouse becomes enti- pensation. tled, or entitlement terminates. (2) Amount of compensation payable Where a surviving spouse establishes to the veteran at the time of disappear- entitlement to pension, compensation, ance, subject to authorized insurance or dependency and indemnity com- deductions. pensation, an award to another person (b) Where a veteran’s whereabouts as surviving spouse, or for a child or become known to the Department of children as if there were no surviving Veterans Affairs after an award to de- spouse will be discontinued or adjusted pendents has been made as provided in as provided in this section. this section, the award to the depend- (a) Surviving spouse’s awards. For pe- ents will be discontinued effective date riods on or after December 1, 1962, of last payment, and appropriate ac- where a legal surviving spouse estab- tion will be taken to adjust the vet- lishes entitlement after payments have eran’s award in accordance with the been made to another person as sur- facts found. viving spouse, the full rate payable to the legal surviving spouse will be au- (Authority: 38 U.S.C. 1158) thorized effective the date of entitle- (c) Awards to dependents will not be ment. Payments to the former payee continued under this section in any will be discontinued as follows: case where the facts are such as to (1) Where benefits are payable to the bring into effect the presumption of legal surviving spouse from a date death under § 3.212. prior to the date of filing claim, the (d) When any veteran has disappeared award to the former payee will be ter- for 90 days or more and the veteran’s minated the day preceding the effec- whereabouts remain unknown to mem- tive date of the award to the legal sur- bers of the veteran’s family and the De- viving spouse. partment of Veterans Affairs, any im- (2) Where benefits are payable to the proved pension, section 306 or service legal surviving spouse from the date of pension which the veteran was receiv- filing claim, the award to the former ing or entitled to receive may be paid payee will be terminated effective the to or for the spouse or children. The date of receipt of the claim or date of status of the veteran at the time of dis- last payment, whichever is later. appearance, with respect to permanent (b) Children’s awards. (1) Where a sur- and total disability, income and net viving spouse establishes entitlement worth will be presumed to continue un- and:

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(i) Payments were being made for a on military service, have been paid to child or children at a lower monthly the same payee based on the same rate than that provided where there is death, the award of dependency and in- a surviving spouse, the award to the demnity compensation will be made surviving spouse will be effective the subject to an offset of payments of date provided by the applicable law, death compensation or benefits under and will be the difference between the the Federal Employees’ Compensation rate paid for the children and the rate Act over the same period. payable for the surviving spouse and (b) When an award of dependency and children. The full rate will be payable indemnity compensation is made cov- for the surviving spouse effective the ering a period for which death benefits day following the date of last payment have been paid to the same payee based for the children; on the death of another spouse the (ii) Payments were being made for a award will be made subject to an offset child or children at the same or higher of payments of death pension or com- monthly rate than that provided where pensation, or dependency and indem- there is a surviving spouse, the award nity compensation over the same pe- to the surviving spouse will be effec- riod in the case of the other spouse. tive the day following the date of last payment on the awards on behalf of the (Authority: 38 U.S.C. 103(d)(2), 5304(b)(3)) children. [41 FR 17387, Apr. 26, 1976] (2) Where a surviving spouse has received benefits after entitlement was § 3.659 Two parents in same parental terminated and, line. (i) The child or children were entitled The provisions of this section are ap- to a lower monthly rate, the award to plicable for periods commencing on or the surviving spouse will be amended after January 1, 1957 in cases involving to authorize payment at the rate pro- payments of death compensation or de- vided for the children as if there were pendency and indemnity compensation, no surviving spouse, covering the pe- and in addition, for periods com- riod from the date the surviving mencing on or after June 9, 1960, in spouse’s entitlement terminated to the cases involving payments of death pen- date of last payment. The award for sion based on death on or after that the child or children will be made ef- date. fective the following day. (a) If death pension, compensation or (ii) The child or children were enti- dependency and indemnity compensa- tled to a higher monthly rate, the tion is payable based on the service of award to the surviving spouse will be one parent, an award of such benefits discontinued effective date of last pay- to or on account of a child will be made ment. The award to the children will be subject to any payments of these bene- effective the day following the date the fits made to or on account of that child surviving spouse’s entitlement termi- over the same period of time based on nated and will be the difference be- the service of another parent in the tween the rate payable for the children same parental line. and the rate paid on the surviving (b) Any reduction or discontinuance spouse’s award. The full rate will be of an award to the child or to a sur- payable for the children effective the viving spouse will be effective the day day following the date of last payment preceding the commencing date of to the surviving spouse. death pension, compensation, or de- [39 FR 20204, June 7, 1974, as amended at 44 pendency and indemnity compensation FR 45942, Aug. 6, 1979] or, under the circumstances described in § 3.707, the commencing date of de- § 3.658 Offsets; dependency and indem- pendents’ educational assistance under nity compensation. 38 U.S.C. ch. 35, to or on account of the (a) When an award of dependency and child based on the service of another indemnity compensation is made cov- parent in the same parental line. Any ering a period for which death com- increase to a surviving spouse or an- pensation or benefits under the Federal other child will be effective the com- Employee’s Compensation Act, based mencing date of the award to the child.

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CROSS REFERENCE: Two-parent cases. See ment, divorce, or death, the award § 3.503(a)(7). Two parents in same parental shall be reduced or discontinued effec- line. See § 3.703. tive the last day of the calendar year [27 FR 4917, May 25, 1962, as amended at 29 in which the increase occurred or de- FR 9564, July 15, 1964; 41 FR 17387, Apr. 26, pendency ceased. Except as noted in 1976] this subparagraph for section 306 or old-law pension, where the dependency § 3.660 Dependency, income and es- of another person ceased on or after tate. October 1, 1982, due to marriage, annul- (a) Reduction or discontinuance—(1) ment, divorce or death, the reduction General. A veteran, surviving spouse or or discontinuance shall be effective the child who is receiving pension, or a last day of the month in which depend- parent who is receiving compensation ency ceased. or dependency and indemnity compensation must notify the Department (Authority: 38 U.S.C. 5112(b)) of Veterans Affairs of any material (3) Overpayments. Overpayments cre- change or expected change in his or her ated by retroactive discontinuance of income or other circumstances which benefits will be subject to recovery if would affect his or her entitlement to not waived. Where dependency and in- receive, or the rate of, the benefit demnity compensation was being paid being paid. Such notice must be fur- to two parents living together, an over- nished when the recipient acquires payment will be established on the knowledge that he or she will begin to award to each parent. receive additional income or when his (b) Award or increase; income. Where or her marital or dependency status pension or dependency and indemnity changes. In pension claims subject to compensation was not paid for a par- § 3.252(b) or § 3.274 and in compensation ticular 12–month annualization period claims subject to § 3.250(a)(2), notice because the claim was disallowed, an must be furnished of any material in- award was deferred under § 3.260(b) or crease in corpus of the estate or net § 3.271(f), payments were discontinued worth. or made at a lower rate based on an- (2) Effective dates. Where reduction or ticipated or actual income, benefits discontinuance of a running award of otherwise payable may be authorized section 306 pension or old-law pension commencing the first of a 12–month is required because dependency of an- annualization period as provided in other person ceased due to marriage, this paragraph. In all other cases, bene- annulment, divorce or death, or be- fits may not be authorized for any pe- cause of an increase in income, which riod prior to the date of receipt of a increase could not reasonably have new claim. been anticipated based on the amount (1) Anticipated income. Where pay- actually received from that source the ments were not made or were made at year before, the reduction or dis- a lower rate because of anticipated in- continuance shall be made effective the come, pension or dependency and in- end of the year in which the increase demnity compensation may be awarded occurred. Where reduction or dis- or increased in accordance with the continuance of a running award of im- facts found but not earlier than the be- proved pension or dependency and in- ginning of the appropriate 12–month demnity compensation is required be- annualization period if satisfactory cause of an increase in income, the re- evidence is received within the same or duction or discontinuance shall be the next calendar year. made effective the end of the month in which the increase occurred. Where re- (Authority: 38 U.S.C. 5110(h)) duction or discontinuance of a running (2) Actual income. Where the claim- award of any benefit is required be- ant’s actual income did not permit cause of an increase in net worth or payment, or payment was made at a corpus of estate, because dependency of lower rate, for a given 12–month a parent ceased, or because dependency annualization period, pension or de- of another person ceased prior to Octo- pendency and indemnity compensation ber 1, 1982, due to marriage, annul- may be awarded or increased, effective

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the beginning of the next 12–month compensation will be authorized at the annualization period, if satisfactory lowest appropriate rate or will be with- evidence is received within that period. held, as provided in § 3.260(b) or § 3.271 (c) Increases; change in status. Where (f). there is change in the payee’s marital (b) Failure to return report—(1) Section status or status of dependents which 306 and old-law pension—(i) Discontinu- would permit payment at a higher rate ance. Discontinuance of old-law or sec- and the change in status is by reason of tion 306 pension shall be effective the the claimant’s marriage or birth or last day of the calendar year for which adoption of a child, the effective date income (and net worth in a section 306 of the increase will be the date of the event if the required evidence is re- pension case) was to be reported. ceived within 1 year of the event. (ii) Resumption of benefits. Payment of Where there is a change in dependency old-law or section 306 pension may be status for any reason other than mar- resumed, if otherwise in order, from riage, or the birth or adoption of a the date of last payment if evidence of child, which would permit payment at entitlement is received within the cal- a higher rate, the increased rate will be endar year following the calendar year effective the date of receipt of a claim for which income (and net worth in a or an intent to file a claim as set forth section 306 pension case) was to be re- in § 3.155(b) if the required evidence is ported; otherwise pension may not be received within 1 year of Department paid for any period prior to the date of of Veterans Affairs request. The rate receipt of a new claim. payable for each period will be deter- (2) Improved pension and dependency mined, as provided in §§ 3.260(f) or and indemnity compensation—(i) Dis- 3.273(c). (See § 3.651 as to increase due continuance. Discontinuance of depend- to termination of payments to another ency and indemnity compensation payee. Also see § 3.667 as to increase (DIC) or improved pension shall be ef- based on school attendance.) fective the first day of the 12–month (d) Corpus of estate; net worth. Where annualization period for which income a claim has been finally disallowed or (and net worth in an improved pension terminated because of the corpus of estate and net worth provisions of § 3.263 case) was to be reported or the effec- and entitlement is established on the tive date of the award, whichever is the basis of a reduction in estate or net later date. worth, or a change in circumstances (ii) Adjustment of overpayment. If evi- such as health, acquisition of a depend- dence of entitlement to improved pen- ent, or increased rate of depletion of sion or DIC for any period for which the estate, benefits or increased bene- payment of improved pension or DIC fits will not be paid for any period was discontinued for failure to file an prior to the date of receipt of a new Eligibility Verification Report is re- claim. ceived at any time, payment of im- [30 FR 3354, Mar. 12, 1965, as amended at 44 proved pension or DIC shall be awarded FR 45942, Aug. 6, 1979; 48 FR 34473, July 29, for the period of entitlement for which 1983; 57 FR 59300, Dec. 15, 1992; 79 FR 57697, benefits were discontinued for failure Sept. 25, 2014; 83 FR 47275, Sept. 18, 2018] to file an Eligibility Verification Re- port. § 3.661 Eligibility Verification Reports. (iii) Resumption of benefits. Payment (a) Determination and entitlement. (1) of improved pension and DIC may be Where the report shows a change in in- resumed, if otherwise in order, from come, net worth, marital status, status the date of last payment if evidence of of dependents or change in cir- entitlement is received within the 12– cumstances affecting the application of month annualization period following the net worth provisions, the award the 12–month annualization period for will be adjusted in accordance with which income (and net worth in an im- § 3.660(a)(2). (2) Where there is doubt as to the ex- proved pension case) was to be re- tent of anticipated income payment of ported; otherwise pension or DIC may pension or dependency and indemnity

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not be paid for any period prior to re- (1) A person serving a period of incar- ceipt of a new claim. ceration for conviction of a felony (Authority: 38 U.S.C. 501) committed after October 7, 1980. (2) A person serving a period of incar- [30 FR 3355, Mar. 12, 1965, as amended at 44 ceration after September 30, 1980 (re- FR 45942, Aug. 6, 1979; 46 FR 55098, Nov. 6, 1981; 57 FR 59300, Dec. 15, 1992] gardless of when the felony was committed) when the following conditions §§ 3.662–3.664 [Reserved] are met: (i) The person was incarcerated on § 3.665 Incarcerated beneficiaries and October 1, 1980; and fugitive felons—compensation. (ii) An award of compensation or DIC (a) General. Any person specified in is approved after September 30, 1980. paragraph (c) of this section who is in- (3) A veteran who, on October 7, 1980, carcerated in a Federal, State or local was incarcerated in a Federal, State, or penal institution in excess of 60 days local penal institution for a felony for conviction of a felony will not be committed before that date, and who paid compensation or dependency and remains so incarcerated for a convic- indemnity compensation (DIC) in ex- tion of that felony as of December 27, cess of the amount specified in para- 2001. graph (d) of this section beginning on (d) Amount payable during incarcer- the 61st day of incarceration. VA will ation—(1) Veteran rated 20 percent or inform a person whose benefits are subject to this reduction of the rights of more. A veteran to whom the provisions the person’s dependents to an appor- of paragraphs (a) and (c) of this section tionment while the person is incarcer- apply with a service-connected dis- ated, and the conditions under which ability evaluation of 20 percent or more payments to the person may be re- shall receive the rate of compensation sumed upon release from incarceration. payable under 38 U.S.C. 1114(a). In addition, VA will also notify the (2) Veteran rated less than 20 percent. A person’s dependents of their right to an veteran to whom the provisions of apportionment if the VA is aware of paragraphs (a) and (c) of this section their existence and can obtain their ad- apply with a service-connected dis- dresses. However, no apportionment ability evaluation of less than 20 per- will be made if the veteran or the de- cent (even though the rate for 38 U.S.C. pendent is a fugitive felon as defined in 1114 (k) or (q) is paid) shall receive one- paragraph (n) of this section. half the rate of compensation payable (b) Definitions. For the purposes of under 38 U.S.C. 1114(a). this section the term compensation in- (3) Surviving spouse, parent or child. A cludes disability compensation under surviving spouse, parent, or child, ben- 38 U.S.C. 1151. The term dependency and eficiary to whom the provisions of indemnity compensation (DIC) includes paragraphs (a) and (c) of this section death compensation payable under 38 apply shall receive one-half the rate of U.S.C. 1121 or 1141, death compensation compensation payable under 38 U.S.C. and DIC payable under 38 U.S.C. 1151, 1114(a). and any benefit payable under chapter (e) Apportionment—(1) Compensation. 13 of title 38, United States Code. The All or part of the compensation not term release from incarceration includes paid to an incarcerated veteran may be participation in a work release or half- apportioned to the veteran’s spouse, way house program, parole, and com- child or children and dependent parents pletion of sentence. For purposes of on the basis of individual need. In de- this section, a felony is any offense termining individual need consider- punishable by death or imprisonment ation shall be given to such factors as for a term exceeding 1 year, unless spe- the apportionee claimant’s income and cifically categorized as a misdemeanor living expenses, the amount of com- under the law of the prosecuting juris- pensation available to be apportioned, diction. the needs and living expenses of other (c) Applicability. The provisions of apportionee claimants as well as any paragraph (a) of this section are appli- special needs, if any, of all apportionee cable to the following persons: claimants.

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(2) DIC. All or part of the DIC not ment of Veterans Affairs receives no- paid to an incarcerated surviving tice of release within 1 year following spouse or other children not in the sur- release; otherwise the award shall be viving spouse’s custody may be appor- resumed the date of receipt of notice of tioned to another child or children. All release. If there was an apportionment or part of the DIC not paid to an incar- award during incarceration, it shall be cerated child may be apportioned to discontinued date of last payment to the surviving spouse or other children. the apportionee upon receipt of notice These apportionments shall be made on of release of the incarcerated person. the basis of individual need giving con- Payment to the released person shall sideration to the factors set forth in then be resumed at the full rate from paragraph (e)(1) of this section. date of last payment to the (f) Effective dates. An apportionment apportionee. Payment to the released under this section shall be effective the person from date of release to date of date of reduction of payments made to last payment to the apportionee shall the incarcerated person, subject to be made at the rate which is the dif- payments to the incarcerated person ference between the released person’s over the same period, if a claim or in- full rate and the sum of (i) the rate tent to file a claim as set forth in that was payable to the apportionee § 3.155(b) is received within 1 year after and (ii) the rate payable during incar- notice to the incarcerated person as re- ceration. quired by paragraph (a) of this section, (2) Apportionment granted and family and any necessary evidence is received not reunited. If there was an apportion- within 1 year from the date of request ment granted during incarceration and by the Department of Veterans Affairs; the released person is not reunited otherwise, payments may not be made with all dependents for whom an appor- for any period prior to the date of re- tionment was granted, the released ceipt of a new claim or intent to file a person’s award shall be resumed as claim as set forth in § 3.155(b). stated in paragraph (i)(1) of this sec- (g) Incarcerated dependent. No apportion except that when the released per- tionment may be made to or on behalf son’s award is resumed it shall not in- of any person who is incarcerated in a clude any additional amount payable Federal, State, or local penal institu- by reason of a dependent(s) not re- tion for conviction of a felony. united with the released person. The (h) Notice to dependent for whom ap- award to this dependent(s) will then be portionment granted. A dependent for reduced to the additional amount pay- whom an apportionment is granted able for the dependent(s). under this section shall be informed (3) Apportionment to a dependent par- that the apportionment is subject to ent. An apportionment made to a de- immediate discontinuance upon the in- pendent parent under this section can- carcerated person’s release or partici- not be continued beyond the veteran’s pation in a work release or halfway release from incarceration unless the house program. A dependent shall also veteran is incompetent and the provi- be informed that if the dependent and sions of § 3.452(c) (1) and (2) are for ap- the incarcerated person do not live to- plication. When a competent veteran is gether when the incarcerated person is released from incarceration an appor- released (or participates in a work re- tionment made to a dependent parent lease or halfway house program) the shall be discontinued and the veteran’s dependent may submit a new claim for award resumed as provided in para- apportionment. graph (i)(1) of this section. (i) Resumption upon release—(1) No ap- (j) Increased compensation during in- portionment or family reunited. If there carceration—(1) General. The amount of was no apportionment at the time of any increased compensation awarded release from incarceration, or if the re- to an incarcerated veteran that results leased person is reunited with all de- from other than a statutory rate in- pendents for whom an apportionment crease may be subject to reduction due was granted, the released person’s to incarceration. This applies to a vet- award shall be resumed the date of re- eran whose compensation is subject to lease from incarceration if the Depart- reduction under paragraphs (a) and (c)

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of this section prior to approval of an (k) Retroactive awards. Whenever award of increased compensation as compensation or DIC is awarded to an well as to veteran whose compensation incarcerated person any amounts due is not subject to reduction under para- for periods prior to date of reduction graphs (a) and (c) of this section prior under this section shall be paid to the to approval of an award of increased incarcerated person. compensation. (l) DIC parents. If two parents are (2) Veteran subject to reduction under both entitled to DIC and were living to- paragraphs (a) and (c) of this section. If gether prior to the time of the DIC prior to approval of an award of in- payable to one parent was reduced due creased compensation the veteran’s to incarceration, they shall be consid- compensation was reduced under the ered as two parents not living together provisions of paragraphs (a) and (c) of for the purpose of determining entitle- this section, the amount of the in- ment to DIC. crease shall be reduced as follows if the (m) Conviction overturned on appeal. If veteran remains incarcerated: a conviction is overturned on appeal, (i) If the veteran’s schedular evalua- any compensation or DIC withheld tion is increased from 10 percent to 20 under this section as a result of incar- percent or greater, the amount payable ceration for such conviction (less the to the veteran shall be increased from amount of any apportionment) shall be one-half the rate payable under 38 U.S.C. 1114(a) to the rate payable under restored to the beneficiary. section 1114(a). (n) Fugitive felons. (1) Compensation (ii) If the veteran’s schedular evalua- is not payable on behalf of a veteran tion was 20 percent or more, none of for any period during which he or she is the increased compensation shall be a fugitive felon. Compensation or DIC paid to the veteran while the veteran is not payable on behalf of a dependent remains incarcerated. of a veteran for any period during (3) Veteran’s compensation not subject which the veteran or the dependent is a to reduction under paragraphs (a) and (c) fugitive felon. of this section prior to award of increased (2) For purposes of this section, the compensation. If prior to the approval of term fugitive felon means a person who an award of increased compensation is a fugitive by reason of: the veteran is incarcerated in a Fed- (i) Fleeing to avoid prosecution, or eral, State, or local penal institution custody or confinement after convic- for conviction of a felony and the vet- tion, for an offense, or an attempt to eran’s compensation was not reduced commit an offense, which is a felony under the provisions of paragraphs (a) under the laws of the place from which and (c) of this section, none of the in- the person flees; or creased compensation shall be paid to (ii) Violating a condition of proba- the veteran for periods after October 7, tion or parole imposed for commission 1980, subject to the following condi- of a felony under Federal or State law. tions: (3) For purposes of paragraph (n) of (i) The veteran remains incarcerated this section, the term felony includes a after October 7, 1980 in a Federal, high misdemeanor under the laws of a State, or local penal institution for State which characterizes as high mis- conviction of a felony; and demeanors offenses that would be fel- (ii) The award of increased compensa- ony offenses under Federal law. tion is approved after October 7, 1980. If (4) For purposes of paragraph (n) of the effective date of the increase is this section, the term dependent means prior to October 8, 1980, the amount a spouse, surviving spouse, child, or de- payable for periods prior to October 8, pendent parent of a veteran. 1980, shall not be reduced. (4) Apportionments. The amount of (Authority: 38 U.S.C. 501(a), 5313, 5313B; Sec. any increased compensation reduced 506, Pub. L. 107–103, 115 Stat. 996–997) under this paragraph may be appor- [46 FR 47542, Sept. 29, 1981, as amended at 68 tioned as provided in paragraph (e) of FR 34542, June 10, 2003; 79 FR 57697, Sept. 25, this section. 2014]

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§ 3.666 Incarcerated beneficiaries and (1) If surviving spouse is disqualified fugitive felons—pension. to child or children at the rate of death If any individual to or for whom pen- pension payable if there were no such sion is being paid under a public or pri- surviving spouse; or (2) If a child is disqualified, to a sur- vate law administered by the Depart- viving spouse or other child or children ment of Veterans Affairs is imprisoned at the rate of death pension payable if in a Federal, State or local penal insti- there were no such child, and tution as the result of conviction of a (3) From the day following the date felony or misdemeanor, such pension of discontinuance of payments to the payments will be discontinued effective disqualified person, subject to pay- on the 61st day of imprisonment fol- ments made to that person over the lowing conviction. The payee will be same period if evidence of income is re- informed of his or her rights and the ceived within 1 year after date of re- rights of dependents to payments while quest; otherwise payments may not be he or she is imprisoned as well as the made for any period prior to the date of conditions under which payments to receipt of a claim or intent to file a him or to her may be resumed on his or claim as set forth in § 3.155(b). her release from imprisonment. How- (4) The income limitation applicable ever, no apportionment will be made if to eligible persons will be that which the veteran or the dependent is a fugi- would apply if the imprisoned person tive felon as defined in paragraph (e) of did not exist. this section. Payments of pension au- (c) Resumption of pension upon release thorized under this section will con- from incarceration. Pension will be re- tinue until notice is received by the sumed as of the day of release if notice Department of Veterans Affairs that is received within 1 year following re- the imprisonment has terminated. lease; otherwise resumption will be ef- (a) Payment may Disability pension. fective the date of receipt of such no- be made to the spouse, child or chil- tice. Where an award or increased dren of a veteran disqualified under award was made to any other payee this section: based upon the disqualification of the (1) If the veteran continues to be eli- veteran, surviving spouse, or child gible except for the provisions of this while in prison, such award will be re- section, and duced or discontinued as of date of last (2) If the annual income of the spouse payment and pension will be resumed or child is such that death pension to the released prisoner at a rate which would be payable. will be the difference, if any, between (3) At the rate payable under the the total pension payable and the death pension law or the rate which amount which was paid to the other the veteran was receiving at the time person or persons through the date of of imprisonment, whichever is less. last payment and thereafter the full (4) From the day following the date rate. of discontinuance of payments to the (d) Veteran entitled to compensation. If veteran, subject to payments made to an imprisoned veteran is entitled to a the veteran over the same period, if a lesser rate of disability compensation, claim or intent to file a claim as set it shall be awarded as of the 61st day of forth in § 3.155(b) is received within 1 imprisonment in lieu of the pension the year after notice to the veteran as re- veteran was receiving if the veteran quired by this section and any nec- has neither spouse nor child. If the vet- essary evidence is received within 1 eran has a spouse or a child, compensa- year from the date of request; other- tion will be awarded only after the vet- wise payments may not be made for eran has been furnished an explanation any period prior to the date of receipt of the effect of electing compensation of a new claim or intent to file a claim on the amount available for apportion- as set forth in § 3.155(b). ment. If the veteran then requests (b) Death pension. Payment may be compensation, it shall be awarded from made to a child or children where a the date veteran requests the Depart- surviving spouse or child is disqualified ment of Veterans Affairs to take such under this section: action.

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(e) Fugitive felons. (1) Pension is not tion at an approved educational insti- payable on behalf of a veteran for any tution on the child’s 18th birthday, and period during which he or she is a fugi- if a claim for benefits is filed within 1 tive felon. Pension or death pension is year from the child’s 18th birthday. In not payable on behalf of a dependent of the case of a child who attains age 18 a veteran for any period during which after September 30, 1981, if the child the veteran or the dependent is a fugi- was, immediately before attaining age tive felon. 18, counted under 38 U.S.C. 1311(b) for (2) For purposes of this section, the the purpose of determining the amount term fugitive felon means a person who of DIC payable to the surviving spouse, is a fugitive by reason of: the effective date of an award of DIC to (i) Fleeing to avoid prosecution, or the child shall be the date the child at- custody or confinement after convic- tains age 18 if a claim for DIC is filed tion for an offense, or an attempt to within 1 year from that date. commit an offense, which is a felony under the laws of the place from which (Authority: 38 U.S.C. 5110(e)) the person flees; or (4) An initial award of dependency (ii) Violating a condition of proba- and indemnity compensation to a child tion or parole imposed for commission in its own right based upon a course of of a felony under Federal or State law. instruction at an approved educational (3) For purposes of paragraph (e) of institution which was begun after the this section, the term felony includes a child’s 18th birthday may be paid from high misdemeanor under the laws of a the first day of the month in which the State which characterizes as high mis- course commenced if a claim is filed demeanors offenses that would be fel- within 1 year from that date. ony offenses under Federal law. (4) For purposes of paragraph (e) of (Authority: 38 U.S.C. 5110(e)) this section, the term dependent means a spouse, surviving spouse, child, or de- (5) Where a child was receiving dependent parent of a veteran. pendency and indemnity compensation in its own right prior to age 18, pay- (Authority: 38 U.S.C. 501(a), 5313, 5313B) ments may be continued from the 18th [26 FR 1601, Feb. 24, 1961, as amended at 40 birthday if the child was then attend- FR 6971, Feb. 18, 1975; 40 FR 22254, May 22, ing an approved educational institu- 1975; 44 FR 45943, Aug. 6, 1979; 46 FR 47543, tion and evidence of such school at- Sept. 29, 1981; 62 FR 5529, Feb. 6, 1997; 68 FR tendance is received within 1 year from 34543, June 10, 2003; 79 FR 57697, Sept. 25, 2014] the 18th birthday. Where the child was receiving dependency and indemnity § 3.667 School attendance. compensation in its own right prior to (a) General. (1) Pension or compensa- age 18 and was not attending an ap- tion may be paid from a child’s 18th proved educational institution on the birthday based upon school attendance 18th birthday but commences attend- if the child was at that time pursing a ance at an approved educational insti- course of instruction at an approved tution after the 18th birthday, pay- educational institution and a claim for ments may be resumed from the com- such benefits is filed within 1 year from mencing date of the course if evidence the child’s 18th birthday. of such school attendance is filed with- (2) Pension or compensation based in 1 year from that date. upon a course of instruction at an ap- (b) Vacation periods. A child is consid- proved educational institution which ered to be in school during a vacation was begun after a child’s 18th birthday or other holiday period if he or she was may be paid from the commencement attending an approved educational in- of the course if a claim is filed within stitution at the end of the preceding 1 year from that date. school term and resumes attendance, (3) An initial award of DIC (depend- either in the same or a different ap- ency and indemnity compensation) to a proved educational institution, at the child in the child’s own right is payable beginning of the next term. If an award from the first day of the month in has been made covering a vacation pe- which the child attains age 18 if the riod, and the child fails to commence child was pursuing a course of instruc- or resume school attendance, benefits

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will be terminated the date of last pay- CROSS REFERENCE: Dependents’ edu- ment or the last day of the month pre- cational assistance. See § 3.707. ceding the date of failure to pursue the [26 FR 1601, Feb. 24, 1961, as amended at 30 course, whichever is the earlier. FR 14983, Dec. 3, 1965; 32 FR 12114, Aug. 23, (c) Ending dates. Except as provided 1967; 34 FR 839, Jan. 18, 1969; 40 FR 22254, May in paragraph (b) of this section, bene- 22, 1975; 47 FR 24552, June 7, 1982; 65 FR 12116, Mar. 8, 2000] fits may be authorized through the last day of the month in which a course was § 3.668 [Reserved] or will be completed. § 3.669 Forfeiture. (Authority: 38 U.S.C. 5112(b)(7)) (a) General. Upon receipt of notice (d) Transfers to other schools. When from a Regional Counsel (or in cases benefits have been authorized based under the jurisdiction of the Manila upon school attendance and it is shown Regional Office, the Veterans Service that during a part or all of that period Center Manager) that a case is being the child was pursuing a different formally submitted for consideration course in the same approved edu- of forfeiture of a payee’s rights under cational institution or a course in a § 3.905 of this part or that the payee has different approved educational institu- been indicted for subversive activities, payments will be suspended effective tion, payments previously made will date of last payment. not be disturbed. (b) Fraud or treasonable act—(1) Fraud. (e) Accrued benefits only. When a If forfeiture of rights is not declared, claim for accrued benefits is filed by or payments shall be resumed from date on behalf of a veteran’s child over 18 of last payment, if otherwise in order. but under 23 years of age, who was pur- If it is determined that rights have suing a course of instruction at the been forfeited, benefits shall be discon- time of the payee’s death and payment tinued effective the commencing date of accrued benefits only is involved, of the award or the day preceding the evidence of school attendance need not commission of the act resulting in the be confirmed by the school. When the forfeiture, whichever is later. payee’s death occurred during a school (2) Treasonable acts. If forfeiture of vacation period, the requirements will rights is not declared, payments shall be considered to have been met if the be resumed from date of last payment, child was carried on the school rolls on if otherwise in order. If it is deter- the last day of the regular school term mined that rights have been forfeited, immediately preceding the date of the benefits shall be discontinued the date payee’s death. of the forfeiture decision or date of last payment, whichever is earlier. (Authority: 38 U.S.C. 5112(b)(7)) (c) Subversive activities. If the payee is acquitted of the charge, payments will (f) Nonduplication. Pension, com- be resumed from date of last payment, pensation or dependency and indem- if otherwise in order. If the payee is nity compensation may not be author- convicted, benefits will be discontinued ized: effective the commencing date of the (1) After a child has elected to re- award or the day preceding the com- ceive educational assistance under 38 mission of the act resulting in the for- U.S.C. chapter 35 (see § 3.707 and feiture, whichever is later. § 21.3023 of this chapter); or (d) Pardons. (1) Where the payee’s of- (2) Based on an educational program fense has been pardoned by the Presi- in a school where the child is wholly dent of the United States, the award supported at the expense of the Federal will be resumed, if otherwise in order, Government, such as a service acad- effective the date of the pardon if emy. claim is filed within 1 year from that date; otherwise benefits may not be authorized for any period prior to the date of filing claim. The award will be subject to any existing overpayment.

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(2) Payments to a dependent of the ment under former 10 U.S.C. 687 (as in person whose benefits were declared effect on September 14, 1981) may re- forfeited before September 2, 1959, will ceive disability compensation for dis- be discontinued effective the day pre- ability incurred in or aggravated by ceding the date of the pardon. service prior to the date of receipt of lump-sum readjustment payment sub- (Authority: 38 U.S.C. 501) ject to deduction of an amount equal to CROSS REFERENCES: Fraud. See § 3.901. 75 percent of the amount received as Treasonable acts. See § 3.902. Subversive ac- readjustment payment. tivities. See § 3.903. [27 FR 8616, Aug. 29, 1962, as amended 28 FR (Authority: 38 U.S.C. 501) 5618, June 7, 1963; 39 FR 28630, Aug. 9, 1974; 46 (ii) Readjustment pay authorized FR 34801, July 6, 1981; 71 FR 52290, Sept. 5, 2006] under former 10 U.S.C. 3814(a) is not subject to recoupment through with- CONCURRENT BENEFITS AND ELECTIONS holding of disability compensation, entitlement to which was established § 3.700 General. prior to September 15, 1981. Not more than one award of pension, compensation, or emergency officers’, (Authority: 38 U.S.C. 501) regular or reserve retirement pay will (iii) Where entitlement to disability be made concurrently to any person compensation was established on or based on his or her own service except after September 15, 1981, a veteran who as provided in § 3.803 relating to naval has received a lump-sum readjustment pension and § 3.750(c) relating to waiver payment may receive disability com- of retirement pay. Not more than one pensation for disability incurred in or award of pension, compensation, or de- aggravated by service prior to the date pendency and indemnity compensation of receipt of the lump-sum readjust- may be made concurrently to a depend- ment payment, subject to recoupment ent on account of more than one period of the readjustment payment. Where of service of a veteran. payment of readjustment pay was made on or before September 30, 1996, (Authority: 38 U.S.C. 5304(a)) VA will recoup from disability com- (a) Veterans—(1) Active service pay. (i) pensation an amount equal to the total Pension, compensation, or retirement amount of readjustment pay. Where pay on account of his or her own serv- payment of readjustment pay was ice will not be paid to any person for made after September 30, 1996, VA will any period for which he or she receives recoup from disability compensation active service pay. an amount equal to the total amount of readjustment pay less the amount of (Authority: 38 U.S.C. 5304(c)) Federal income tax withheld from such pay. (ii) Time spent by members of the ROTC in drills as part of their activi- (Authority: 10 U.S.C. 1174(h)(2)) ties as members of the corps is not active service. (iv) The receipt of readjustment pay (iii) Reservists may waive their pen- does not affect the payment of dis- sion, compensation, or retirement pay ability compensation based on a subse- for periods of field training, instruc- quent period of service. Compensation tion, other duty or drills. A waiver payable for service-connected dis- may include prospective periods and ability incurred or aggravated in a sub- contain a right of recoupment for the sequent period of service will not be re- days for which the reservists did not duced for the purpose of offsetting re- receive payment for duty by reason of adjustment pay based on a prior period failure to report for duty. of service. (2) Lump-sum readjustment pay. (i) Where entitlement to disability com- (Authority: 10 U.S.C. 1174(h)(2)) pensation was established prior to Sep- (3) Severance pay. Where the dis- tember 15, 1981, a veteran who has re- ability or disabilities found to be serv- ceived a lump-sum readjustment pay- ice-connected are the same as those

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upon which disability severance pay is ing performance of duty in combat-re- granted, or where entitlement to dis- lated operations as designated by the ability compensation was established Department of Defense. on or after September 15, 1981, an award of compensation will be made (Authority: 10 U.S.C. 1174(h)(2) and 1212(d)) subject to recoupment of the disability (4) Improved pension. If a veteran is severance pay. Prior to the initial de- entitled to improved pension on the termination of the degree of disability basis of the veteran’s own service and recoupment will be at the full monthly is also entitled to pension under any compensation rate payable for the dis- pension program currently or pre- ability or disabilities for which sever- viously in effect on the basis of any ance pay was granted. Following initial other person’s service, the Department determination of the degree of dis- of Veterans Affairs shall pay the vet- ability recoupment shall not be at a eran only the greater benefit. monthly rate in excess of the monthly compensation payable for that degree (Authority: 38 U.S.C. 1521(i)) of disability. For this purpose the term (5) Separation pay and special separa- ‘‘initial determination of the degree of tion benefits. (i) Where entitlement to disability’’ means the first regular disability compensation was estab- schedular compensable rating in ac- lished on or after September 15, 1981, a cordance with the provisions of subpart veteran who has received separation B, part 4 of this chapter and does not pay may receive disability compensa- mean a rating based in whole or in part tion for disability incurred in or aggra- on a need for hospitalization or a pe- vated by service prior to the date of re- riod of convalescense. Where entitle- ceipt of separation pay subject to ment to disability compensation was recoupment of the separation pay. established prior to September 15, 1981, Where payment of separation pay was compensation payable for service-con- made on or before September 30, 1996, nected disability other than the dis- VA will recoup from disability com- ability for which disability severance pensation an amount equal to the total pay was granted will not be reduced for amount of separation pay. Where pay- the purpose of recouping disability sev- ment of separation pay was made after erance pay. Where entitlement to dis- September 30, 1996, VA will recoup ability compensation was established from disability compensation an on or after September 15, 1981, a vet- amount equal to the total amount of eran may receive disability compensa- separation pay less the amount of Fed- tion for disability incurred or aggra- eral income tax withheld from such vated by service prior to the date of re- pay. The Federal income tax with- ceipt of the severance pay, but VA holding amount is the flat withholding must recoup from that disability com- rate for Federal income tax with- pensation an amount equal to the sev- holding. erance pay. Where payment of sever- (ii) The receipt of separation pay ance pay was made on or before Sep- does not affect the payment of dis- tember 30, 1996, VA will recoup from ability compensation based on a subse- disability compensation an amount quent period of service. Compensation equal to the total amount of the sever- payable for service-connected dis- ance pay. Where payment of severance ability incurred or aggravated in a sub- pay was made after September 30, 1996, sequent period of service will not be re- VA will recoup from disability com- duced for the purpose of offsetting sep- pensation an amount equal to the total aration pay based on a prior period of amount of the severance pay less the service. amount of Federal income tax withheld (iii) Where payment of special sepa- from such pay. For members of the ration benefits under 10 U.S.C. 1174a Armed Forces who separated under was made on or after December 5, 1991, Chapter 61 of title 10, United States VA will recoup from disability com- Code, on or after January 28, 2008, no pensation an amount equal to the total recoupment of severance pay will be amount of special separation benefits made for disabilities incurred in line of less the amount of Federal income tax duty in a combat zone or incurred dur- withheld from such pay. The Federal

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income tax withholding amount is the on account of his or her own service, flat withholding rate for Federal in- will not bar the payment of pension, come tax withholding. compensation, or dependency and indemnity compensation on account of (Authority: 10 U.S.C. 1174 and 1174a) the death or disability of any other (b) Dependents—(1) Surviving spouse. person. Subject to the provisions of paragraph (Authority: 38 U.S.C. 5304(b)) (a)(4) of this section, the receipt of pen- [26 FR 1601, Feb. 24, 1961, as amended at 29 sion, compensation, or dependency and FR 11359, Aug. 6, 1964; 29 FR 15207, Nov. 11, indemnity compensation by a surviving 1964; 30 FR 11389, Sept. 8, 1965; 35 FR 10648, spouse because of the death of any vet- July 1, 1970; 40 FR 59346, Dec. 23, 1975; 44 FR eran, or receipt of pension or com- 45943, Aug. 6, 1979; 52 FR 27340, July 21, 1987; pensation because of his or her own 56 FR 1111, Jan. 11, 1991; 67 FR 60868, Sept. 27, service, shall not bar the payment to 2002; 74 FR 26957, June 5, 2009; 74 FR 36610, the surviving spouse of pension, com- July 24, 2009] pensation, or dependency and indem- § 3.701 Elections of pension or com- nity compensation because of the death pensation. or disability of any other veteran; however, other than insurance, concurrent (a) General. Except as otherwise pro- benefits under laws administered by vided, a person entitled to receive pen- the Department of Veterans Affairs sion or compensation under more than may not be authorized to a surviving one law or section of a law adminis- spouse by reason of the death of more tered by the Department of Veterans than one veteran to whom the sur- Affairs may elect to receive whichever viving spouse has been married. The benefit, regardless of whether it is the surviving spouse may elect to receive greater or lesser benefit, even though benefits based on the death of one such the election reduces the benefits pay- spouse and the election places the right able to his or her dependents. Such per- to benefits based on the deaths of other son may at any time elect or reelect spouses in suspense. The suspension the other benefit. An election by a vet- may be lifted at any time by another eran controls the rights of all depend- election based on the death of another ents in that case. An election by a sur- spouse. Benefits payable in the elected viving spouse controls the claims of all case will be subject to prior payments children including children over 18 and for the same period based on the death children not in the custody of the sur- of the other spouse where, under the viving spouse. The election of improved provisions of § 3.400(c), there is entitle- pension by a surviving spouse, how- ment in the elected case prior to date ever, shall not prejudice the rights of of receipt of the election. any child receiving an apportionment on December 31, 1978. Termination of a (Authority: 38 U.S.C. 5304) marriage or marital relationship which had been the reason for terminating an (2) Children. Except as provided in § 3.703 and paragraph (a)(4) of this sec- award of section 306 or old-law pension tion, the receipt of pension, compensa- does not restore to the surviving tion, or dependency and indemnity spouse the right to receive section 306 compensation by a child on account of or old-law pension. The claimant’s en- the death of a veteran or the receipt by titlement, if otherwise established, is the child of pension or compensation under the current provisions of 38 on account of his or her own service U.S.C. 1541. will not bar the payment of pension, (Authority: 38 U.S.C. 501) compensation, or dependency and indemnity compensation on account of (b) Form of election. An election must the death or disability of any other be in writing and must specify the ben- veteran. efit the person wishes to receive. (3) Parents. The receipt of compensa- (c) Change from one law to another. tion or dependency and indemnity com- Except as otherwise provided, where pensation by a parent on account of payments of pension or compensation the death of a veteran or receipt by are being made to a person under one him or her of pension or compensation law, the right to receive benefits under

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another law being in suspension, and a check for this benefit or when the higher rate of pension or compensation payee dies after filing an election but becomes payable under the other law, prior to negotiation of a check. benefits at the higher rate will not be (2) Notwithstanding the provisions of paid for any date prior to the date of paragraph (d)(1), effective November 2, receipt of an election. 1994, a surviving spouse who is receiv- [26 FR 1602, Feb. 24, 1961, as amended at 36 ing dependency and indemnity com- FR 12618, July 2, 1971; 44 FR 45943, Aug. 6, pensation may elect to receive death 1979; 79 FR 57697, Sept. 25, 2014] pension instead of such compensation.

§ 3.702 Dependency and indemnity (Authority: 38 U.S.C. 1317) compensation. (e) Surviving spouse becomes entitled. A (a) Right to elect. A person who is eli- surviving spouse who becomes eligible gible for death compensation and who to receive death compensation by rea- has entitlement to dependency and in- son of liberalizing provisions of any demnity compensation pursuant to the law may receive death compensation or provisions of § 3.5(b)(2) or (3) may reelect dependency and indemnity com- ceive dependency and indemnity compensation even though dependency and pensation upon the filing of a claim. indemnity compensation has been paid The claim of such a person for service- to a child or children of the veteran. connected death benefits shall be con- (f) Death pension rate. (1) Effective sidered a claim for dependency and in- October 1, 1961, where the monthly rate demnity compensation subject to con- of dependency and indemnity com- firmation by the claimant. The effec- pensation payable to a surviving tive date of payment is controlled by spouse who has children is less than the provisions of § 3.400(c)(4). the monthly rate of death pension (b) Effect on child’s entitlement. Where which would be payable to such sur- a surviving spouse is entitled to death viving spouse if the veteran’s death had compensation, the amount of which is not been service connected, dependency based in part on the existence of a and indemnity compensation shall be child who has attained the age of 18 paid to such surviving spouse in an years, and elects to receive dependency amount equal to the pension rate for and indemnity compensation, the inde- any month (or part thereof) in which pendent award of dependency and in- this rate is greater. demnity compensation to which the (2) Effective June 22, 1966, where the child is entitled will be awarded to or monthly rate of dependency and indem- for the child without separate election nity compensation payable to a sur- by or for the child. Should such a surviving spouse who has children is less viving spouse not elect to receive de- than the monthly rate of death pension pendency and indemnity compensation, which would be payable for the chil- the independent dependency and in- dren if the veteran’s death had not demnity compensation to which a child been service connected and the sur- who has attained 18 years of age is en- viving spouse were not entitled to such titled, may be awarded upon applica- pension, dependency and indemnity tion by or for the child. The effective compensation shall be payable to the date of award in these situations will surviving spouse in an amount equal to be in accordance with § 3.400(c)(4)(ii). the monthly rate of death pension (c) Limitation. A claim for dependency which would be payable to the children and indemnity compensation may not for any month (or part thereof) in be filed or withdrawn after the death of which this rate is greater. the surviving spouse, child, or parent. (d) Finality of election. (1) Except as (Authority: 38 U.S.C. 1312(b)) noted in paragraph (d)(2), an election CROSS REFERENCE: Deaths prior to January to receive dependency and indemnity 1, 1957. See § 3.400(c)(3)(i). compensation is final and the claimant [35 FR 18661, Dec. 9, 1970, as amended at 39 may not thereafter reelect death pen- FR 20205, June 7, 1974; 41 FR 17387, Apr. 26, sion or compensation in that case. An 1976; 44 FR 45943, Aug. 6, 1979; 60 FR 18356, election is final when the payee (or the Apr. 11, 1995; 61 FR 20727, May 8, 1996; 62 FR payee’s fiduciary) has negotiated one 5529, Feb. 6, 1997]

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§ 3.703 Two parents in same parental ceiving benefits under the same law. line. Where a child is no longer eligible to (a) General. Death compensation or receive pension, compensation or de- dependency and indemnity compensa- pendency and indemnity compensation tion is not payable for a child if de- because of having elected dependents’ pendency and indemnity compensation educational assistance under 38 U.S.C. is paid to or for a child or to the sur- chapter 35, the child will be excluded from consideration in determining the viving spouse on account of the child rate payable for another child or chil- by reason of the death of another par- dren. ent in the same parental line where (b) Parents. If there are two parents both parents died before June 9, 1960. eligible for dependency and indemnity Where the death of one such parent oc- compensation and only one parent files curred on or after June 9, 1960, gratu- claim for this benefit, the rate of de- itous benefits may not be paid or fur- pendency and indemnity compensation nished to or on account of any child by for that parent will not exceed the reason of the death of more than one amount which would be paid to him or parent in the same parental line. her if both parents had filed claim for (b) Election. The child or his or her fi- dependency and indemnity compensa- duciary may elect to receive benefits tion. The rate of death compensation based on the service of either veteran. for the other parent will not exceed the An election of pension, compensation amount which would be paid if both or dependency and indemnity com- parents were receiving this benefit. pensation based on the death of one parent places the right to such benefits [26 FR 1602, Feb. 24, 1961, as amended at 27 based on the death of another parent in FR 4993, May 29, 1962; 34 FR 839, Jan. 18, 1969; suspension. The suspension may be lift- 39 FR 20205, June 7, 1974; 54 FR 34981, Aug. 23, 1989] ed at any time by making another election. §§ 3.705–3.706 [Reserved] (c) Other payees. Where a child has elected to receive pension, compensa- § 3.707 Dependents’ educational assist- tion, dependency and indemnity com- ance. pensation or dependents’ educational (a) Child. The conditions applicable assistance under 38 U.S.C. ch. 35 based to the bar to payment of pension, com- on the death of a veteran, he (or she) pensation or dependency and indem- will be excluded from consideration in nity compensation for a child concur- determining the eligibility or rate pay- rently with educational assistance al- able to a surviving spouse or another lowance under 38 U.S.C. chapter 35 are child or children in the case of another set forth in § 21.3023 of this chapter. deceased veteran in the same parental (b) Spouse or surviving spouse. There is line. See § 3.659(b). no bar to the payment of pension, compensation or dependency and indem- CROSS REFERENCES: Two-parent cases. See § 3.503(a)(7). Two parents in same parental nity compensation to a spouse concur- line. See § 3.659. rently with educational assistance allowance under 38 U.S.C. ch. 35. [27 FR 4993, May 29, 1962, as amended at 39 FR 20205, June 7, 1974] CROSS REFERENCES: Discontinuance. See § 3.503(a)(8). Certification. See § 3.807. § 3.704 Elections within class of de- [34 FR 840, Jan. 18, 1969, as amended at 41 FR pendents. 29120, July 15, 1976] (a) Children. Where children are eligible to receive monthly benefits under § 3.708 Federal Employees’ Compensa- more than one law in the same case, tion. the election of benefits under one law (a) Military service—(1) Initial election. by or on behalf of one child will not Where a person is entitled to com- serve to increase the rate allowable for pensation from the Office of Workers’ any other child under another law in Compensation Programs, under the that case. The rate payable for each Federal Employees’ Compensation Act child will not exceed the amount which (FECA) based upon disability or death would be paid if all children were re- due to service in the Armed Forces and

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is also entitled based upon service in based upon civilian employment and is the Armed Forces to pension, com- also entitled to compensation or de- pensation or dependency and indem- pendency and indemnity compensation nity compensation under the laws ad- under laws administered by the Depart- ministered by the Department of Vet- ment of Veterans Affairs for the same erans Affairs, the claimant will elect disability or death, the claimant will which benefit he or she will receive. elect which benefit he or she will re- Pension compensation, or dependency ceive. On or after September 13, 1960, and indemnity compensation may not an award cannot be approved for pay- be paid in such instances by the De- ment of compensation or dependency partment of Veterans Affairs concur- and indemnity compensation concurrently with compensation from the Of- rently with compensation from the Of- fice of Workers’ Compensation Pro- fice of Workers’ Compensation Pro- grams. Benefits are not payable by the grams in such instances and an elec- Office of Workers’ Compensation Pro- tion to receive benefits from either grams for disability or death incurred agency is final. See § 3.958. There is no on or after January 1, 1957, based on right of reelection. (5 U.S.C. 8116(b)) A military service. child who is eligible for dependency (2) Right of reelection. Persons receiv- and indemnity compensation or other ing compensation from the Office of benefits independent of the surviving Workers’ Compensation Programs spouse’s entitlement may receive such based on death due to military service benefits concurrently with payment of may elect to receive dependency and FECA benefits to the surviving spouse. indemnity compensation at any time. (2) Not the same disability or death. Once payment of dependency and in- There is no prohibition against pay- demnity compensation has been grant- ment of benefits under the Federal Em- ed, all further right to FECA benefits ployees’ Compensation Act concur- is extinguished and only dependency rently with other benefits administered and indemnity compensation is payable by the Department of Veterans Affairs thereafter. when such benefits are not based on (3) Rights of children. Where primary the same disability or death. title is vested in the surviving spouse, [39 FR 18099, May 23, 1974, as amended at 41 the claimant’s election controls the FR 29120, July 15, 1976; 44 FR 45943, Aug. 6, rights of any of the veteran’s children, 1979; 69 FR 46435, Aug. 3, 2004] regardless of whether they are in the claimant’s custody and regardless of § 3.710 Civil service annuitants. the fact that such children may not be Department of Veterans Affairs bene- eligible to receive benefits under laws fits may be paid concurrently with administered by the Office of Workers’ civil service retirement benefits. How- Compensation Programs. A child who ever, payments will be considered in- is eligible for dependency and indem- come as provided in § 3.262 (e) and (h). nity compensation or other benefits independent of the surviving spouse’s [29 FR 15208, Nov. 11, 1964] entitlement may receive such benefits concurrently with payment of FECA § 3.711 Improved pension elections. benefits to the surviving spouse. Except as otherwise provided by this (4) Entitlement based on 38 U.S.C. 1151. section and § 3.712, a person entitled to The provisions of this paragraph are receive section 306 or old-law pension applicable also in those cases in which on December 31, 1978, may elect to re- disability or death occurs as a result of ceive improved pension under the pro- having submitted to an examination, visions of 38 U.S.C. 1521, 1541, or 1542 as medical or surgical treatment, hos- in effect on January 1, 1979. Except as pitalization or hospital care, training, provided by § 3.714, an election of im- or compensated work therapy program. proved pension is final when the payee See §§ 3.358 and 3.361. (or the payee’s fiduciary) negotiates (b) Civilian employment—(1) Same dis- one check for this benefit and there is ability or death. Where a person is enti- no right to reelection. Any veteran eli- tled to compensation from the Office of gible to make an election under this Workers’ Compensation Programs section who is married to a veteran

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who is also eligible to make such an (b) Persons entitled to pension on De- election may not receive improved pen- cember 31, 1978. The effective date of an sion unless the veteran’s spouse also election to receive improved pension elects to receive improved pension. filed before October 1, 1979, by a person entitled to receive either old-law pen- (Authority: Sec. 306(a)(1) of Pub. L. 95–588, 92 sion or section 306 pension on Decem- Stat. 2497) ber 31, 1978, shall be January 1, 1979, or [46 FR 11661, Feb. 10, 1981] if to the beneficiary’s advantage, at any date after January 1, 1979, and be- § 3.712 Improved pension elections; fore October 1, 1979. The amount of im- surviving spouses of Spanish-Amer- proved pension payable from the effec- ican War veterans. tive date of the election shall be re- (a) General. A surviving spouse of a duced by the amount of old-law pension Spanish-American War veteran eligible or section 306 pension paid to the bene- for pension under 38 U.S.C. 1536 may ficiary for such period. elect to receive improved pension (Authority: Sec. 306(d) of Pub. L. 95–588, 92 under 38 U.S.C. 1541. Except as provided Stat. 2497). by § 3.714, an election of improved pension is final when the payee (or the [44 FR 45944, Aug. 6, 1979] payee’s fiduciary) negotiates one check for this benefit and there is no right of § 3.714 Improved pension elections— public assistance beneficiaries. reelection. (b) Aid and attendance. A surviving (a) Definitions. The following defini- spouse of a Spanish-American War vet- tions are applicable to this section. eran who is receiving or entitled to re- (1) Pensioner. This means a person ceive pension based on need for regular who was entitled to section 306 or old- aid and attendance shall be paid which- law pension, or a dependent of such a ever is the greater: The monthly rate person for the purposes of chapter 15 of authorized by 38 U.S.C. 1536 (a) and (b) title 38, United States Code as in effect and 1544 or the monthly rate author- on December 31, 1978. ized by 38 U.S.C. 1541 and 544, as 38 (2) Public assistance. This means pay- U.S.C. 1541 and 1544 were in effect on ments under the following titles of the December 31, 1978, based on the sur- Social Security Act: viving spouse’s current income and net (i) Title I (Grants to States for Old worth. Pension under 38 U.S.C. 1541 and Age Assistance and Medical Assistance 1544, as in effect on December 31, 1978, to the Aged). is not payable if the current size of the (ii) Title X (Grants to States for Aid surviving spouse’s net worth is a bar to to the Blind). payment under § 3.252(b) or if the sur- (iii) Title XIV (Grants to States for viving spouse’s income exceeds the ap- Aid to the Permanently and Totally plicable limitation as in effect on De- Disabled). cember 31, 1978. Elections are not re- (iv) Part A of title IV (Aid to Fami- quired for this purpose. The change in lies with Dependent Children). rate shall be effective the first day of (v) Title XVI (Supplemental Security the month in which the facts warrant Income for the Aged, Blind and Dis- such change. abled). (3) Medicaid. This means a State plan (Authority: 38 U.S.C. 1536) for medical assistance under title XIX [44 FR 45943, Aug. 6, 1979, as amended at 46 of the Social Security Act. FR 11661, Feb. 10, 1981; 61 FR 67950, Dec. 26, (4) Informed election. The term ‘‘in- 1996] formed election’’ means an election of improved pension (or a reaffirmation of § 3.713 Effective dates of improved a previous election of improved pen- pension elections. sion) after the Department of Veterans (a) General. Except as provided in Affairs has complied with the require- paragraph (b) of this section an elec- ments of paragraph (e) of this section. tion to receive improved pension shall (b) General. In some States only a be effective the date of receipt of the person in receipt of public assistance is election. eligible for medicaid. When this is the

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case the following applies effective made. The Department of Veterans Af- January 1, 1979: fairs shall send a written notice to (1) A pensioner may not be required each pensioner to whom paragraph (b) to elect improved pension to receive, or of this section applies and who is eligi- to continue to receive, public assist- ble to elect or who has elected im- ance; or proved pension. The notice shall be in (2) A pensioner may not be denied (or clear and understandable language. It suffer a reduction in the amount of) shall include the following: public assistance by reason of failure (1) A description of the consequences or refusal to elect improved pension. to the pensioner (and the pensioner’s (c) Public assistance deemed to con- family if applicable) of losing medicaid tinue. Public assistance (or a supple- eligibility because of an increase in in- mentary payment under Pub. L. 93–233, come resulting from electing improved sec. 13(c)) payable to a pensioner may pension; and have been terminated because the pen- (2) A description of the provisions of sioner’s income increased as a result of paragraph (b) of this section; and electing improved pension. In this in- (3) In the case of a pensioner who has stance public assistance (or a supple- previously elected improved pension, a mentary payment under Pub. L. 93–233, form for the purpose of enabling the sec. 13(c)) shall be deemed to have re- pensioner to disaffirm the previous mained payable to a pensioner for each election of improved pensions; and month after December 1978 when the (4) The following provisons of Pub. L. following conditons are met: 96–272, sec. 310(b)(2)(B): (1) The pensioner was in receipt of (i) That a pensioner has 90 days from pension for the month of December the date the notice is mailed to the 1978; and pensioner to disaffirm a previous elec- (2) The pensioner was in receipt of tion by completing the disaffirmation public assistance (or a supplementary form and mailing it to the Department payment under Pub. L. 93–233, sec. of Veterans Affairs. 13(c)) prior to June 17, 1980, and for the (ii) That a pensioner who disaffirms a month of December 1978, and previous election shall receive, begin- (3) The pensioner’s public assistance ning the calendar month after the cal- payments (or a supplementary pay- endar month in which the Department ment under Pub. L. 93–233, sec. 13(c)) of Veterans Affairs receives the dis- were discontinued because of an in- affirmation, the amount of pension crease in income resulting from an payable if improved pension had not election of improved pension. been elected. (d) End of the deemed period of entitle- (iii) That a pensioner who disaffirms ment to public assistance. The deemed a previous election may again elect im- period of entitlement to public assist- proved pension but without a right to ance (or a supplementary payment disaffirm the subsequent election. under Pub. L. 93–233, sec. 13(c)) ends the first calendar month that begins more (iv) That a pensioner who disaffirms than 10 days after a pensioner makes an election of improved pension shall an informed election of improved pen- not be indebted to the United States sion. (If the pensioner is unable to for the period in which the pensioner make an informed election the in- received improved pension. formed election may be made by a member of the pensioner’s family.) A (Authority: Pub. L. 96–272, sec. 310; 94 Stat. 500) pensioner who fails to disaffirm a previously made election of improved pen- (f) Notification to the Social Security sion within the time limits set forth in Administration. The Department of Vet- paragraph (e) of this section shall be erans Affairs shall promptly furnish deemed to have reaffirmed the previous the Social Security Administration the election. This will also end the deemed following information: period of entitlement to public assist- (1) The name and identifying infor- ance. mation of each pensioner who dis- (e) Notice of right to make informed affirms his or her election of improved election or disaffirm election previously pension.

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(2) The name and identifying infor- RETIREMENT mation of each pensioner who fails to disaffirm and election of improved pen- § 3.750 Entitlement to concurrent re- sion within the 90-day period described ceipt of military retired pay and disability compensation. in paragraph (e)(4)(i) of this section. (3) The name and identifying infor- (a) Definition of military retired pay. mation of each pensioner who after dis- For the purposes of this part, military affirming his or her election of im- retired pay is payment received by a proved pension, subsequently reelected veteran that is classified as retired pay improved pension. by the Service Department, including retainer pay, based on the recipient’s (Authority: 38 U.S.C. 501) service as a member of the Armed [46 FR 11661, Feb. 10, 1981, as amended at 71 Forces or as a commissioned officer of FR 44919, Aug. 8, 2006] the Public Health Service, the Coast and Geodetic Survey, the Environ- § 3.715 Radiation Exposure Compensa- mental Science Services Administra- tion Act of 1990, as amended. tion, or the National Oceanic and At- (a) Compensation. (1) A radiation-ex- mospheric Administration. posed veteran, as defined in 38 CFR (b) Payment of both military retired pay 3.309(d)(3), who receives a payment and disability compensation or improved under the Radiation Exposure Com- pension—(1) Compensation. Subject to pensation Act of 1990, as amended (42 paragraphs (b)(2) and (b)(3) of this sec- U.S.C. 2210 note) (RECA), will not be tion, a veteran who is entitled to military retired pay and disability com- denied compensation to which the vet- pensation for a service-connected dis- eran is entitled under 38 CFR 3.309(d) ability rated 50 percent or more, or a for months beginning after March 26, combination of service-connected dis- 2002. abilities rated 50 percent or more, (2) A veteran who is not a ‘‘radiation- under the schedule for rating disabil- exposed veteran,’’ as defined in 38 CFR ities (38 CFR part 4, subpart B), is enti- 3.309(d)(3), is not entitled to VA com- tled to receive both payments subject pensation for disability caused by a to the phase-in period described in disease that is attributable to exposure paragraph (c) of this section. to radiation for which the veteran has (2) Chapter 61 disability retirees retiring received a payment under RECA. with 20 or more years of service. Dis- (b) Dependency and indemnity com- ability retired pay payable under 10 pensation. A person who receives a pay- U.S.C. Chapter 61 to a veteran with 20 ment under RECA based upon a vet- or more years of creditable service may eran’s death will not be denied depend- be paid concurrently with disability ency and indemnity compensation to compensation to a qualifying veteran which the person is entitled under 38 subject to the following: CFR 3.5 and 3.22 for months beginning (i) Any waiver required during the after March 26, 2002. phase-in period under paragraph (c) Offset of RECA payment against VA (c)(1)(ii) of this section; and benefits. Notwithstanding paragraph (a) (ii) If the veteran’s disability retired or (b) of this section, the amount of a pay exceeds the amount of retired pay RECA payment will be deducted from the veteran would have received had the amount of compensation payable the veteran retired based on length of pursuant to § 3.309(d) or the amount of service, the veteran must waive that dependency and indemnity compensa- excess amount of disability retired pay tion payable. in order to receive VA disability compensation. (Authority: 38 U.S.C. 1112(c)(4), 1310(c); 42 (3) Chapter 61 disability retirees retiring U.S.C. 2210 note) with less than 20 years of service. Vet- erans who receive disability retired pay [71 FR 44919, Aug. 8, 2006] under 10 U.S.C. Chapter 61 with less than 20 years of creditable service are not eligible for concurrent receipt.

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(4) Improved Pension. A veteran may for VA compensation filed by a veteran receive improved pension and military who is entitled to military retired pay. retired pay at the same time without (d) Elections and the right to reelect ei- having to waive military retired pay. ther benefit. (1) A veteran who has filed However, in determining entitlement a waiver of military retired pay under to improved pension, VA will treat this section has elected to receive dis- military retired pay in the same man- ability compensation. A veteran may ner as countable income from other reelect between benefits covered by sources. this section at any time by submitting (c) Waiver—(1) When a waiver is nec- a written, signed statement to VA or to essary. (i) A waiver of military retired the Federal agency that pays the vet- pay is necessary in order to receive dis- eran’s military retired pay. ability compensation when a veteran is (2) An election filed within 1 year eligible for both military retired pay from the date of notification of Depart- and disability compensation but is not ment of Veterans Affairs entitlement eligible under paragraphs (b)(1) or (b)(2) will be considered as ‘‘timely filed’’ for of this section to receive both benefits effective date purposes. See § 3.401(e)(1). at the same time. If the veteran is incompetent, the 1- (ii) Except as provided in paragraph year period will begin on the date that (c)(2) of this section, all veterans who notification is sent to the next friend are eligible to receive both military re- or fiduciary. In initial determinations, tired pay and disability compensation elections may be applied retroactively at the same time under paragraphs if the claimant was not advised of his (b)(1) or (b)(2) of this section must file or her right of election and its effect. a waiver in order to receive the max- (Authority: 38 U.S.C. 5304(a), 5305) imum allowable amount of disability [71 FR 67061, Nov. 20, 2006, as amended at 74 compensation during the phase-in pe- FR 11647, Mar. 19, 2009] riod. The phase-in period ends on De- cember 31, 2013. After the phase-in pe- § 3.751 Statutory awards; retired serv- riod, veterans retired under 10 U.S.C. ice personnel. chapter 61 who are eligible for concur- Retired Regular and Reserve officers rent receipt must still file a waiver and enlisted personnel are not entitled under the circumstances described in to statutory awards of disability com- paragraph (b)(2)(ii) of this section. pensation from the Department of Vet- erans Affairs in addition to their re- (Authority: 10 U.S.C. 1414, 38 U.S.C. 5304, tirement pay. However, under § 3.750(c), 5305) eligible persons may waive an amount (2) When a waiver is not necessary. Un- equal to the basic disability compensa- less paragraph (b)(2)(ii) of this section tion and any statutory award other- applies, veterans who are entitled to wise payable by the Department of receive disability compensation based Veterans Affairs. on a VA determination of individual [41 FR 53797, Dec. 9, 1976] unemployability as well as veterans rated 100-percent disabled under the § 3.752 [Reserved] VA schedule for rating disabilities need not file waivers of military retired pay. § 3.753 Public Health Service. The phase-in period does not apply to Disability compensation may be paid this group of veterans. concurrently with retirement pay to an (3) How to file a waiver of military re- officer of the commissioned corps of tired pay. A veteran may request a the Public Health Service, who was re- waiver of military retired pay in any ceiving disability compensation on De- written, signed statement, including a cember 31, 1956, as follows: VA form, which reflects a desire to (a) An officer who incurred a dis- waive all or some military retired pay. ability before July 29, 1945, but retired The statement must be submitted to for nondisability purposes prior to such VA or to the Federal agency that pays date. the veteran’s military retired pay. VA (b) An officer who incurred a dis- will treat as a waiver an application ability before July 29, 1945, but retired

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for nondisability purposes between awarded for such disease, injury, aggra- July 4, 1952, and December 31, 1956. vation, or death as if such condition (c) An officer who incurred a dis- were service connected. The com- ability between July 29, 1945, and July mencing date of benefits is subject to 3, 1952, but retired for nondisability the provisions of § 3.400(i). purposes between July 4, 1952, and De- cember 31, 1956. (Authority: 38 U.S.C. 1151) [26 FR 1604, Feb. 24, 1961] (1) Benefits under paragraph (a) of this section will be in lieu of any bene- § 3.754 Emergency officers’ retirement fits the veteran may be entitled to re- pay. ceive under the Federal Employees’ A retired emergency officer of World Compensation Act inasmuch as concur- War I has basic eligibility to retire- rent payments are prohibited. (See ment pay by the Department of Vet- § 3.708.) erans Affairs under Pub. L. 87–875 (sec. (2) Where any person is awarded a 11(b), Pub. L. 85–857) from date of filing judgment on or after December 1, 1962, application therefor after October 24, against the United States in a civil ac- 1962, if the following requirements are tion brought pursuant to 28 U.S.C. met: 1346(b), or enters into a settlement or (a) Emergency officers’ retirement compromise on or after December 1, pay would have been granted under 1962, under 28 U.S.C. 2672 or 2677, by Pub. L. 506, 70th Congress (Act of May reason of a disability, aggravation or 24, 1928) if application therefor had death within the purview of this section, no compensation or dependency been filed before May 25, 1929. and indemnity compensation shall be (b) Such retirement pay would have paid to such person for any month be- continued to be payable under section ginning after the date such judgment, 10 of Pub. L. 2, 73d Congress, or under settlement, or compromise on account section 1 of Pub. L. 743, 76th Congress. of such disability, aggravation, or (c) The monthly rate of retirement death becomes final until the total pay at any time between May 24, 1928 amount of benefits which would be paid and May 24, 1929, inclusive, would have except for this provision equals the been lower than the monthly rate of total amount included in such judg- disability compensation payable to the ment, settlement, or compromise. The retired emergency officer. provisions of this paragraph do not CROSS REFERENCE: Emergency officers’ re- apply, however, to any portion of such tirement pay. See § 3.953(b). compensation or dependency and in- [28 FR 72, Jan. 3, 1963] demnity compensation payable for any period preceding the end of the month SPECIAL BENEFITS in which such judgment, settlement or compromise becomes final. § 3.800 Disability or death due to hospitalization, etc. (Authority: 38 U.S.C. 501) This section applies to claims re- (3) If an administrative award was ceived by VA before October 1, 1997. made or a settlement or compromise For claims received by VA on or after became final before December 1, 1962, October 1, 1997, see §§ 3.362 and 3.363. compensation or dependency and in- (a) Where disease, injury, death or demnity compensation may not be au- the aggravation of an existing disease thorized for any period after such or injury occurs as a result of having award settlement, or compromise submitted to an examination, medical whether before or after December 1, or surgical treatment, hospitalization 1962. There is no bar to payment of or the pursuit of a course of vocational compensation or dependency and in- rehabilitation under any law adminis- demnity compensation and no set-off tered by the Department of Veterans because of a judgment which became Affairs and not the result of his (or final before December 1, 1962, unless her) own willful misconduct, disability specified in the terms of the judgment. or death compensation, or dependency (4) Offset of award of benefits under 38 and indemnity compensation will be U.S.C. chapter 21 or 38 U.S.C. chapter 39.

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(i) If a judgment, settlement, or com- a special act, they are not subject to be promise covered by paragraph (a)(2) of varied by the provisions and limita- this section becomes final on or after tions of the public laws, but where not December 10, 2004, and includes an fixed, the rate and continuance of the amount that is specifically designated benefit is subject to variance in accord- for a purpose for which benefits are ance with the public laws. provided under 38 U.S.C. chapter 21 (38 (c) Provisions of act. (1) When pension CFR 3.809 and 3.809a) or 38 U.S.C. chap- or compensation is granted by a special ter 39 (38 CFR 3.808), and if VA awards act, which fixes the rate and com- 38 U.S.C. chapter 21 or 38 U.S.C. chap- mencement, the rate thereunder can- ter 39 benefits after the date on which not be increased nor can any other pen- the judgment, settlement, or com- sion or compensation be paid in the ab- promise becomes final, the amount of sence of the payee’s election, unless the award will be reduced by the the special act expressly states that amount received under the judgment, the benefit granted thereby is in addi- settlement, or compromise for the tion to the benefit which the person is same purpose. entitled to receive under any public (ii) If the amount described in para- law. graph (a)(4)(i) of this section is greater (2) If a special act corrects the nature than the amount of an award under 38 of separation from military service and U.S.C. chapter 21 or 38 U.S.C. chapter does not grant pension or compensa- 39, the excess amount received under tion directly, the claimant acquires a the judgment, settlement, or com- status so that he or she may apply for promise will be offset against benefits and be allowed benefits. The claimant, otherwise payable under 38 U.S.C. then, is placed in the same position he chapter 11. or she would have been if originally released under conditions other than dis- (Authority: 38 U.S.C. 1151(b)(2)) honorable. (b)(1) If death occurred prior to Janu- (d) Service. A special act of Congress, ary 1, 1957, the benefit payable will be reciting that a person is considered to death compensation. See §§ 3.5(b)(2) and have been mustered into the service on 3.702 as to right of election to depend- a named date and honorably discharged ency and indemnity compensation. on a subsequently named date, is suffi- (2) If death occurs on or after Janu- cient regardless of whether the service ary 1, 1957, the benefit payable will be department has any record of such dependency and indemnity compensa- service. tion. (e) Hospitalization. Pension payable under special acts is subject to reduc- CROSS REFERENCES: Claims; injury due to tion pursuant to § 3.551. hospital treatment, etc. See § 3.154. Effective dates; disability or death due to hospitaliza- (Authority: 38 U.S.C. 501(a), 5503) tion, etc. See § 3.400(i). [26 FR 1605, Feb. 24, 1961, as amended at 39 [26 FR 1604, Feb. 24, 1961, as amended at 27 FR 34532, Sept. 26, 1974; 68 FR 34543, June 10, FR 11892, Dec. 1, 1962; 29 FR 16252, Dec. 4, 2003] 1964; 39 FR 34532, Sept. 26, 1974; 53 FR 23237, June 21, 1988; 64 FR 1132, Jan. 8, 1999; 69 FR § 3.802 Medal of Honor. 46435, Aug. 3, 2004; 71 FR 44919, Aug. 8, 2006; 75 FR 57861, Sept. 23, 2010] (a) The Secretary of the Department of the Army, the Department of the § 3.801 Special acts. Navy, the Department of the Air Force, (a) General. A special act is one au- or the Department of Transportation thorizing the payment of benefits to a will determine the eligibility of appli- particular person or persons. If a bene- cants to be entered on the Medal of ficiary in a special act has no claim be- Honor Roll and will deliver to the Sec- fore the Department of Veterans Af- retary of the Department of Veterans fairs, a formal application must be Affairs a certified copy of each certifi- filed before benefits may be awarded. cate issued in which the right of the (b) Limitations. Where the rate, com- person named in the certificate to the mencement, and duration are fixed by special pension is set forth. The special

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pension will be authorized on the basis naval pension allowance under 10 of such certification. U.S.C. 6160 may not exceed one-fourth of the rate of disability pension or (Authority: 38 U.S.C. 1560, 1561) compensation otherwise payable, ex- (b) An award of special pension at the clusive of additional allowances for de- monthly rate specified in 38 U.S.C. 1562 pendents or specific disabilities. will be made as of the date of filing of (c) New awards of naval pension may the application with the Secretary con- not be made concurrently with Depart- cerned. The special pension will be paid ment of Veterans Affairs pension or compensation. in addition to all other payments under laws of the United States. However, a (Authority: 38 U.S.C. 5304(a)) person awarded more than one Medal of Honor may not receive more than one (d) Naval pension remaining unpaid special pension. at the date of the veteran’s death is not payable by the Department of Vet- (Authority: 38 U.S.C. 1562) erans Affairs as an accrued benefit. (c) VA will pay to each person who is [26 FR 1605, Feb. 24, 1961, as amended at 28 receiving or who in the future receives FR 2857, Mar. 22, 1963; 44 FR 22721, Apr. 17, Medal of Honor pension a retroactive 1979] lump sum payment equal to the total § 3.804 Special allowance under 38 amount of Medal of Honor pension that U.S.C. 1312. person would have received during the period beginning the first day of the (a) The provisions of this section are month after the date of the event for applicable to the payment of a special which the veteran earned the Medal of allowance by the Department of Vet- Honor and ending on the last day of the erans Affairs to the surviving dependents of a veteran who served after Sep- month preceding the month in which tember 15, 1940, and who died on or pension was awarded under paragraph after January 1, 1957, as a result of (b) of this section. VA will calculate such service and who was not a fully the lump sum payment using the and currently insured individual under monthly Medal of Honor pension rates title II of the Social Security Act. in effect from the first day of the (b) The special allowance is not pay- month after the date of the event for able: (1) Where the veteran’s death re- which the veteran earned the Medal of sulted from Department of Veterans Honor, to the last day of the month Affairs hospitalization, treatment, ex- preceding the month in which the indi- amination, or training; vidual was initially awarded the Medal (2) Where the veteran’s death was due of Honor pension. VA will not make a to service rendered with the Common- retroactive lump sum payment under wealth Army of the Philippines while this section before October 1, 2003. such forces were in the service of the Armed Forces pursuant to the military (Authority: 38 U.S.C. 1562(f)) order of the President dated July 26, [26 FR 1605, Feb. 24, 1961, as amended at 32 1941, or was due to service in the Phil- FR 6840, May 4, 1967; 44 FR 22721, Apr. 17, ippine Scouts under section 14, Pub. L. 1979; 52 FR 34909, Sept. 16, 1987; 68 FR 55467, 190, 79th Congress. Sept. 26, 2003] (c) A claim for dependency and in- § 3.803 Naval pension. demnity compensation on a form prescribed will be accepted as a claim for (a) Payment of naval pension will be the special allowance where it is deter- authorized on the basis of a certifi- mined that this benefit is payable or cation by the Secretary of the Navy. where a specific inquiry concerning entitlement to the special allowance is (Authority: 10 U.S.C. 6160) received. (b) Awards of naval pension in effect (d) Payment of this allowance will be prior to July 14, 1943, or renewed or authorized on the basis of a certifi- continued may be paid concurrently cation from the Social Security Ad- with Department of Veterans Affairs ministration. Award actions subse- pension or compensation; however, quent to the original award, including

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adjustment and discontinuance, will be (e) The veteran’s surviving spouse is made in accordance with new certifi- unmarried; and cations from the Social Security Ad- (f) The applicant is not an eligible ministration. veteran. (e)(1) The special allowance will be payable only if the death occurred: (i) CROSS REFERENCES: Wife, widow or spouse. While on active duty, active duty for See § 3.50(b). Terminated marital relation- training, or inactive duty training as a ships. See § 3.55. member of a uniformed service (line of [26 FR 1605, Feb. 24, 1961, as amended at 31 duty is not a factor); or FR 4347, Mar. 12, 1966; 37 FR 24662, Nov. 18, (ii) As the result of a disease or in- 1972; 40 FR 54245, Nov. 21, 1975, 41 FR 49636, Nov. 10, 1976; 44 FR 22721, Apr. 17, 1979; 62 FR jury which was incurred or aggravated 5529, Feb. 6, 1997] in line of duty while on active duty or active duty for training, or an injury § 3.806 Death gratuity; certification. which was incurred or aggravated in (a) Where a veteran dies on or after line of duty while on inactive duty January 1, 1957, and during the 120-day training, as a member of a uniformed period which begins on the day fol- service after September 15, 1940, if the lowing the date of his or her discharge veteran was discharged or released or release from active duty, active from the period of such duty, under duty for training, or inactive training conditions other than dishonorable. duty, the Department of Veterans Af- (2) Where the veteran died after sepa- fairs will certify that fact to the Sec- ration from service: (i) Discharge from retary concerned if the Department of service must have been under condi- Veterans Affairs determines on the tions other than dishonorable as out- basis of a claim filed with it that: lined in § 3.12. (1) Death resulted from: (ii) Line of duty and service connec- (i) Disease or injury incurred or ag- tion will be determined as outlined in gravated while on such active duty or § 3.1(k) and (m) and the § 3.300 series. active duty for training; or [26 FR 1605, Feb. 24, 1961] (ii) Injury incurred or aggravated while on such inactive duty training; § 3.805 Loan guaranty for surviving and spouses; certification. (2) The deceased person was dis- A certification of loan guaranty ben- charged or released from such service efits may be extended to surviving under conditions other than dishonor- spouses based on an application filed able. on or after January 1, 1959, if: (b) In all cases, other than listed in (a) The veteran served in the Armed paragraph (a) of this section, the cer- Forces of the United States (Allied Na- tification will be furnished at the re- tions are not included) at any time on quest of the Secretary concerned. or after September 16, 1940; and (c) For the purposes of this section, line of duty is not a factor. The stand- (b) The veteran died in service; or ards, criteria, and procedures for deter- (c) The veteran died after separation mining incurrence or aggravation of a from service and such separation was disease or injury under paragraph (a) of under conditions other than dishonor- this section are those applicable under able provided the veteran’s death was disability and death compensation laws the result of injury or disease incurred administered by the Department of in or aggravated by service in line of Veterans Affairs. duty rendered on or after September 16, 1940, regardless of the date of entrance (Authority: 38 U.S.C. 1323) into such service (cases where com- [26 FR 1605, Feb. 24, 1961, as amended at 40 pensation is payable because of death FR 54245, Nov. 21, 1975] resulting from hospitalization, treatment, examination, or training are not § 3.807 Dependents’ educational assist- included); and ance; certification. (d) The surviving spouse meets the For the purposes of dependents’ edu- requirements of the term ‘‘surviving cational assistance under 38 U.S.C. spouse’’ as outlined in § 3.50; and chapter 35 (see § 21.3020), the child,

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spouse or surviving spouse of a veteran § 3.383(a) of this part. The standards and or serviceperson will have basic eligi- criteria for determining service con- bility if the following conditions are nection, either direct or presumptive, met: are those applicable to the period of (a) General. Basic eligibility exists if service during which the disability was the veteran: incurred or aggravated (38 U.S.C. (1) Was discharged from service under 3501(a)). Cases where eligibility for conditions other than dishonorable, or service-connected benefits is estab- died in service; and lished under § 3.358, 3.361, or 3.800 are (2) Has a permanent total service- not included. connected disability; or (d) Relationship—(1) ‘‘Child’’ means (3) A permanent total service-con- the son or daughter of a veteran who nected disability was in existence at meets the requirements of § 3.57, except the date of the veteran’s death; or as to age and marital status. (4) Died as a result of a service-con- (2) ‘‘Spouse’’ means a person whose nected disability; or (if a service- marriage to the veteran meets the re- person) quirements of § 3.50(a) of this part. (5) Is on active duty as a member of (3) ‘‘Surviving spouse’’ means a per- the Armed Forces and son whose marriage to the veteran (i) Now is, and, for a period of more meets the requirements of §§ 3.50(b) or than 90 days, has been listed by the 3.52 of this part. Secretary concerned as missing in action, captured in line of duty by a hos- (Authority: 38 U.S.C. 1160, 3501) tile force, or forcibly detained or in- CROSS REFERENCES: Discontinuance. See terned in line of duty by a foreign Gov- § 3.503(a)(8) Election; concurrent benefits. See ernment or power; or § 3.707 Nonduplication. See § 21.3023 of this (ii) Has been determined by VA to chapter. have a total disability permanent in [29 FR 9537, July 14, 1964, as amended at 31 nature incurred or aggravated in the FR 4347, Mar. 12, 1966; 34 FR 840, Jan. 18, 1969; line of duty during active military, 38 FR 8658, Apr. 5, 1973; 40 FR 54245, Nov. 21, naval, or air service; is hospitalized or 1975; 53 FR 46607, Nov. 18, 1988; 59 FR 62585, receiving outpatient medical care, Dec. 6, 1994; 69 FR 46435, Aug. 3, 2004; 73 FR 1076, Jan. 7, 2008] services, or treatment for such disability; is likely to be discharged or re- § 3.808 Automobiles or other convey- leased from such service for such dis- ances and adaptive equipment; cer- ability; and the pursuit of a course of tification. education by such individual’s spouse (a) Entitlement. A certificate of eligi- or child for which benefits under 38 bility for financial assistance in the U.S.C. chapter 35 are sought occurred purchase of one automobile or other after December 22, 2006. conveyance in an amount not exceed- (b) Service. Service-connected dis- ing the amount specified in 38 U.S.C. ability or death must have been the re- 3902 (including all State, local, and sult of active military, naval, or air other taxes where such are applicable service on or after April 21, 1898. (Pub. and included in the purchase price) and L. 89–358) Effective September 30, 1966, of basic entitlement to necessary educational assistance for a child (but adaptive equipment will be provided not for a spouse or surviving spouse) to— may be authorized based on service in (1) A veteran who is entitled to com- the Philippine Commonwealth Army or pensation under chapter 11 of title 38, as a Philippine Scout as defined in United States Code, for a disability de- § 3.40(b), (c), or (d) of this part. scribed in paragraph (b) of this section; or (Authority: 38 U.S.C. 3565) (2) A member of the Armed Forces (c) Service connection. For purpose of serving on active duty who has a dis- this section, the term ‘‘service-con- ability described in paragraph (b) of nected disability’’ encompasses com- this section that is the result of an in- binations of disabilities of paired or- jury or disability incurred or disease gans or extremities treated as if serv- contracted in or aggravated by active ice-connected under the provisions of military, naval, or air service.

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(b) Disability. One of the following it is shown to have been placed in the must exist: hands of military authority for trans- (1) Loss or permanent loss of use of mittal. one or both feet; (d) Additional eligibility criteria for (2) Loss or permanent loss of use of adaptive equipment. Claimants for one or both hands; adaptive equipment must also satisfy (3) Permanent impairment of vision the additional eligibility criteria of of both eyes: Central visual acuity of §§ 17.156, 17.157, and 17.158 of this chap- 20/200 or less in the better eye, with ter. corrective glasses, or central visual acuity of more than 20/200 if there is a (e) Definition. The term adaptive field defect in which the peripheral equipment, means generally, that equip- field has contracted to such an extent ment which must be part of or added to that the widest diameter of visual field a conveyance manufactured for sale to subtends an angular distance no great- the general public to make it safe for er than 20° in the better eye. use by the claimant and to assist him (4) Severe burn injury: Deep partial or her in meeting the applicable stand- thickness or full thickness burns re- ards of licensure of the proper licensing sulting in scar formation that cause authority. contractures and limit motion of one (1) With regard to automobiles and or more extremities or the trunk and similar vehicles the term includes a preclude effective operation of an auto- basic automatic transmission as to a mobile. claimant who has lost or lost the use of (5) Amyotrophic lateral sclerosis. a limb. In addition, the term includes, (6) For adaptive equipment eligibility but is not limited to, power steering, only, ankylosis of one or both knees or power brakes, power window lifts and one or both hips. power seats. The term also includes (Authority: 38 U.S.C. 3901, 3902) air-conditioning equipment when such equipment is necessary to the health (c) Claim for conveyance and certifi- and safety of the veteran and to the cation for adaptive equipment. A specific safety of others, and special equipment application for financial assistance in necessary to assist the eligible person purchasing a conveyance is required into or out of the automobile or other which must contain a certification by conveyance, regardless of whether the the claimant that the conveyance will be operated only by persons properly li- automobile or other conveyance is to censed. The application will also be be operated by the eligible person or is considered as an application for the to be operated for such person by an- adaptive equipment to insure that the other person; and any modification of claimant will be able to operate the the interior space of the automobile or conveyance in a manner consistent other conveyance if needed because of with safety and to satisfy the applica- the physical condition of such person ble standards of licensure of the proper in order for such person to enter or op- licensing authorities. Simultaneously erate the vehicle. with the certification provided pursu- (2) With regard to automobiles and ant to the introductory text of this similar vehicles the term includes such section, a claimant for financial assist- items of equipment as the Chief Med- ance in the purchase of an automobile ical Director may, by directive, specify will be furnished a certificate of eligi- as ordinarily necessary for any of the bility for financial assistance in the classes of losses specified in paragraph purchase of such adaptive equipment as (b) of this section and for any combina- may be appropriate to the claimant’s tion of such losses. Such specifications losses unless the need for such equip- of equipment may include a limit on ment is contraindicated by a physical the financial assistance to be provided or legal inability to operate the vehi- based on judgment and experience. cle. There is no time limitation in which to apply. An application by a claimant on active duty will be deemed to have been filed with VA on the date

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(3) The term also includes other (5) The loss or loss of use of both equipment which the Chief Medical Di- upper extremities such as to preclude rector or designee may deem necessary use of the arms at or above the elbow, in an individual case. or (6) Full thickness or subdermal burns (Authority: 38 U.S.C. 501(a), 1151(c)(2), 3902)) that have resulted in contractures with limitation of motion of two or more ex- [36 FR 7588, Apr. 22, 1971, as amended at 38 tremities or of at least one extremity FR 14370, June 1, 1973; 40 FR 37037, Aug. 25, and the trunk. 1975; 43 FR 4423, Feb. 2, 1978; 47 FR 24552, (c) Preclude locomotion. This term June 7, 1982; 53 FR 46607, Nov. 18, 1988; 66 FR means the necessity for regular and 44528, Aug. 24, 2001; 71 FR 44919, Aug. 8, 2006; constant use of a wheelchair, braces, 78 FR 57487, Sept. 19, 2013; 80 FR 10003, Feb. 25, 2015] crutches or canes as a normal mode of locomotion although occasional loco- § 3.809 Specially adapted housing motion by other methods may be pos- under 38 U.S.C. 2101(a)(2)(A)(i). sible. (d) Amyotrophic lateral sclerosis. VA In order for a certificate of eligibility considers § 3.809(b) satisfied if the vet- for assistance in acquiring specially eran or member of the Armed Forces adapted housing under 38 U.S.C. serving on active duty has service-con- 2101(a)(2)(A)(i) or 2101A(a) to be ex- nected amyotrophic lateral sclerosis tended to a veteran or a member of the rated 100 percent disabling under 38 Armed Forces serving on active duty, CFR 4.124a, diagnostic code 8017. the following requirements must be met: (Authority: 38 U.S.C. 501(a), 1151(c)(1), 2101, (a) General. A member of the Armed 2101A) Forces serving on active duty must Cross Reference: Assistance to certain have a disability rated as permanent disabled veterans in acquiring specially and total that was incurred or aggra- adapted housing. See §§ 36.4400 through vated in line of duty in active military, 36.4410 of this chapter. naval, or air service. A veteran must be [78 FR 72576, Dec. 3, 2013] entitled to compensation under chapter 11 of title 38, United States Code, for a § 3.809a Special home adaptation disability rated as permanent and grants under 38 U.S.C. 2101(b). total. A certificate of eligibility for assist- (b) Disability. The disability must be ance in acquiring necessary special due to: home adaptations, or, on or after Octo- (1) The loss or loss of use of both ber 28, 1986, for assistance in acquiring lower extremities, such as to preclude a residence already adapted with nec- locomotion without the aid of braces, essary special features, under 38 U.S.C. crutches, canes, or a wheelchair, 2101(b) or 2101A(a) may be issued to a (2) Blindness in both eyes, having veteran who served after April 20, 1898, only light perception, plus the anatom- or to a member of the Armed Forces ical loss or loss of use of one lower ex- serving on active duty who is eligible tremity, for the benefit under this section on or (3) The loss or loss of use of one lower after December 16, 2003, if the following extremity together with residuals of requirements are met: organic disease or injury which so af- (a) The member of the Armed Forces fect the functions of balance or propul- serving on active duty or veteran is not sion as to preclude locomotion without entitled to a certificate of eligibility the aid of braces, crutches, canes, or a for assistance in acquiring specially wheelchair, adapted housing under § 3.809 nor had (4) The loss or loss of use of one lower the member of the Armed Forces serv- extremity together with the loss or ing on active duty or veteran pre- loss of use of one upper extremity viously received assistance in acquir- which so affect the functions of balance ing specially adapted housing under 38 or propulsion as to preclude loco- U.S.C. 2101(a). A member of the Armed motion without the aid of braces, Forces serving on active duty or vet- crutches, canes, or a wheelchair, eran who first establishes entitlement

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under this section and who later be- adapted housing. See §§ 36.4400 through 36.4410 comes eligible for a certificate of eligi- of this chapter. bility under § 3.809 may be issued a cer- [46 FR 47543, Sept. 29, 1981, as amended at 53 tificate of eligibility under § 3.809. FR 23237, June 21, 1988; 75 FR 57861, Sept. 23, (b) A member of the Armed Forces 2010; 79 FR 54609, Sept. 12, 2014] serving on active duty must have a disability that was incurred or aggravated § 3.810 Clothing allowance. in line of duty in active military, (a) Except as provided in paragraph naval, or air service and meets the re- (d) of this section, a veteran who has a quirements described in either para- service-connected disability, or a dis- graph (b)(1) or (b)(2) of this section. A ability compensable under 38 U.S.C. veteran must be entitled to compensa- 1151 as if it were service connected, is tion under chapter 11 of title 38, United entitled, upon application therefore, to States Code, for a disability that meets an annual clothing allowance, which is the requirements described in either payable in a lump sum, as specified in paragraph (b)(1) or (b)(2) of this sec- this paragraph. tion. (1) One clothing allowance. A veteran (1) VA has rated the disability as per- is entitled to one annual clothing al- manently and totally disabling and it: lowance if— (i) Includes the anatomical loss or (i) A VA examination or a hospital or loss of use of both hands; examination report from a facility (ii) Is due to deep partial thickness specified in § 3.326(b) establishes that burns that have resulted in contrac- the veteran, because of a service-con- ture(s) with limitation of motion of nected disability or disabilities due to two or more extremities or of at least loss or loss of use of a hand or foot one extremity and the trunk; compensable at a rate specified in (iii) Is due to full thickness or sub- § 3.350(a), (b), (c), (d), or (f), wears or uses one qualifying prosthetic or ortho- dermal burns that have resulted in con- pedic appliance (including, but not lim- tracture(s) with limitation of motion ited to, a wheelchair) which tends to of one or more extremities or the wear or tear clothing; or trunk; or (ii) The Under Secretary for Health (iv) Is due to residuals of an inhala- or a designee certifies that— tion injury (including, but not limited (A) A veteran, because of a service- to, pulmonary fibrosis, asthma, and connected disability or disabilities, chronic obstructive pulmonary dis- wears or uses one qualifying prosthetic ease). or orthopedic appliance (including, but (2) The disability is due to blindness not limited to, a wheelchair) which in both eyes, having central visual acu- tends to wear or tear clothing; or ity of 20/200 or less in the better eye (B) A veteran uses medication pre- with the use of a standard correcting scribed by a physician for one skin con- lens. For the purposes of this para- dition, which is due to a service-con- graph, an eye with a limitation in the nected disability, that causes irrep- fields of vision such that the widest di- arable damage to the veteran’s ameter of the visual field subtends an outergarments. angle no greater than 20 degrees shall (2) More than one clothing allowance; be considered as having a central vis- multiple types of garments affected. A ual acuity of 20/200 or less. The dis- veteran is entitled to an annual cloth- ability discussed in this paragraph ing allowance for each prosthetic or or- need not be rated as permanently and thopedic appliance (including, but not totally disabling. limited to, a wheelchair) or medication (Authority: 38 U.S.C. 1151(c)(1), 2101, 2101A, used by the veteran if each appliance 2104) or medication— (i) Satisfies the requirements of para- CROSS REFERENCE: Assistance to certain graph (a)(1) of this section; and disabled veterans in acquiring specially (ii) Affects a distinct type of article of clothing or outergarment.

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(3) Two clothing allowances; single type tion for a period of more than 60 days of garment affected. A veteran is enti- and is furnished clothing without tled to two annual clothing allowances charge by the institution, VA shall re- if a veteran uses more than one pros- duce the amount of the annual clothing thetic or orthopedic appliance, (includ- allowance by 1/365th of the amount oth- ing, but not limited to, a wheelchair), erwise payable for each day the veteran medication for more than one skin con- was incarcerated during the 12-month dition, or an appliance and a medica- period preceding the anniversary date tion, and the appliance(s) or medica- for which entitlement is established. tion(s)— No reduction shall be made for the first (i) Each satisfy the requirements of 60 days of incarceration. paragraph (a)(1) of this section; and (ii) Together tend to wear or tear a (Authority: 38 U.S.C. 5313A) single type of article of clothing or ir- [37 FR 19134, Sept. 19, 1972, as amended at 39 reparably damage a type of FR 2362, Jan. 21, 1974; 49 FR 28242, July 11, outergarment at an increased rate of 1984; 56 FR 5756, Feb. 13, 1991; 62 FR 35422, damage to the clothing or July 1, 1997; 76 FR 70885, Nov. 16, 2011; 77 FR outergarment due to a second appli- 34218, June 11, 2012] ance or medication. (b) Effective August 1, 1972, the ini- § 3.811 Minimum income annuity and gratuitous annuity. tial lump sum clothing allowance is due and payable for veterans meeting (a) Eligibility for minimum income an- the eligibility requirements of para- nuity. The minimum income annuity graph (a) of this section as of that date. authorized by Public Law 92–425 as Subsequent annual payments for those amended is payable to a person: meeting the eligibility requirements of (1) Whom the Department of Defense paragraphs (a) of this section will be- or the Department of Transportation come due on the anniversary date has determined meets the eligibility thereafter, both as to initial claims criteria of section 4(a) of Pub. L. 92–425 and recurring payments under pre- as amended other than section 4(a)(1) viously established entitlement. and (2); and (c)(1) Except as provided in paragraph (2) Who is eligible for pension under (c)(2) of this section, the application subchapter III of chapter 15 of title 38, for clothing allowance must be filed United States Code, or section 306 of within 1 year of the anniversary date the Veterans’ and Survivors’ Pension (August 1) for which entitlement is ini- Improvement Act of 1978; and tially established, otherwise, the appli- (3) Whose annual income, as deter- cation will be acceptable only to effect mined in establishing pension eligi- payment of the clothing allowance be- bility, is less than the maximum an- coming due on any succeeding anniver- nual rate of pension in effect under 38 sary date for which entitlement is es- U.S.C. 1541(b). tablished, provided the application is (b) Computation of the minimum income filed within 1 year of such date. The 1- annuity payment—(1) Annual income. VA year period for filing application will will determine a beneficiary’s annual include the anniversary date and ter- income for minimum income annuity minate on July 31 of the following purposes under the provisions of §§ 3.271 year. and 3.272 of this part for beneficiaries (2) Where the initial determination of receiving improved pension, or under service connection for the qualifying §§ 3.260 through 3.262 of this part for disability is made subsequent to an an- beneficiaries receiving old law or sec- niversary date for which entitlement is tion 306 pensions, except that the established, the application for cloth- amount of the minimum income annu- ing allowance may be filed within 1 ity will be excluded from the calcula- year from the date of notification to tion. the veteran of such determination. (2) VA will determine the minimum income annuity payment for bene- (Authority: 38 U.S.C. 1162) ficiaries entitled to improved pension (d) If a veteran is incarcerated in a by subtracting the annual income for Federal, State, or local penal institu- minimum income annuity purposes

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from the maximum annual pension § 3.812 Special allowance payable rate under 38 U.S.C. 1541(b). under section 156 of Pub. L. 97–377. (3) VA will determine the minimum The provisions of this section apply income annuity payment for bene- to the payment of a special allowance ficiaries receiving old law and section to certain surviving spouses and chil- 306 pensions by reducing the maximum dren of individuals who died on active annual pension rate under 38 U.S.C. duty prior to August 13, 1981, or who 1541(b) by the amount of the Retired died as a result of a service-connected Servicemen’s Family Protection Plan disability which was incurred or aggra- benefit, if any, that the beneficiary re- vated prior to August 13, 1981. This spe- ceives and subtracting from that cial allowance is a replacement for cer- amount the annual income for min- tain social security benefits which imum income annuity purposes. were either reduced or terminated by (4) VA will recompute the monthly provisions of the Omnibus Budget Rec- minimum income annuity payment onciliation Act of 1981. whenever there is a change to the max- (a) Eligibility requirements. (1) A deter- imum annual rate of pension in effect mination must first be made that the under 38 U.S.C. 1541(b), and whenever person on whose earnings record the there is a change in the beneficiary’s claim is based either died on active income. duty prior to August 13, 1981, or died as (c) An individual otherwise eligible a result of a service-connected dis- for pension under subchapter III of ability which was incurred or aggra- chapter 15 of title 38, United States vated prior to August 13, 1981. For pur- Code, or section 306 of the Veterans’ poses of this determination, character and Survivors’ Pension Improvement of discharge is not a factor for consid- Act of 1978 shall be considered eligible eration, and death on active duty sub- for pension for purposes of determining sequent to August 12, 1981, is qualifying eligibility for the minimum income an- provided that the death resulted from a nuity even though as a result of adding service-connected disability which was the amount of the minimum income incurred or aggravated prior to August annuity authorized under Public Law 13, 1981. 92–425 as amended to any other count- (2) Once a favorable determination able income, no amount of pension is has been made under paragraph (a)(1) due. of this section, determinations as to (d) If the Department of Defense or the age, relationship and school at- the Department of Transportation de- tendance requirements contained in termines that a minimum income an- paragraphs (a)(1) and (b)(1) of section nuitant also is entitled to the gratu- 156 of Pub. L. 97–377 will be made. In itous annuity authorized by Pub. L. making these eligibility determina- 100–456 as amended, which is payable to tions VA shall apply the provisions of certain surviving spouses of the Social Security Act, and any regu- servicemembers who died before No- lations promulgated pursuant thereto, vember 1, 1953, and were entitled to re- as in effect during the claimant’s pe- tired or retainer pay on the date of riod of eligibility. Unless otherwise death, VA will combine the payment of provided in this section, when issues the gratuitous annuity with the min- are raised concerning eligibility or en- imum income annuity payment. titlement to this special allowance (e) Termination. Other than as pro- which cannot be appropriately resolved vided in paragraph (c) of this section, if under the provisions of the Social Se- a beneficiary receiving the minimum curity Act, or the regulations promul- income annuity becomes ineligible for gated pursuant thereto, the provisions pension, VA will terminate the min- of title 38, Code of Federal Regulations, imum income annuity effective the are for application. same date. (b) Computation of payment rate—(1) Basic entitlement rate. A basic entitle- (Authority: Sec. 4, Pub. L. 92–425, 86 Stat. ment rate will be computed for each el- 706, 712, as amended (10 U.S.C. 1448 note)) igible claimant in accordance with the [63 FR 412, Jan. 6, 1998, as amended at 63 FR provisions of subparagraphs (a)(2) and 62943, Nov. 10, 1998] (b)(2) of section 156 of Pub. L. 97–377

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using data to be provided by the Social ment which affects eligibility or enti- Security Administration. This basic tlement. entitlement rate will then be used to (6) Rounding of monthly rates. Any compute the monthly payment rate as monthly rate computed under the pro- described in paragraphs (b)(2) to (b)(6) visions of this paragraph, if not a mul- of this section. tiple of $1, shall be rounded to the next (2) Original or reopened awards to sur- lower multiple of $1. viving spouses. The monthly payment (c) Claimants not entitled to this special rate shall be equal to the basic entitle- allowance. The following are not enti- ment rate increased by the overall av- tled to this special allowance for the erage percentage (rounded to the near- reasons indicated. est tenth of a percent) of each legisla- (1) Claimants eligible for death bene- tive increase in dependency and indem- fits under 38 U.S.C. 1151. The deaths in nity compensation rates under 38 such cases are not service-connected. U.S.C. 1311 which became effective con- (2) Claimants eligible for death bene- currently with or subsequent to the ef- fits under 38 U.S.C. 1318. The deaths in fective date of the earliest adjustment such cases are not service connected. under section 215(i) of the Social Secu- (3) Claimants whose claims are based rity Act that was disregarded in com- on an individual’s service in: puting the basic entitlement rate. (i) The Commonwealth Army of the (3) Original and reopened awards to Philippines while such forces were in children. The monthly payment rate the service of the Armed Forces pursu- shall be equal to the basic entitlement ant to the military order of the Presi- rate increased by the overall average dent dated July 26, 1941, including rec- percentage (rounded to the nearest ognized guerrilla forces (see 38 U.S.C. tenth of a percent) of each legislative 107). increase in the rates of educational assistance allowance under 38 U.S.C. (ii) The Philippine Scouts under sec- 3531(b) which became effective concur- tion 14, Pub. L. 190, 79th Congress (see rently with or subsequent to the effec- 38 U.S.C. 107). tive date of the earliest adjustment (iii) The commissioned corps of the under section 215(i) of the Social Secu- Public Health Service (specifically ex- rity Act that was disregarded in com- cluded by section 156 of Pub. L. 97–377), puting the basic entitlement rate. or (4) Subsequent legislative increases in (iv) The National Oceanic and Atmos- rates. The monthly rate of special al- pheric Administration (specifically ex- lowance payable to a surviving spouse cluded by section 156 of Pub. L. 97–377). shall be increased by the same overall (d) Appellate jurisdiction. VA shall average percentage increase (rounded have appellate jurisdiction of all deter- to the nearest tenth of a percent) and minations made in connection with on the same effective date as any legis- this special allowance. lative increase in the rates payable (e) Claims. Claimants must file or under 38 U.S.C. 1311. The monthly rate submit a complete claim on a paper or of special allowance payable to a child electronic form prescribed by the Sec- shall be increased by the same overall retary in order for VA to pay this spe- average percentage increase (rounded cial allowance. When VA receives an to the nearest tenth of a percent) and intent to file a claim or inquiries as to on the same effective date as any legis- eligibility, VA will follow the proce- lative increase in the rates payable dures outlined in § 3.155. Otherwise, the under 38 U.S.C. 3531(b). date of receipt of the complete claim (5) Amendment of awards. Prompt ac- will be accepted as the date of claim tion shall be taken to amend any for this special allowance. See §§ 3.150, award of this special allowance to con- 3.151, 3.155, 3.400. form with evidence indicating a change (f) Retroactivity and effective dates. in basic eligibility, any basic entitle- There is no time limit for filing a ment rate, or any effective date pre- claim for this special allowance. Upon viously determined. It is the claimant’s the filing of a complete claim, benefits responsibility to promptly notify VA of shall be payable for all periods of eligi- any change in their status or employ- bility beginning on or after the first

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day of the month in which the claim- Republic of Vietnam during active ant first became eligible for this spe- military, naval or air service and the cial allowance, except that no payment onset of the claimed disease, or (3) if it may be made for any period prior to is determined, based on evidence in the January 1, 1983. veteran’s service records and other records provided by the Secretary of (Authority: Sec. 156, Pub. L. 97–377, 96 Stat. 1830, 1920 (1982)) Defense, that the veteran was not exposed to dioxin during active military, [49 FR 21709, May 23, 1984, as amended at 54 naval or air service in the Republic of FR 26030, June 21, 1989; 60 FR 20643, Apr. 27, Vietnam during the Vietnam era. 1995; 79 FR 57697, Sept. 25, 2014] (d) Similarity to service-connected bene- § 3.813 Interim benefits for disability fits. For purposes of all laws adminis- or death due to chloracne or tered by VA (except chapters 11 and 13 porphyria cutanea tarda. of title 38 U.S.C.), a disease estab- (a) Disability benefits. Except as pro- lishing eligibility for disability or vided in paragraph (c) of this section, a death benefits under this section shall veteran who served in the active mili- be treated as if it were service-con- tary, naval or air service in the Repub- nected, and the receipt of disability or lic of Vietnam during the Vietnam era, death benefits shall be treated as if and who suffers from chloracne or such benefits were compensation or de- porphyria cutanea tarda which became pendency and indemnity compensation, manifest within one year after the date respectively. of the veteran’s most recent departure (e) Effective dates. Benefits under this from the Republic of Vietnam during section may not be paid for any period such service, shall be paid interim dis- prior to October 1, 1984, nor for any pe- ability benefits under this section in riod after September 30, 1986. the same manner and to the same ex- (Authority: Pub. L. 98–542) tent that compensation would be pay- [50 FR 34460, Aug. 26, 1985] able if such disabilities were service- connected. § 3.814 Monetary allowance under 38 (b) Death benefits. Except as provided U.S.C. chapter 18 for an individual in paragraph (c) of this section, if a suffering from spina bifida whose veteran described in paragraph (a) of biological father or mother is or this section dies as a result of was a Vietnam veteran or a veteran chloracne or porphyria cutanea tarda, with covered service in Korea. the veteran’s survivors shall be paid in- (a) Monthly monetary allowance. VA terim death benefits under this section will pay a monthly monetary allow- based upon the same elgibility require- ance under subchapter I of 38 U.S.C. ments and at the same rates that de- chapter 18, based upon the level of dis- pendency and indemnity compensation ability determined under the provi- would be payable if the death were sions of paragraph (d) of this section, service-connected. to or for a person who VA has deter- (c) Exceptions. Benefits under this mined is an individual suffering from section are not payable for any month spina bifida whose biological mother or for which compensation or dependency father is or was a Vietnam veteran or a and indemnity compensation is payable veteran with covered service in Korea. for the same disability or death, nor Receipt of this allowance will not af- are benefits payable under this section fect the right of the individual or any (1) when there is affirmative evidence related person to receive any other that the disease was not incurred by benefit to which he or she may be enti- the veteran during service in the Re- tled under any law administered by public of Vietnam during the Vietnam VA. An individual suffering from spina era, (2) when there is affirmative evi- bifida is entitled to only one monthly dence to establish that an intercurrent allowance under this section, even if injury or disease, which is a recognized the individual’s biological father and cause of the disease for which benefits mother are or were both Vietnam vet- are being claimed, was suffered by the erans or veterans with covered service veteran between the date of the vet- in Korea. eran’s most recent departure from the (b) [Reserved]

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(c) Definitions—(1) Vietnam veteran. (4) Spina bifida. For the purposes of For the purposes of this section, the this section, the term ‘‘spina bifida’’ term ‘‘Vietnam veteran’’ means a per- means any form and manifestation of son who performed active military, spina bifida except spina bifida occulta. naval, or air service in the Republic of (d) Disability evaluations. (1) Except as Vietnam during the period beginning otherwise specified in this paragraph, on January 9, 1962, and ending on May VA will determine the level of payment 7, 1975, without regard to the charac- as follows: terization of the person’s service. Serv- (i) Level I. The individual walks with- ice in the Republic of Vietnam includes out braces or other external support as service in the waters offshore and serv- his or her primary means of mobility ice in other locations if the conditions in the community, has no sensory or of service involved duty or visitation in motor impairment of the upper ex- the Republic of Vietnam. tremities, has an IQ of 90 or higher, and (2) Covered service in Korea. For the is continent of urine and feces without purposes of this section, the term the use of medication or other means ‘‘veteran with covered service in to control incontinence. Korea’’ means a person who served in (ii) Level II. Provided that none of the disabilities is severe enough to warrant the active military, naval, or air serv- payment at Level III, and the indi- ice in or near the Korean DMZ between vidual: walks with braces or other ex- September 1, 1967, and August 31, 1971, ternal support as his or her primary and who is determined by VA, in con- means of mobility in the community; sultation with the Department of De- or, has sensory or motor impairment of fense, to have been exposed to an herbi- the upper extremities, but is able to cide agent during such service. Expo- grasp pen, feed self, and perform self sure to an herbicide agent will be con- care; or, has an IQ of at least 70 but ceded if the veteran served between less than 90; or, requires medication or April 1, 1968, and August 31, 1971, in a other means to control the effects of unit that, as determined by the Depart- urinary bladder impairment and no ment of Defense, operated in or near more than two times per week is un- the Korean DMZ in an area in which able to remain dry for at least three herbicides are known to have been ap- hours at a time during waking hours; plied during that period, unless there is or, requires bowel management tech- affirmative evidence to establish that niques or other treatment to control the veteran was not exposed to any the effects of bowel impairment but such agent during that service. does not have fecal leakage severe or (3) Individual. For the purposes of frequent enough to require wearing of this section, the term ‘‘individual’’ absorbent materials at least four days means a person, regardless of age or a week; or, has a colostomy that does marital status, whose biological father not require wearing a bag. or mother is or was a Vietnam veteran (iii) Level III. The individual uses a and who was conceived after the date wheelchair as his or her primary means on which the veteran first served in the of mobility in the community; or, has Republic of Vietnam during the Viet- sensory or motor impairment of the nam era, or whose biological father or upper extremities severe enough to pre- mother is or was a veteran with cov- vent grasping a pen, feeding self, and ered service in Korea and who was con- performing self care; or, has an IQ of 69 ceived after the date on which the vet- or less; or, despite the use of medica- eran first had covered service in Korea tion or other means to control the ef- as defined in this section. Notwith- fects of urinary bladder impairment, at standing the provisions of § 3.204(a)(1), least three times per week is unable to VA will require the types of evidence remain dry for three hours at a time specified in §§ 3.209 and 3.210 sufficient during waking hours; or, despite bowel to establish in the judgment of the Sec- management techniques or other treat- retary that a person is the biological ment to control the effects of bowel son or daughter of a Vietnam veteran impairment, has fecal leakage severe or a veteran with covered service in or frequent enough to require wearing Korea. of absorbent materials at least four

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days a week; or, regularly requires dividual from ambulating, grasping a manual evacuation or digital stimula- pen, feeding himself or herself, per- tion to empty the bowel; or, has a co- forming self care, or from achieving lostomy that requires wearing a bag. urinary or fecal continence. If any of (2) If an individual who would other- those deficits are present, VA will pay wise be paid at Level I or II has one or the individual at Level III. In either more disabilities, such as blindness, case, VA will reassess the level of dis- uncontrolled seizures, or renal failure ability when the individual reaches the that result either from spina bifida, or age of one year. from treatment procedures for spina (6) VA will reassess the level of pay- bifida, the Director of the Compensa- ment whenever it receives medical evi- tion Service may increase the monthly dence indicating that a change is war- payment to the level that, in his or her judgment, best represents the extent to ranted. For individuals between the which the disabilities resulting from ages of one and twenty-one, however, it spina bifida limit the individual’s abil- must reassess the level of payment at ity to engage in ordinary day-to-day least every five years. activities, including activities outside (e) Effective dates. Except as other- the home. A Level II or Level III pay- wise provided, VA will award the mone- ment will be awarded depending on tary allowance for an individual suf- whether the effects of a disability are fering from spina bifida based on an of equivalent severity to the effects initial claim or supplemental claim as specified under Level II or Level III. of the date VA received the claim (or (3) VA may accept statements from the date of birth if the claim is re- private physicians, or examination received within 1 year of that date) or ports from government or private insti- the date entitlement arose, whichever tutions, for the purpose of rating spina is later. bifida claims without further examina- (1) VA will increase benefits as of the tion, provided the statements or re- earliest date the evidence establishes ports are adequate for assessing the that the level of severity increased, but level of disability due to spina bifida only if the beneficiary applies for an under the provisions of paragraph (d)(1) increase within one year of that date. of this section. In the absence of ade- (2) If a claimant reopens a previously quate medical information, VA will schedule an examination for the pur- disallowed claim based on corrected pose of assessing the level of disability. military records, VA will award the (4) VA will pay an individual eligible benefit from the latest of the following for a monetary allowance due to spina dates: the date the veteran or bene- bifida at Level I unless or until it re- ficiary applied for a correction of the ceives medical evidence supporting a military records; the date the dis- higher payment. When required to re- allowed claim was filed; or, the date assess the level of disability under one year before the date of receipt of paragraph (d)(5) or (d)(6) of this sec- the reopened claim. tion, VA will pay an individual eligible (f) Reductions and discontinuances. VA for this monetary allowance at Level I will generally reduce or discontinue in the absence of evidence adequate to awards according to the facts found ex- support a higher level of disability or if cept as provided in §§ 3.105 and 3.114(b). the individual fails to report, without (1) If benefits were paid erroneously good cause, for a scheduled examina- because of beneficiary error, VA will tion. Examples of good cause include, reduce or discontinue benefits as of the but are not limited to, the illness or effective date of the erroneous award. hospitalization of the claimant, death (2) If benefits were paid erroneously of an immediate family member, etc. because of administrative error, VA (5) VA will pay individuals under the age of one year at Level I unless a pedi- will reduce or discontinue benefits as atric neurologist or a pediatric neuro- of the date of last payment. surgeon certifies that, in his or her (Authority: 38 U.S.C. 501, 1805, 1811, 1812, 1821, medical judgment, there is a neuro- 1831, 1832, 1833, 1834, 5101, 5110, 5111, 5112) logical deficit that will prevent the in-

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CROSS REFERENCE: 38 CFR 3.307(a)(6)(iv). covered birth defect were spina bifida. [62 FR 51279, Sept. 30, 1997, as amended at 65 If, but for the individual’s one or more FR 35282, June 2, 2000; 66 FR 13436, Mar. 6, additional covered birth defects, the 2001; 67 FR 49587, July 31, 2002; 76 FR 4249, monetary allowance payable to or for Jan. 25, 2011; 79 FR 2100, Jan. 13, 2014; 84 FR the individual would be based on an 171, Jan. 18, 2019] evaluation at Level I, II, or III, respectively, under § 3.814(d), the evaluation § 3.815 Monetary allowance under 38 U.S.C. chapter 18 for an individual of the individual’s level of disability with disability from covered birth under paragraph (e) of this section will defects whose biological mother is be not less than Level II, III, or IV, re- or was a Vietnam veteran; identi- spectively. fication of covered birth defects. (b) No effect on other VA benefits. Re- (a) Monthly monetary allowance—(1) ceipt of a monetary allowance under 38 General. VA will pay a monthly mone- U.S.C. chapter 18 will not affect the tary allowance under subchapter II of right of the individual, or the right of 38 U.S.C. chapter 18 to or for an indi- any person based on the individual’s re- vidual whose biological mother is or lationship to that person, to receive was a Vietnam veteran and who VA has any other benefit to which the indi- determined to have disability resulting vidual, or that person, may be entitled from one or more covered birth defects. under any law administered by VA. Except as provided in paragraph (a)(3) (c) Definitions—(1) Vietnam veteran. of this section, the amount of the mon- For the purposes of this section, the etary allowance paid will be based upon term Vietnam veteran means a person the level of such disability suffered by who performed active military, naval, the individual, as determined in ac- or air service in the Republic of Viet- cordance with the provisions of para- nam during the period beginning on graph (e) of this section. February 28, 1961, and ending on May 7, (2) Affirmative evidence of cause other 1975, without regard to the character- than mother’s service during Vietnam era. ization of the person’s service. Service No monetary allowance will be pro- in the Republic of Vietnam includes vided under this section based on a par- service in the waters offshore and serv- ticular birth defect of an individual in ice in other locations if the conditions any case where affirmative evidence es- of service involved duty or visitation in tablishes that the birth defect results the Republic of Vietnam. from a cause other than the active (2) Individual. For the purposes of military, naval, or air service of the in- this section, the term individual means dividual’s mother during the Vietnam a person, regardless of age or marital era and, in determining the level of dis- status, whose biological mother is or ability for an individual with more was a Vietnam veteran and who was than one birth defect, the particular conceived after the date on which the defect resulting from other causes will veteran first entered the Republic of be excluded from consideration. This Vietnam during the period beginning will not prevent VA from paying a on February 28, 1961, and ending on monetary allowance under this section May 7, 1975. Notwithstanding the provi- for other birth defects. sions of § 3.204(a)(1), VA will require the (3) Nonduplication; spina bifida. In the types of evidence specified in §§ 3.209 case of an individual whose only cov- and 3.210 sufficient to establish that a ered birth defect is spina bifida, a mon- person is the biological son or daughter etary allowance will be paid under of a Vietnam veteran. § 3.814, and not under this section, nor (3) Covered birth defect. For the pur- will the individual be evaluated for dis- poses of this section, the term covered ability under this section. In the case birth defect means any birth defect of an individual who has spina bifida identified by VA as a birth defect that and one or more additional covered is associated with the service of women birth defects, a monetary allowance Vietnam veterans in the Republic of will be paid under this section and the Vietnam during the period beginning amount of the monetary allowance will on February 28, 1961, and ending on be not less than the amount the indi- May 7, 1975, and that has resulted, or vidual would receive if his or her only may result, in permanent physical or

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mental disability. However, the term (xiii) Osteogenesis imperfecta; covered birth defect does not include a (xiv) Pectus excavatum; condition due to a: (xv) Phenylketonuria; (i) Familial disorder; (xvi) Sickle cell disease; (ii) Birth-related injury; or (xvii) Tay-Sachs disease; (iii) Fetal or neonatal infirmity with (xviii) Thalassemia; and well-established causes. (xix) Wilson’s disease. (d) Identification of covered birth de- (3) Conditions that are congenital fects. All birth defects that are not ex- malignant neoplasms are not covered cluded under the provisions of this birth defects. These include, but are paragraph are covered birth defects. not limited to, the following: (1) Covered birth defects include, but (i) Medulloblastoma; are not limited to, the following (how- (ii) Neuroblastoma; ever, if a birth defect is determined to (iii) Retinoblastoma; be familial in a particular family, it (iv) Teratoma; and will not be a covered birth defect): (v) Wilm’s tumor. (i) Achondroplasia; (4) Conditions that are chromosomal (ii) Cleft lip and cleft palate; disorders are not covered birth defects. (iii) Congenital heart disease; These include, but are not limited to, (iv) Congenital talipes equinovarus the following: (clubfoot); (i) Down syndrome and other (v) Esophageal and intestinal atresia; Trisomies; (vi) Hallerman-Streiff syndrome; (ii) Fragile X syndrome; (vii) Hip dysplasia; (iii) Klinefelter’s syndrome; and (viii) Hirschprung’s disease (con- (iv) Turner’s syndrome. genital megacolon); (5) Conditions that are due to birth- (ix) Hydrocephalus due to aqueductal related injury are not covered birth de- stenosis; fects. These include, but are not lim- (x) Hypospadias; ited to, the following: (xi) Imperforate anus; (i) Brain damage due to anoxia dur- (xii) Neural tube defects (including ing or around time of birth; spina bifida, encephalocele, and (ii) Cerebral palsy due to birth trau- anencephaly); ma, (iii) Facial nerve palsy or other pe- (xiii) Poland syndrome; ripheral nerve injury; (xiv) Pyloric stenosis; (iv) Fractured clavicle; and (xv) Syndactyly (fused digits); (v) Horner’s syndrome due to forceful (xvi) Tracheoesophageal fistula; manipulation during birth. (xvii) Undescended testicle; and (6) Conditions that are due to a fetal (xviii) Williams syndrome. or neonatal infirmity with well-estab- (2) Birth defects that are familial dis- lished causes or that are miscellaneous orders, including hereditary genetic pediatric conditions are not covered conditions, are not covered birth de- birth defects. These include, but are fects. Familial disorders include, but not limited to, the following: are not limited to, the following, un- (i) Asthma and other allergies; less the birth defect is not familial in a (ii) Effects of maternal infection dur- particular family: ing pregnancy, including but not lim- (i) Albinism; ited to, maternal rubella, toxoplas- (ii) Alpha-antitrypsin deficiency; mosis, or syphilis; (iii) Crouzon syndrome; (iii) Fetal alcohol syndrome or fetal (iv) Cystic fibrosis; effects of maternal drug use; (v) Duchenne’s muscular dystrophy; (iv) Hyaline membrane disease; (vi) Galactosemia; (v) Maternal-infant blood incompati- (vii) Hemophilia; bility; (viii) Huntington’s disease; (vi) Neonatal infections; (ix) Hurler syndrome; (vii) Neonatal jaundice; (x) Kartagener’s syndrome (Primary (viii) Post-infancy deafness/hearing Ciliary Dyskinesia); impairment (onset after the age of one (xi) Marfan syndrome; year); (xii) Neurofibromatosis; (ix) Prematurity; and

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(x) Refractive disorders of the eye. (B) The individual has disfigurement (7) Conditions that are developmental or scarring of the head, face, or neck disorders are not covered birth defects. without gross distortion or gross asym- These include, but are not limited to, metry of any facial feature (nose, chin, the following: forehead, eyes (including eyelids), ears (i) Attention deficit disorder; (auricles), cheeks, or lips). (ii) Autism; (iii) Level II. The individual meets (iii) Epilepsy diagnosed after infancy one or more of the following criteria: (after the age of one year); (A) The individual has residual phys- (iv) Learning disorders; and ical or mental effects that frequently (v) Mental retardation (unless part of or constantly limit or prevent some a syndrome that is a covered birth de- daily activities, but the individual is fect). able to work or attend school, carry (8) Conditions that do not result in out most household chores, travel, and permanent physical or mental dis- provide age-appropriate self-care, such ability are not covered birth defects. as eating, dressing, grooming, and car- These include, but are not limited to: rying out personal hygiene, and com- (i) Conditions rendered non-disabling munication, behavior, social inter- through treatment; action, and intellectual functioning are (ii) Congenital heart problems sur- appropriate for age; or gically corrected or resolved without (B) The individual has disfigurement disabling residuals; or scarring of the head, face, or neck (iii) Heart murmurs unassociated with either gross distortion or gross with a diagnosed cardiac abnormality; asymmetry of one facial feature or one (iv) Hemangiomas that have resolved paired set of facial features (nose, chin, with or without treatment; and forehead, eyes (including eyelids), ears (v) Scars (other than of the head, (auricles), cheeks, or lips). face, or neck) as the only residual of (iv) Level III. The individual meets corrective surgery for birth defects. one or more of the following criteria: (e) Disability evaluations. Whenever (A) The individual has residual phys- VA determines, upon receipt of com- ical or mental effects that frequently petent medical evidence, that an indi- or constantly limit or prevent most vidual has one or more covered birth daily activities, but the individual is defects, VA will determine the level of able to provide age-appropriate self- disability currently resulting, in com- care, such as eating, dressing, groom- bination, from the covered birth de- ing, and carrying out personal hygiene; fects and associated disabilities. No (B) The individual is unable to work monetary allowance will be payable or attend school, travel, or carry out under this section if VA determines household chores, or does so intermit- under this paragraph that an indi- tently and with difficulty; vidual has no current disability result- (C) The individual’s communication, ing from the covered birth defects, un- behavior, social interaction, and intel- less VA determines that the provisions lectual functioning are not entirely ap- of paragraph (a)(3) of this section are propriate for age; or for application. Except as otherwise (D) The individual has disfigurement provided in paragraph (a)(3) of this sec- or scarring of the head, face, or neck tion, VA will determine the level of with either gross distortion or gross disability as follows: asymmetry of two facial features or (1) Levels of disability. two paired sets of facial features (nose, (i) Level 0. The individual has no cur- chin, forehead, eyes (including eyelids), rent disability resulting from covered ears (auricles), cheeks, or lips). birth defects. (v) Level IV. The individual meets one (ii) Level I. The individual meets one or more of the following criteria: or more of the following criteria: (A) The individual has residual phys- (A) The individual has residual physical or mental effects that prevent age- ical or mental effects that only occa- appropriate self-care, such as eating, sionally or intermittently limit or pre- dressing, grooming, and carrying out vent some daily activities; or personal hygiene;

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(B) The individual’s communication, whenever it receives evidence indi- behavior, social interaction, and intel- cating that a change is warranted. lectual functioning are grossly inap- (h) Referrals. If a regional office is un- propriate for age; or clear in any case as to whether a condi- (C) The individual has disfigurement tion is a covered birth defect, it may or scarring of the head, face, or neck refer the issue to the Director of the with either gross distortion or gross Compensation Service for determina- asymmetry of three facial features or tion. three paired sets of facial features (i) Effective dates. Except as provided (nose, chin, forehead, eyes (including in § 3.114(a) or paragraph (i)(1) or (2) of eyelids), ears (auricles), cheeks, or this section, VA will award the mone- lips). tary allowance under subchapter II of (2) Assessing limitation of daily activi- 38 U.S.C. chapter 18, for an individual ties. Physical or mental effects on the with disability resulting from one or following functions are to be consid- more covered birth defects, based on an ered in assessing limitation of daily ac- initial claim or supplemental claim, as tivities: of the date VA received the claim (or (i) Mobility (ability to stand and the date of birth if the claim is re- walk, including balance and coordina- ceived within one year of that date), tion); the date entitlement arose, or Decem- (ii) Manual dexterity; ber 1, 2001, whichever is latest. Subject (iii) Stamina; to the condition that no benefits may (iv) Speech; be paid for any period prior to Decem- (v) Hearing; ber 1, 2001: (vi) Vision (other than correctable re- (1) VA will increase benefits as of the fraction errors); earliest date the evidence establishes (vii) Memory; that the level of severity increased, but (viii) Ability to concentrate; only if the beneficiary applies for an (ix) Appropriateness of behavior; and increase within one year of that date. (x) Urinary and fecal continence. (2) If a claimant reopens a previously (f) Information for determining whether disallowed claim based on corrected individuals have covered birth defects and military records, VA will award the rating disability levels. (1) VA may ac- benefit from the latest of the following cept statements from private physi- dates: the date the veteran or bene- cians, or examination reports from ficiary applied for a correction of the government or private institutions, for military records; the date the dis- the purposes of determining whether allowed claim was filed; or, the date an individual has a covered birth defect one year before the date of receipt of and for rating claims for covered birth the reopened claim. defects. If they are adequate for such (j) Reductions and discontinuances. VA purposes, VA may make the determina- will generally reduce or discontinue tion and rating without further exam- awards under subchapter II of 38 U.S.C. ination. In the absence of adequate in- chapter 18 according to the facts found formation, VA may schedule examina- except as provided in §§ 3.105 and tions for the purpose of determining 3.114(b). whether an individual has a covered (1) If benefits were paid erroneously birth defect and/or assessing the level because of beneficiary error, VA will of disability. reduce or discontinue benefits as of the (2) Except in accordance with para- effective date of the erroneous award. graph (a)(3) of this section, VA will not (2) If benefits were paid erroneously pay a monthly monetary allowance un- because of administrative error, VA less or until VA is able to obtain med- will reduce or discontinue benefits as ical evidence adequate to determine of the date of last payment. that an individual has a covered birth (Authority: 38 U.S.C. 501, 1811, 1812, 1813, 1814, defect and adequate to assess the level 1815, 1816, 1831, 1832, 1833, 1834, 5101, 5110, 5111, of disability due to covered birth de- 5112) fects. [67 FR 49588, July 31, 2002, as amended at 76 (g) Redeterminations. VA will reassess FR 4249, Jan. 25, 2011; 79 FR 2100, Jan. 13, a determination under this section 2014; 84 FR 171, Jan. 18, 2019]

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§ 3.816 Awards under the Nehmer the effective date of the statute or reg- Court Orders for disability or death ulation establishing a presumption of caused by a condition presump- service connection for the covered dis- tively associated with herbicide ex- ease, the effective date of the award posure. will be the later of the date such claim (a) Purpose. This section states effec- was received by VA or the date the dis- tive-date rules required by orders of a ability arose, except as otherwise pro- United States district court in the vided in paragraph (c)(3) of this sec- class-action case of Nehmer v. United tion. A claim will be considered a States Department of Veterans Affairs, claim for compensation for a particular No. CV–86–6160 TEH (N.D. Cal.). covered herbicide disease if: (b) Definitions. For purposes of this (i) The claimant’s application and section— other supporting statements and sub- (1) Nehmer class member means: missions may reasonably be viewed, (i) A Vietnam veteran who has a cov- under the standards ordinarily gov- ered herbicide disease; or erning compensation claims, as indi- (ii) A surviving spouse, child, or par- cating an intent to apply for compensa- ent of a deceased Vietnam veteran who tion for the covered herbicide dis- died from a covered herbicide disease. ability; or (2) Covered herbicide disease means a (ii) VA issued a decision on the disease for which the Secretary of Vet- claim, between May 3, 1989 and the ef- erans Affairs has established a pre- fective date of the statute or regula- sumption of service connection pursu- tion establishing a presumption of ant to the Agent Orange Act of 1991, service connection for the covered dis- Public Law 102–4, other than chloracne, ease, in which VA denied compensation as provided in § 3.309(e). for a disease that reasonably may be (c) Effective date of disability com- construed as the same covered herbi- pensation. If a Nehmer class member is cide disease for which compensation entitled to disability compensation for has been awarded. a covered herbicide disease, the effec- (3) If the class member’s claim re- tive date of the award will be as fol- ferred to in paragraph (c)(1) or (c)(2) of lows: this section was received within one (1) If VA denied compensation for the year from the date of the class mem- same covered herbicide disease in a de- ber’s separation from service, the effec- cision issued between September 25, tive date of the award shall be the day 1985 and May 3, 1989, the effective date following the date of the class mem- of the award will be the later of the ber’s separation from active service. date VA received the claim on which (4) If the requirements of paragraph the prior denial was based or the date (c)(1) or (c)(2) of this section are not the disability arose, except as other- met, the effective date of the award wise provided in paragraph (c)(3) of this shall be determined in accordance with section. A prior decision will be con- §§ 3.114 and 3.400. strued as having denied compensation (d) Effective date of dependency and infor the same disease if the prior deci- demnity compensation (DIC). If a sion denied compensation for a disease Nehmer class member is entitled to that reasonably may be construed as DIC for a death due to a covered herbi- the same covered herbicide disease for cide disease, the effective date of the which compensation has been awarded. award will be as follows: Minor differences in the terminology (1) If VA denied DIC for the death in used in the prior decision will not pre- a decision issued between September clude a finding, based on the record at 25, 1985 and May 3, 1989, the effective the time of the prior decision, that the date of the award will be the later of prior decision denied compensation for the date VA received the claim on the same covered herbicide disease. which such prior denial was based or (2) If the class member’s claim for the date the death occurred, except as disability compensation for the cov- otherwise provided in paragraph (d)(3) ered herbicide disease was either pend- of this section. ing before VA on May 3, 1989, or was re- (2) If the class member’s claim for ceived by VA between that date and DIC for the death was either pending

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before VA on May 3, 1989, or was re- prior to January 1, 1997, and the vet- ceived by VA between that date and eran’s service in the Republic of Viet- the effective date of the statute or reg- nam ended before August 5, 1964, the ef- ulation establishing a presumption of fective-date rules of this regulation do service connection for the covered her- not apply. The effective date of bene- bicide disease that caused the death, fits in such cases shall be determined the effective date of the award will be in accordance with 38 U.S.C. 5110. If a the later of the date such claim was re- claim referred to in paragraph (c) or (d) ceived by VA or the date the death oc- of this section was pending before VA curred, except as otherwise provided in on January 1, 1997, or was received by paragraph (d)(3) of this section. In ac- VA after that date, and the veteran’s cordance with § 3.152(b)(1), a claim by a service in the Republic of Vietnam surviving spouse or child for death pen- ended before August 5, 1964, the effec- sion will be considered a claim for DIC. tive date shall be the later of the date In all other cases, a claim will be con- provided by paragraph (c) or (d) of this sidered a claim for DIC if the claim- section or January 1, 1997. ant’s application and other supporting statements and submissions may rea- (Authority: Public Law 104–275, sec. 505) sonably be viewed, under the standards (f) Payment of Benefits to Survivors or ordinarily governing DIC claims, as in- Estates of Deceased Beneficiaries—(1) dicating an intent to apply for DIC. General. If a Nehmer class member enti- (3) If the class member’s claim re- tled to retroactive benefits pursuant to ferred to in paragraph (d)(1) or (d)(2) of paragraphs (c)(1) through (c)(3) or (d)(1) this section was received within one through (d)(3) of this section dies prior year from the date of the veteran’s to receiving payment of any such bene- death, the effective date of the award fits, VA shall pay such unpaid retro- shall be the first day of the month in active benefits to the first individual which the death occurred. or entity listed below that is in exist- (4) If the requirements of paragraph ence at the time of payment: (d)(1) or (d)(2) of this section are not (i) The class member’s spouse, re- met, the effective date of the award gardless of current marital status. shall be determined in accordance with §§ 3.114 and 3.400. NOTE TO PARAGRAPH (f)(1)(i): For purposes (e) Effect of other provisions affecting of this paragraph, a spouse is the person who was legally married to the class member at retroactive entitlement—(1) General. If the time of the class member’s death. the requirements specified in paragraphs (c)(1) or (c)(2) or (d)(1) or (d)(2) (ii) The class member’s child(ren), re- of this section are satisfied, the effec- gardless of age or marital status (if tive date shall be assigned as specified more than one child exists, payment in those paragraphs, without regard to will be made in equal shares, accom- the provisions in 38 U.S.C. 5110(g) or panied by an explanation of the divi- § 3.114 prohibiting payment for periods sion). prior to the effective date of the stat- NOTE TO PARAGRAPH (f)(1)(ii): For purposes ute or regulation establishing a pre- of this paragraph, the term ‘‘child’’ includes sumption of service connection for a natural and adopted children, and also in- covered herbicide disease. However, the cludes any stepchildren who were members provisions of this section will not apply of the class member’s household at the time if payment to a Nehmer class member of the class member’s death. based on a claim described in para- (iii) The class member’s parent(s), re- graph (c) or (d) of this section is other- gardless of dependency (if both parents wise prohibited by statute or regula- are alive, payment will be made in tion, as, for example, where a class equal shares, accompanied by an expla- member did not qualify as a surviving nation of the division). spouse at the time of the prior claim or denial. NOTE TO PARAGRAPH (f)(1)(iii): For purposes of this paragraph, the term ‘‘parent’’ in- (2) Claims Based on Service in the Re- cludes natural and adoptive parents, but in public of Vietnam Prior to August 5, 1964. the event of successive parents, the persons If a claim referred to in paragraph (c) who last stood as parents in relation to the or (d) of this section was denied by VA class member will be considered the parents.

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(iv) The class member’s estate. listed in paragraph (b)(2) of this sec- (2) Inapplicability of certain accrued tion. benefit requirements. The provisions of (Authority: 38 U.S.C. 501) 38 U.S.C. 5121(c) and § 3.1000(c) requiring [68 FR 50970, Aug. 25, 2003, as amended at 73 survivors to file claims for accrued FR 61736, Oct. 17, 2008; 78 FR 54766, Sept. 6, benefits do not apply to payments 2013] under this section. When a Nehmer class member dies prior to receiving FORFEITURE retroactive payments under this section, VA will pay the amount to an § 3.900 General. identified payee in accordance with (a) Forfeiture of benefits based on paragraph (f)(1) of this section without one period of service does not affect en- requiring an application from the titlement to benefits based on a period payee. Prior to releasing such pay- of service beginning after the offense ment, however, VA may ask the payee causing the prior forfeiture. (b)(1) Except as provided in para- to provide further information as speci- graph (b)(2) of this section, any offense fied in paragraph (f)(3) of this section. committed prior to January 1, 1959, (3) Identifying payees. VA shall make may cause a forfeiture and any for- reasonable efforts to identify the ap- feiture in effect prior to January 1, propriate payee(s) under paragraph 1959, will continue to be a bar on and (f)(1) of this section based on informa- after January 1, 1959. tion in the veteran’s claims file. If further information is needed to deter- (Authority: Section 3, Pub. L. 85–857) mine whether any appropriate payee (2) Effective September 2, 1959, for- exists or whether there are any persons feiture of benefits may not be declared having equal or higher precedence than except under the circumstances set a known prospective payee, VA will re- forth in § 3.901(d), § 3.902(d), or § 3.903. quest such information from a survivor Forfeitures declared before September or authorized representative if the 2, 1959, will continue to be a bar on and claims file provides sufficient contact after that date. information. Before releasing payment to an identified payee, VA will ask the (Authority: 38 U.S.C. 6103(d) and 6105) payee to state whether there are any (c) Pension or compensation pay- other survivors of the class member ments are not subject to forfeiture be- who may have equal or greater entitle- cause of violation of hospital rules. ment to payment under this section, (d) When the person primarily enti- unless the circumstances clearly indi- tled has forfeited his or her rights by cate that such a request is unneces- reason of fraud or a treasonable act de- sary. If, following such efforts, VA re- termination as to the rights of any de- leases the full amount of unpaid bene- pendents of record to benefits under fits to a payee, VA may not thereafter § 3.901(c) or § 3.902(c) may be made upon pay any portion of such benefits to any receipt of an application. other individual, unless VA is able to (Authority: 38 U.S.C. 6103(b) and 38 U.S.C. recover the payment previously re- 6104(b)) leased. [26 FR 1607, Feb. 24, 1961, as amended at 27 (4) Bar to accrued benefit claims. Pay- FR 8590, Aug. 28, 1962; 53 FR 17934, May 19, ment of benefits pursuant to paragraph 1988] (f)(1) of this section shall bar a later § 3.901 Fraud. claim by any individual for payment of all or any part of such benefits as ac- (a) Definition. An act committed crued benefits under 38 U.S.C. 5121 and when a person knowingly makes or § 3.1000. causes to be made or conspires, com- bines, aids, or assists in, agrees to, ar- (g) Awards covered by this section. This ranges for, or in any way procures the section applies only to awards of dis- making or presentation of a false or ability compensation or DIC for dis- fraudulent affidavit, declaration, cer- ability or death caused by a disease tificate, statement, voucher, or paper,

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concerning any claim for benefits shall be remitted effective June 30, under any of the laws administered by 1972. Benefits to which a person be- the Department of Veterans Affairs comes eligible by virtue of the remis- (except laws relating to insurance ben- sion, upon application therefor, shall efits). be awarded effective as provided by (b) Effect on claim. For the purposes § 3.114. of paragraph (d) of this section, any (Authority: 38 U.S.C. 6103) person who commits fraud forfeits all rights to benefits under all laws admin- [27 FR 8590, Aug. 28, 1962, as amended at 37 istered by the Department of Veterans FR 19134, Sept. 19, 1972; 53 FR 17934, May 19, Affairs other than laws relating to in- 1988] surance benefits. § 3.902 Treasonable acts. (c) Forfeiture before September 2, 1959. Where forfeiture for fraud was declared (a) Definition. An act of mutiny, trea- before September 2, 1959, in the case of son, sabotage or rendering assistance a veteran entitled to disability com- to an enemy of the United States or of pensation, the compensation payable its allies. except for the forfeiture may be paid to (b) Effect on claim. For the purposes the veteran’s spouse, children and par- of paragraph (d) of this section, any ents provided the decision to apportion person determined by the Department was authorized prior to September 2, of Veterans Affairs to be guilty of a 1959. The total amount payable will be treasonable act forfeits all gratuitous the lesser of these amounts: benefits under laws administered by the Department of Veterans Affairs (Authority: 38 U.S.C. 6103) which he or she may be receiving or would have been entitled to receive in (1) Service-connected death benefit the future. payable. (c) Forfeiture before September 2, 1959. (2) Amount of compensation payable Where forfeiture for treasonable acts but for the forfeiture. was declared before September 2, 1959, No benefits are payable to any person the Secretary may pay any part of ben- who participated in the fraud causing efits so forfeited to the dependents of the forfeiture. the person provided the decision to ap- (d) Forfeiture after September 1, 1959. portion was authorized prior to Sep- After September 1, 1959, forfeiture by tember 2, 1959, except that the amount reason of fraud may be declared only may not be in excess of that which the (1) Where the person was not residing dependent would be entitled to as a or domiciled in a State as defined in death benefit. § 3.1(i) at the time of commission of the fraudulent act; or (Authority: 38 U.S.C. 6104(c)) (2) Where the person ceased to be a (1) Compensation. Whenever a veteran resident of or domiciled in a State as entitled to disability compensation has defined in § 3.1(i) before expiration of forfeited his or her right, any part of the period during which criminal pros- the compensation payable except for ecution could be instituted; or the forfeiture may be paid to the vet- (3) The fraudulent act was committed eran’s spouse, children and parents. in the Philippine Islands. The total amount payable will be the Where the veteran’s rights have been lesser of these amounts: forfeited, no part of his or her benefit (i) Service-connected death benefit may be paid to his or her dependents. payable. (ii) Amount of compensation payable (Authority: 38 U.S.C. 6103) but for the forfeiture. (e) Remission of forfeitures imposed No benefits are payable to any person prior to September 2, 1959. Where it is de- participating in the treasonable act termined that a forfeiture for fraud causing the forfeiture. which was imposed prior to September (2) Pension. Whenever a veteran enti- 2, 1959, would not be imposed under the tled to pension has forfeited his or her law and regulation in effect on and right, any part of the pension payable after September 2, 1959, the forfeiture except for the forfeiture provision may

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be paid to the veteran’s spouse and subversive activities shall from and children. The total amount payable after the date of commission of such of- will be the lesser of these amounts: fense have no right to gratuitous bene- (i) Nonservice-connected death ben- fits (including the right to burial in a efit payable. national cemetery) under laws admin- (ii) Amount of pension being paid the istered by the Department of Veterans veteran at the time of forfeiture. Affairs based on periods of military, No benefits are payable to any person naval, or air service commencing be- who participated in the treasonable act fore the date of the commission of such causing the forfeiture. offense and no other person shall be en- (d) Forfeiture after September 1, 1959. titled to such benefits on account of After September 1, 1959, forfeiture by such person. reason of a treasonable act may be de- (2) The Attorney General will notify clared only the Department of Veterans Affairs in (1) Where the person was not residing each case in which a person is indicted or domiciled in a State as defined in or convicted of an offense listed in § 3.1(i) at the time of commission of the paragraphs (a)(1), (3), and (4) of this act; or section. The Secretary of Defense or (2) Where the person ceased to be a the Secretary of the Treasury, as may resident of or domiciled in a State as be appropriate, will notify the Depart- defined in § 3.1(i) before expiration of ment of Veterans Affairs in each case the period during which criminal pros- in which a person is convicted of an of- ecution could be instituted; or fense listed in paragraph (a)(2) of this (3) The treasonable act was com- section. mitted in the Philippine Islands. (c) Presidential pardon. Where any No part of the benefits forfeited by the person whose right to benefits has been person primarily entitled shall be paid so terminated is granted a pardon of to any dependent. the offense by the President of the United States, the right to such bene- (Authority: 38 U.S.C. 6104) fits shall be restored as of the date of such pardon, if otherwise eligible. (e) Children. A treasonable act committed by a child or children, regard- (Authority: 38 U.S.C. 6105) less of age, who are in the surviving [27 FR 8591, Aug. 28, 1962, as amended at 38 spouse’s custody and included in an FR 4511, Feb. 15, 1973; 38 FR 30106, Nov. 1, award to such person will not affect 1973; 53 FR 17934, May 19, 1988; 71 FR 44919, the award to the surviving spouse. Aug. 8, 2006]

[27 FR 8590, Aug. 28, 1962; 53 FR 17934, May 19, § 3.904 Effect of forfeiture after vet- 1988] eran’s death. § 3.903 Subversive activities. (a) Fraud. Whenever a veteran has (a) Definition. Any offense for which forfeited his or her right by reason of punishment is prescribed: (1) In title 18 fraud, his or her surviving dependents U.S.C., sections 792, 793, 794, 798, 2381 upon proper application may be paid through 2385, 2387 through 2390, and pension, compensation, or dependency chapter 105; and indemnity compensation, if other- (2) In title 18 U.S.C., sections 175, 229, wise eligible. No benefits are payable 831, 1091, 2332a, and 2332b, for claims to any person who participated in the filed on or after December 17, 2003. fraud causing the forfeiture. (3) In the Uniform Code of Military Justice, Articles 94, 104 and 106 (10 (Authority: 38 U.S.C. 6103(c)) U.S.C. 894, 904, and 906); (b) Treasonable acts. Death benefits (4) In the following sections of the may be paid as provided in paragraph Atomic Energy Act of 1954: Sections 222 (a) of this section where forfeiture by through 226 (42 U.S.C. 2272–2276); and reason of a treasonable act was de- (5) In section 4 of the Internal Secu- clared before September 2, 1959, and rity Act of 1950 (50 U.S.C. 783). such benefits were authorized prior to (b) Effect on claim. (1) Any person who that date. Otherwise, no award of gra- is convicted after September 1, 1959, of tuitous benefits (including the right to

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burial in a national cemetery) may be nila, Philippines, the Veterans Service made to any person based on any pe- Center Manager, of the right to present riod of service commencing before the a defense. Such notice shall consist of date of commission of the offense a written statement sent to the per- which resulted in the forfeiture. son’s latest address of record setting forth the following: (Authority: 38 U.S.C. 6104(c)) (1) The specific charges against the (c) Subversive activities. Where the person; veteran was convicted of subversive ac- (2) A detailed statement of the evi- tivities after September 1, 1959, no dence supporting the charges, subject award of gratuitous benefits (including to regulatory limitations on disclosure the right to burial in a national ceme- of information; tery) may be made to any person based (3) Citation and discussion of the ap- on any period of service commencing plicable statute; before the date of commission of the (4) The right to submit a statement offense which resulted in the forfeiture or evidence within 60 days, either to unless the veteran had been granted a rebut the charges or to explain the per- pardon of the offense by the President son’s position; of the United States. If pardoned, the veteran’s surviving dependents upon (5) The right to a hearing within 60 proper application may be paid pen- days, with representation by counsel of sion, compensation or dependency and the person’s own choosing, that fees for indemnity compensation, if otherwise the representation are limited in ac- eligible, and the right to burial in a na- cordance with 38 U.S.C. 5904(c) and that tional cemetery is restored. no expenses incurred by a claimant, counsel or witness will be paid by VA. (Authority: 38 U.S.C. 6105(a)) (c) Subversive activities. Automatic [27 FR 8591, Aug. 28, 1962, as amended at 38 forfeiture of benefits under § 3.903 will FR 30106, Nov. 1, 1973; 39 FR 13970, Apr. 19, be effectuated by an official authorized 1974; 53 FR 16924, May 19, 1988] to declare a forfeiture as provided in § 3.905 Declaration of forfeiture or re- paragraph (a) of this section. mission of forfeiture. (d) Finality of decisions. A decision of (a) Jurisdiction. At the regional office forfeiture is subject to the provisions level, except in VA Regional Office, of § 3.104(a) and §§ 20.1103 and 20.1104 of Manila, Philippines, the Regional this chapter. The officials authorized Counsel is authorized to determine to file administrative appeals and the whether the evidence warrants formal time limit for filing such appeals are consideration as to forfeiture. In the set forth in § 19.51 of this chapter. Manila Regional Office the Veterans (e) Remission of forfeiture. In event of Service Center Manager is authorized remission of forfeiture under § 3.901(e), to make this determination. Submis- any amounts paid as an apportion- sions may also be made by the director ment(s) during periods of the pre- of a service, the Chairman, Board of viously forfeited beneficiary’s reenti- Veterans Appeals, and the General tlement will be offset. Counsel. Jurisdiction to determine whether the claimant or payee has for- CROSS REFERENCES: Effective dates; forfeited the right to gratuitous benefits feiture. See § 3.400(m). Reductions and or to remit a prior forfeiture is vested discontinuances; fraud. See § 3.500(k). Reduc- in the Director, Compensation Service, tions and discontinuances; treasonable acts or subversive activities. See § 3.500(s). Adjust- and the Director, Pension and Fidu- ments and resumptions. See § 3.669. Burial ciary Service, and personnel to whom benefits. See § 3.1609. authority has been delegated under the provisions of § 3.100(c). [28 FR 2234, Mar. 7, 1963, as amended at 29 FR (b) Fraud or treasonable acts. For- 7547, June 12, 1964; 37 FR 19134, Sept. 19, 1972; feiture of benefits under § 3.901 or § 3.902 39 FR 13970, Apr. 19, 1974; 53 FR 17934, May 19, will not be declared until the person 1988; 58 FR 32443, June 10, 1993; 79 FR 2100, Jan. 13, 2014] has been notified by the Regional Counsel or, in VA Regional Office, Ma-

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PROTECTION Schedule for Rating Disabilities, 1945 (looseleaf edition), after which time all § 3.950 Helpless children; Spanish- evaluations will be under the 1945 American and prior wars. schedule (loose-leaf edition) only. Such Marriage is not a bar to the payment increased evaluations must be of an of pension or compensation to a help- other than temporary nature (due to less child under an award approved hospitalization, surgery, etc.). When a prior to April 1, 1944. The presumption, temporary evaluation is involved, the arising from the fact of marriage, that 1925 schedule evaluation will be re- helplessness has ceased may be over- stored after the period of increase has come by positive proof of continuing helplessness. As to awards approved on elapsed unless the permanent residuals or after April 1, 1944, pension or com- would have required reduction under pensation may not be paid to a helpless that schedule, or unless an increased child who has married. evualation would be assignable under a 1945 schedule (looseleaf edition) rating. [26 FR 1608, Feb. 24, 1961] In any instance where the changed con- § 3.951 Preservation of disability rat- dition represents an increased degree of ings. disability under either rating schedule (a) A readjustment to the Schedule but the evaluation provided by the 1945 for Rating Disabilities shall not be schedule (looseleaf edition) is less than grounds for reduction of a disability the evaluation in effect under the 1925 rating in effect on the date of the read- schedule on April 1, 1946, the 1925 justment unless medical evidence es- schedule evaluation and award are pro- tablishes that the disability to be eval- tected. uated has actually improved. [26 FR 12766, Dec. 30, 1961]

(Authority: 38 U.S.C. 1155) § 3.953 Pub. L. 85–56 and Pub. L. 85– (b) A disability which has been con- 857. tinuously rated at or above any evalua- (a) In receipt of or entitled to receive tion of disability for 20 or more years benefits on December 31, 1958. Any person for compensation purposes under laws receiving or entitled to receive benefits administered by the Department of under any public law administered by Veterans Affairs will not be reduced to less than such evaluation except upon the Department of Veterans Affairs on a showing that such rating was based December 31, 1958, may, except where on fraud. Likewise, a rating of perma- there was fraud, clear and unmistak- nent total disability for pension pur- able error of fact or law, or misrepre- poses which has been in force for 20 or sentation of material facts, continue to more years will not be reduced except receive such benefits as long as the upon a showing that the rating was conditions warranting such payment based on fraud. The 20-year period will under those laws continue. The greater be computed from the effective date of benefit under the previous law or the the evaluation to the effective date of corresponding section of title 38 U.S.C., reduction of evaluation. will be paid in the absence of an elec- (Authority: 38 U.S.C. 110) tion to receive the lesser benefit.

[34 FR 11970, July 16, 1969, as amended at 57 (Authority: Section 10, Pub. L. 85–857) FR 10426, Mar. 26, 1992] (b) Emergency officers’ retirement pay. § 3.952 Protected ratings. Any person who was receiving, or enti- Ratings under the Schedule of Dis- tled to receive, emergency officers’ re- ability Ratings, 1925, which were the tirement pay, or other privileges or basis of compensation on April 1, 1946, benefits as a retired emergency officer are subject to modification only when of World War I, on December 31, 1958, a change in physical or mental condi- under the laws in effect on that day, tion would have required a reduction will, except where there was fraud, under the 1925 schedule, or an increased evaluation has been assigned under the

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clear and unmistakable error as to con- computed from the effective date of the clusion of fact or law, or misrepresen- Department of Veterans Affairs finding tation of material facts, continue to re- of service connection to the effective ceive, or be entitled to receive, emer- date of the rating decision severing gency officers’ retirement pay at the service connection, after compliance rate otherwise payable on December 31, with § 3.105(d). The protection afforded 1958, and such other privileges and ben- in this section extends to claims for de- efits, so long as the conditions war- pendency and indemnity compensation ranting such pay, privileges, and bene- or death compensation. fits under those laws continue. (Authority: 38 U.S.C. 1159) (Authority: Section 11, Pub. L. 85–857) [33 FR 15286, Oct. 15, 1968] (c) Service connection established under prior laws. In the absence of fraud, mis- § 3.958 Federal employees’ compensa- representation of material facts or tion cases. clear and unmistakable error, all cases Any award approved prior to Sep- where compensation was payable on tember 13, 1960, authorizing Depart- December 31, 1957, for disability service ment of Veterans Affairs benefits con- connected under prior laws, repealed by currently with an award of benefits Pub. L. 85–56, including those service under the Federal Employees’ Com- connected under the second proviso of pensation Act based on a finding that section 200 of the World War Veterans’ the same disability or death was due to Act, 1924, as amended, are protected by civilian employment is not affected by section 2316(b), Pub. L. 85–56 and sec- the prohibition against concurrent tion 10, Pub. L. 85–857 as to both service awards contained in 5 U.S.C. 8116(b). connection and rate of compensation, so long as the conditions warranting [41 FR 20408, May 18, 1976] such status and rate continue. Any disability so service connected may be § 3.959 Tuberculosis. evaluated under the Schedule for Rat- Any veteran who, on August 19, 1968, ing Disabilities, 1945 (looseleaf edition) was receiving or entitled to receive and benefits awarded on the basis compensation for active or inactive thereof, as well as special monthly (arrested) tuberculosis may receive compensation under 38 U.S.C. 1114, pro- compensation under 38 U.S.C. 1114(q) vided such action results in compensa- and 1156 as in effect before August 20, tion payable at a rate equal to or high- 1968. er than that payable on December 31, 1957. Where a changed physical condi- (Authority: Pub. L. 90–493; 82 Stat. 809) tion warrants reevaluation of service- [33 FR 16275, Nov. 6, 1968] connected disabilities, compensation will be awarded under the provisions of § 3.960 Section 306 and old-law pen- 38 U.S.C. 1114. sion protection. [26 FR 1608, Feb. 24, 1961, as amended at 26 (a) General. Except as provided in FR 8561, Sept. 13, 1961; 26 FR 12766, Dec. 30, paragraphs (b) and (c) of this section, 1961] any person eligible to elect improved §§ 3.955–3.956 [Reserved] pension under § 3.711 or 3.712 who is in receipt of section 306 or old-law pension § 3.957 Service connection. on December 31, 1978, shall in the ab- Service connection for any disability sence of an election to receive im- or death granted or continued under proved pension, continue to receive title 38 U.S.C., which has been in effect such pension at the monthly rate pay- for 10 or more years will not be severed able on December 31, 1978. except upon a showing that the origi- (b) Termination. Pension payable nal grant was based on fraud or it is under paragraph (a) of this section clearly shown from military records shall be terminated for any one of the that the person concerned did not have following reasons: the requisite service or character of (1) A veteran pensioner ceases to be discharge. The 10-year period will be permanently and totally disabled.

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(2) A surviving spouse pensioner dence in the file at date of death, and ceases to meet the definition of sur- due and unpaid will, upon the death of viving spouse in 38 U.S.C. 101(3). such person, be paid as follows: (3) A child pensioner ceases to meet the definition of child in 38 U.S.C. (Authority: 38 U.S.C. 5121(a) 101(4). (1) Upon the death of a veteran to the (4) A section 306 pensioner’s count- living person first listed as follows: able annual income, determined under (i) His or her spouse; §§ 3.250 to 3.270, exceeds the applicable (ii) His or her children (in equal amount stated in § 3.26(a). shares); (5) An old-law pensioner’s countable (iii) His or her dependent parents (in annual income determined under equal shares) or the surviving parent. §§ 3.250 to 3.270 exceeds the applicable (2) Upon the death of a surviving amount stated in § 3.26(c). (6) A section 306 pensioner has a net spouse or remarried surviving spouse, worth of such size that it is reasonable to the veteran’s children. that some part of it be consumed for (3) Upon the death of a child, to the the pensioner’s maintenance. Evalua- surviving children of the veteran enti- tion of net worth shall be made under tled to death pension, compensation, or § 3.263. dependency and indemnity compensa- (c) Reduction. The pension rate pay- tion. able under paragraph (a) of this section (4) Upon the death of a child claiming shall be reduced by the amount of any benefits under chapter 18 of this title, additional pension payable by reason of to the surviving parents. a dependent upon the loss of such de- (5) In all other cases, only so much of pendent. A veteran or surviving spouse the accrued benefit may be paid as may who no longer has any dependents shall be necessary to reimburse the person not continue to receive either section who bore the expense of last sickness 306 pension or old-law pension if count- or burial. (See § 3.1002.) able annual income exceeds the appro- (b) Apportionments. (1) Upon the death priate rate in § 3.26(a), (b), or (c). of a person receiving an apportioned (d) Finality of termination. Termi- share of benefits payable to a veteran, nation of section 306 pension or old-law all or any part of such unpaid amount pension for one of the reasons listed in is payable to the veteran or to any paragraph (b) of this section precludes other dependent or dependents of the a person from thereafter establishing veteran. entitlement under any other pension program except the improved pension (Authority: 38 U.S.C. 5121(a)(1)) program. (2) Where at the date of death of the (Authority: Sec. 306 of Pub. L. 95–588, 92 Stat. veteran an apportioned share is being 2497) paid to or has been withheld on behalf of another person, the apportioned [44 FR 45944, Aug. 6, 1979, as amended at 56 amount remaining unpaid for periods FR 28824, June 25, 1991] prior to the last day of the month be- ACCRUED fore the veteran’s death is payable to the apportionee. § 3.1000 Entitlement under 38 U.S.C. (3) Where the accrued death pension, 5121 to benefits due and unpaid compensation or dependency and in- upon death of a beneficiary. demnity compensation was payable for (a) Basic entitlement. Except as pro- a child as an apportioned share of the vided in §§ 3.1001 and 3.1008, where death surviving spouse’s benefit, payment occurred on or after December 1, 1962, will be made under the provisions of periodic monetary benefits (other than paragraph (a)(5) of this section, on the insurance and servicemembers’ indem- expenses of such deceased child’s last nity) authorized under laws adminis- sickness or burial. tered by the Department of Veterans (c) Claims and evidence. Application Affairs, to which a payee was entitled for accrued benefits must be filed with- at his or her death under existing rat- in 1 year after the date of death. A ings or decisions or those based on evi- claim for death pension, compensation,

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or dependency and indemnity com- child or children of the veteran enti- pensation, by an apportionee, surviving tled to death pension, compensation, or spouse, child or parent is deemed to in- dependency and indemnity compensa- clude claim for any accrued benefits. tion. Upon the death of a child, another (See § 3.152(b)). child who has elected dependents’ edu- (1) If an application for accrued bene- cational assistance under 38 U.S.C. fits is incomplete because the claimant chapter 35 may receive accrued death has not furnished information nec- pension, compensation, or dependency essary to establish that he or she is and indemnity compensation, payable within the category of eligible persons on behalf of the deceased child for peri- under the provisions of paragraphs ods prior to the commencement of ben- (a)(1) through (a)(5) or paragraph (b) of efits under that chapter. this section and that circumstances (3) Dependent parent is as defined in exist which make the claimant the spe- § 3.59: Provided, That the mother or fa- cific person entitled to payment of all ther was dependent within the meaning or part of any benefits which may have of § 3.250 at the date of the veteran’s accrued, VA shall notify the claimant: death. (i) Of the type of information re- (4) Evidence in the file at date of death quired to complete the application; means evidence in VA’s possession on (ii) That VA will take no further ac- or before the date of the beneficiary’s tion on the claim unless VA receives death, even if such evidence was not the required information; and physically located in the VA claims (iii) That if VA does not receive the folder on or before the date of death, in required information within 1 year of support of a claim for VA benefits the date of the original VA notification pending on the date of death. of information required, no benefits (5) Claim for VA benefits pending on the will be awarded on the basis of that ap- date of death means a claim filed with plication. VA that had not been finally adju- (2) Failure to file timely claim, or a dicated by VA on or before the date of waiver of rights, by a preferred depend- death. Such a claim includes a de- ent will not serve to vest title in a per- ceased beneficiary’s claim to reopen a son in a lower class or a claimant for finally disallowed claim based upon reimbursement; neither will such fail- new and material evidence or a de- ure or waiver by a person or persons in ceased beneficiary’s claim of clear and a joint class serve to increase the unmistakable error in a prior rating or amount payable to another or others in decision. Any new and material evi- the class. dence must have been in VA’s possession on or before the date of the bene- (Authority: 38 U.S.C. 5121(c); 5112(b)) ficiary’s death. (d) Definitions. (1) Spouse means the (e) Subsistence allowance. Subsistence surviving spouse of the veteran, whose allowance under the provisions of 38 marriage meets the requirements of U.S.C. ch. 31 remaining due and unpaid § 3.1(j) or § 3.52. Where the marriage at the date of the veteran’s death, is meets the requirements of § 3.1(j) date payable under the provisions of this of marriage and continuous cohabita- section. tion are not factors. (f) Dependents’ educational assistance. (2) Child is as defined in § 3.57 and in- Educational assistance allowance or cludes an unmarried child who became special restorative training allowance permanently incapable of self-support under 38 U.S.C. ch. 35, remaining due prior to attaining 18 years of age as and unpaid at the date of death of an well as an unmarried child over the age eligible surviving spouse or eligible of 18 but not over 23 years of age, who child is payable to a child or children was pursuing a course of instruction of the veteran (see paragraphs (a)(2), within the meaning of § 3.57 at the time (a)(3) and (d)(2) of this section), or on of the payee’s death. However, upon the expenses of last sickness and burial the death of a child in receipt of death (see paragraph (a)(5) of this section.) pension, compensation, or dependency Benefits due and unpaid at the date of and indemnity compensation, any ac- death of an eligible spouse are payable crued will be payable to the surviving only on the expenses of last sickness

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and burial (see paragraph (a)(5) of this (4) In all other cases, only so much of section). the lump sum may be paid as may be (g) Veterans educational assistance. necessary to reimburse a person who Educational assistance allowance bore the expenses of last sickness or under 38 U.S.C chapters 30, 32, or 34, burial. (See § 3.1002.) and 10 U.S.C. chapter 1606 remaining (b) Claim. Applications must be filed due and unpaid at the date of the vet- with the Department of Veterans Af- eran’s death is payable under the provi- fairs within 5 years after the death of sions of this section. the veteran. If, however, any person otherwise entitled is under legal dis- (Authority: 38 U.S.C. 5121) ability at the time of the veteran’s (h) Clothing allowance. Clothing al- death, the 5-year period will run from lowance under 38 U.S.C. 1162 remaining the date of termination or removal of due and unpaid at the date of the vet- the legal disability. eran’s death is payable under the provi- (1) There is no time limit on the ret- sions of this section. roactive period of an award or for fur- (i) Active service pay. Benefits award- nishing evidence. ed under this section do not include (2) Failure to file timely claim, or a compensation or pension benefits for waiver of rights, by a preferred depend- any period for which the veteran re- ent will not serve to vest title in a per- ceived active service pay. son in a lower class or a claimant for reimbursement; neither will such fail- (Authority: 38 U.S.C. 5304(c)) ure or waiver by a person or persons in [26 FR 1608, Feb. 24, 1961, as amended at 27 a joint class serve to increase the FR 11892, Dec. 1, 1962; 30 FR 11389, Sept. 8, amount payable to another or others in 1965; 31 FR 4790, Mar. 22, 1966; 34 FR 840, Jan. the class. 18, 1969; 39 FR 15126, May 1, 1974; 56 FR 18733, Apr. 24, 1991; 56 FR 24239, May 29, 1991; 61 FR (c) Lump sum withheld after discharge 67950, Dec. 26, 1996; 62 FR 5529, Feb. 6, 1997; 62 from institution. The provisions of para- FR 35423, July 1, 1997; 67 FR 65708, Oct. 28, graphs (a) and (b) of this section will 2002; 71 FR 78369, Dec. 29, 2006; 80 FR 18117, apply in the event of the death of any Apr. 3, 2015] veteran prior to receiving a lump sum which was withheld because treatment § 3.1001 Hospitalized competent vet- or care was terminated against medical erans. advice or as the result of disciplinary The provisions of this section apply action. only to the payment of amounts actually withheld on a running award under (Authority: 38 U.S.C. 5503) § 3.551(b) which are payable in a lump [26 FR 1609, Feb. 24, 1961, as amended at 27 sum after the veteran’s death. FR 5539, June 12, 1962; 27 FR 8177, Aug. 16, (a) Basic entitlement. Where an award 1962; 27 FR 11893, Dec. 1, 1962; 39 FR 15126, of disability pension for a competent May 1, 1974] veteran without dependents was reduced because of hospital treatment or § 3.1002 Political subdivisions of institutional or domiciliary care by the United States. Department of Veterans Affairs and No part of any accrued benefits will the veteran dies while receiving such be used to reimburse any political sub- treatment or care or before payment of division of the United States for ex- amounts withheld, the lump sum is penses incurred in the last sickness or payable to the living person first listed burial of any beneficiary. (See § 3.1(o)). as follows: (Authority: 38 U.S.C. 5121(b) and 5502(d)) (1) The veteran’s spouse, as defined in § 3.1000(d)(1); [39 FR 15126, May 1, 1974] (2) The veteran’s children (in equal shares), as defined in § 3.57 but without § 3.1003 Returned and canceled regard to their age or marital status; checks. (3) The veteran’s dependent parents Where the payee of a check for bene- (in equal shares), or the surviving de- fits has died prior to negotiating the pendent parent, as defined in check, the check shall be returned to § 3.1000(d)(3); the issuing office and canceled.

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(a) The amount represented by the partment of Veterans Affairs, or an returned check, or any amount recov- award of disability pension, compensa- ered following improper negotiation of tion or emergency officers’ retirement the check, shall be payable to the liv- pay was discontinued under former ing person or persons in the order of § 3.557(b) (as applicable prior to Decem- precedence listed in § 3.1000(a)(1) ber 27, 2001) because the veteran was through (5), except that the total hospitalized by the United States or a amount payable shall not include any political subdivision and had an estate payment for the month in which the which equaled or exceeded the statu- payee died (see § 3.500(g)), and payments tory maximum, and the veteran dies to persons described in § 3.1000(a)(5) before payment of amounts withheld or shall be limited to the amount nec- not paid by reason of such care, no part essary to reimburse such persons for of such amount will be paid to any per- the expenses of last sickness and/or son. The provisions of this section are burial. applicable to amounts withheld for pe- (1) There is no limit on the retro- riods prior to as well as subsequent to active period for which payment of the the rating of incompetency. The term amount represented by the check may dies before payment includes cases in be made, and no time limit for filing a which a check was issued and the vet- claim to obtain the proceeds of the eran died before negotiating the check. check or for furnishing evidence to perfect a claim. (Authority: 38 U.S.C. 5503) (2) Nothing in this section will pre- [39 FR 30349, Aug. 22, 1974, as amended at 66 clude payment to an otherwise entitled FR 48561, Sept. 21, 2001; 68 FR 34543, June 10, claimant having a lower order of prece- 2003] dence under § 3.1000(a)(1) through (5), if it is shown that the person or persons § 3.1008 Accrued benefits payable to having a higher order of precedence are foreign beneficiaries. deceased at the time the claim is adju- In case of death of the payee of any dicated. check in payment of periodic monetary (b) Subject to the limitations in benefits (other than insurance and § 3.500(g) of this part, any amount not servicemembers’ indemnity) accruing paid in the manner provided in para- under laws administered by the Depart- graph (a) of this section shall be paid ment of Veterans Affairs, while the to the estate of the deceased payee, amount thereof remains in the special provided that the estate, including the deposit account established by Pub. L. amount paid under this paragraph, will 828, 76th Congress, such amount will be not will not revert to the state because payable under section 3 of that act. (31 there is no one eligible to inherit it. U.S.C. 125) However, the accrued (c) The provisions of this section do amount will be payable only if the per- not apply to checks for lump sums rep- son on whose behalf checks were issued resenting amounts withheld under and the person claiming the accrued § 3.551(b) or § 3.557. These amounts are amount have not been guilty of mu- subject to the provisions of §§ 3.1001 and tiny, treason, sabotage, or rendering 3.1007, as applicable. assistance to an enemy of the United (Authority: 38 U.S.C. 501(a), 5122) States or of its allies. [59 FR 25329, May 16, 1994, as amended at 64 [26 FR 1609, Feb. 24, 1961] FR 54207, Oct. 6, 1999; 80 FR 18117, Apr. 3, 2015] § 3.1009 Personal funds of patients. §§ 3.1004–3.1006 [Reserved] The provisions of this section are applicable to gratuitous benefits depos- § 3.1007 Hospitalized incompetent vet- ited by the Department of Veterans Af- erans. fairs either before, on, or after Decem- Where an award of disability pension ber 1, 1959, in a personal funds of pa- for an incompetent veteran without de- tients account for an incompetent vet- pendents was reduced under § 3.551(b) eran who was incompetent at the date because of hospitalization, institu- of death. Where the veteran died after tional or domiciliary care by the De- November 30, 1959:

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(a) Eligible persons. Gratuitous bene- the Board of Veterans’ Appeals when fits shall be paid to the living person the claimant died. Upon VA’s grant of first listed as follows: a request to substitute, the substitute (1) His or her spouse, as defined in may continue the claim or appeal on § 3.1000(d)(1); behalf of the deceased claimant for (2) His or her children (in equal purposes of processing the claim or ap- shares), as defined in § 3.57 but without peal to completion. Any benefits ulti- regard to their age or marital status; mately awarded are payable to the sub- (3) His or her dependent parents (in stitute and other members of a joint equal shares) as defined in § 3.59 or the class, if any, in equal shares. surviving parent, provided that the parent was dependent within the mean- (b) Time and place for filing a request. ing of § 3.250 at the date of the vet- A person may not substitute for a de- eran’s death. ceased claimant under this section un- (4) In all other cases, only so much less the person files a request to sub- may be paid as may be necessary to re- stitute with the agency of original ju- imburse a person who bore the expense risdiction no later than one year after of last sickness or burial. (See § 3.1002.) the claimant’s death. (c) Request format. (1) A request to (Authority: 38 U.S.C. 5502(d)) substitute must be submitted in writ- (b) Claim. Application must be filed ing. At a minimum, a request to sub- with the Department of Veterans Af- stitute must indicate intent to sub- fairs within 5 years after the death of stitute; include the deceased claim- the veteran. If, however, any person ant’s claim number, Social Security otherwise entitled is under legal dis- number, or appeal number; and include ability at the time of the veteran’s the names of the deceased claimant death, the 5-year period will run from and the person requesting to sub- the date of termination or removal of stitute. the legal disability. (2) In lieu of a specific request to sub- (1) There is no time limit for the substitute, a claim for accrued benefits, mission of evidence. survivors pension, or dependency and (2) Failure to file timely claim, or a waiver of rights, by a preferred depend- indemnity compensation by an eligible ent will not serve to vest title in a per- person listed in § 3.1000(a)(1) through (5) son in a lower class or a claimant for is deemed to include a request to sub- reimbursement; neither will such fail- stitute if a claim for periodic monetary ure or waiver by a person or persons in benefits (other than insurance and a joint class serve to increase the servicemembers’ indemnity) under amount payable to another or others in laws administered by the Secretary, or the class. an appeal of a decision with respect to such a claim, was pending before the [27 FR 5539, June 12, 1962, as amended at 28 FR 10487, Sept. 28, 1963; 39 FR 30349, Aug. 22, agency of original jurisdiction or the 1974] Board of Veterans’ Appeals when the claimant died. A claimant for accrued § 3.1010 Substitution under 38 U.S.C. benefits, survivors pension, or depend- 5121A following death of a claimant. ency and indemnity compensation may (a) Eligibility. If a claimant dies on or waive the right to substitute in writing after October 10, 2008, a person eligible over the claimant’s signature. for accrued benefits under § 3.1000(a) (d) Evidence of eligibility. A person fil- listed in 38 CFR 3.1000(a)(1) through (5) ing a request to substitute must pro- may, in priority order, request to sub- vide evidence of eligibility to substitute for the deceased claimant in a stitute. Evidence of eligibility to sub- claim for periodic monetary benefits stitute means evidence demonstrating (other than insurance and that the person is among those listed servicemembers’ indemnity) under in the categories of eligible persons in laws administered by the Secretary, or § 3.1000(a)(1) through (5) and first in pri- an appeal of a decision with respect to such a claim, that was pending before ority order. If a person’s request to the agency of original jurisdiction or substitute does not include evidence of

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eligibility when it is originally sub- to the deceased claimant was inad- mitted and the person may be an eligi- equate. ble person, the Secretary will notify (2) Expansion of the claim not per- the person— mitted. A substitute may not add an (1) Of the evidence of eligibility re- issue to or expand the claim. However, quired to complete the request to sub- a substitute may raise new theories of stitute; entitlement in support of the claim. (2) That VA will take no further ac- (3) Submission of evidence and other tion on the request to substitute unless rights. A substitute has the same rights VA receives the evidence of eligibility; regarding hearings, representation, ap- and peals, and the submission of evidence (3) That VA must receive the evidence of eligibility no later than 60 as would have applied to the claimant days after the date of notification or had the claimant not died. However, one year after the claimant’s death, rights that may have applied to the whichever is later, or VA will deny the claimant prior to death but which can- request to substitute. not practically apply to a substitute, (e) Decisions on substitution requests. such as the right to a medical examina- Subject to the provisions of § 20.1302 of tion, are not available to the sub- this chapter, the agency of original ju- stitute. The substitute must complete risdiction will decide in the first in- any action required by law or regula- stance all requests to substitute, in- tion within the time period remaining cluding any request to substitute in an for the claimant to take such action on appeal pending before the Board of Vet- the date of his or her death. The time erans’ Appeals. remaining to take such action will (1) Notification. The agency of origi- start to run on the date of the mailing nal jurisdiction will provide written of the decision granting the substi- notification of the granting or denial of tution request. a request to substitute to the person (4) Board of Veterans’ Appeals proce- who filed the request, together with dures. The rules and procedures gov- notice in accordance with § 3.103(b)(1). erning appeals involving substitutes (2) Appeals. The denial of a request to before the Board of Veterans’ Appeals substitute may be appealed to the are found in parts 19 and 20 of this Board of Veterans’ Appeals pursuant to chapter. 38 U.S.C. 7104(a) and 7105. (3) Joint class representative. (i) A joint (g) Limitations on substitution. The fol- class means a group of two or more per- lowing limitations apply with respect sons eligible to substitute under the to substitution: same priority group under § 3.1000(a)(1) (1) A claim or appeal must be pending. through (a)(5), e.g., two or more sur- (i) A claim is considered to be pending viving children. if the claimant had filed the claim with (ii) In the case of a joint class of po- an agency of original jurisdiction but tential substitutes, only one person of dies before the agency of original juris- the joint class may be a substitute at diction makes a decision on the claim. any one time. The first eligible person A claim is also considered to be pend- in the joint class to file a request to ing if, at the time of the claimant’s substitute will be the substitute rep- death, the agency of original jurisdic- resenting the joint class. tion has made a decision on the claim, (f) Adjudications involving a substitute. but the claimant has not filed a notice The following provisions apply with re- of disagreement, and the period al- spect to a claim or appeal in which a lowed by law for filing a notice of dis- survivor has been substituted for the agreement has not expired. deceased claimant: (ii) An appeal is considered to be (1) Notice under § 3.159. VA will send pending if a claimant filed a notice of notice under § 3.159(b), ‘‘Department of Veterans Affairs assistance in devel- disagreement in response to a notifica- oping claims,’’ to the substitute only if tion from an agency of original juris- the required notice was not sent to the diction of its decision on a claim, but deceased claimant or if the notice sent

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dies before the Board of Veterans’ Ap- stitute’s death (not the date of the peals issues a final decision on the ap- claimant’s death). peal. If the Board issued a final deci- (Authority: 38 U.S.C. 5121, 5121A) sion on an appeal prior to the claimant’s death, the appeal is not pending (The Office of Management and Budget has before VA for purposes of this section, approved the information collection require- even if the 120-day period for appealing ments in this section under control number the Board’s decision to the Court of 2900–0740) Appeals for Veterans Claims has not [79 FR 52982, Sept. 5, 2014] yet expired. (2) Benefits awarded. Any benefits ul- Subpart B—Burial Benefits timately awarded are limited to any

past-due benefits for the time period SOURCE: 79 FR 32658, June 6, 2014, unless between the effective date of the award otherwise noted. and what would have been the effective AUTHORITY: 105 Stat. 386, 38 U.S.C. 501(a), date of discontinuance of the award as 2302–2308, unless otherwise noted. a result of the claimant’s death. (3) Benefits for last sickness and burial BURIAL BENEFITS: GENERAL only. When substitution cannot be established under any of the categories § 3.1700 Types of VA burial benefits. listed in § 3.1000(a)(1) through (a)(4), (a) Burial benefits. VA provides the only so much of any benefits ulti- following types of burial benefits, mately awarded may be paid as may be which are discussed in §§ 3.1700 through necessary to reimburse the person who 3.1712: bore the expense of last sickness and (1) Burial allowance based on service- burial. No part of any benefits ulti- connected death; mately awarded shall be used to reim- (2) Burial allowance based on non- burse any political subdivision of the service-connected death; United States for expenses incurred in (3) Burial allowance for a veteran the last sickness or burial of any who died while hospitalized by VA; claimant. (4) Burial plot or interment allow- (4) Substitution by subordinate members ance; and prohibited. Failure to timely file a re- (5) Reimbursement for transportation quest to substitute, or a waiver of the of remains. right to request substitution, by a per- (b) Definition. For purposes of this son of a preferred category of eligible subpart, burial means all the legal person will not serve to vest the right methods of disposing of the remains of a deceased person, including, but not to request substitution in a person in a limited to, cremation, burial at sea, lower category or a person who bore and medical school donation. the expense of last sickness and burial; (c) Cross references. (1) Other benefits neither will such failure or waiver by a and services related to the memori- person or persons in a joint class serve alization or interment of a deceased to increase the amount payable to veteran and certain survivors include other persons in the class. the following: (5) Death of a substitute. If a sub- (i) Burial in a national cemetery (see stitute dies while a claim or appeal is §§ 38.600 and 38.617 through 38.629 of this pending before an agency of original chapter); jurisdiction, or an appeal of a decision (ii) Presidential memorial certifi- on a claim is pending before the Board, cates (see 38 U.S.C. 112); another member of the same joint class (iii) Burial flags (see § 1.10 of this or a member of the next preferred subchapter); and ordinate category listed in § 3.1000(a)(1) (iv) Headstones or markers (see through (5) may substitute for the de- §§ 38.630 through 38.633 of this chapter). ceased substitute but only if the person (2) The provisions of §§ 3.1702 through requesting the successive substitution 3.1711 do not apply to any of the pro- files a request to substitute no later grams listed in paragraph (c)(1) of this than one year after the date of the subsection.

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§ 3.1701 Deceased veterans for whom (ii) The survivor of a legal union be- VA may provide burial benefits. tween the deceased veteran and the For purposes of providing burial ben- survivor that is not covered by para- efits under subpart B of this part, the graph (b)(1)(i) of this section. For pur- term ‘‘veteran’’ means the same as pro- poses of this paragraph, legal union vided in 38 U.S.C. 101(2). A veteran means a formal relationship between must be deceased, and burial benefits the decedent and the survivor that for that veteran must be authorized by (A) Existed on the date of the vet- a specific provision of law. For pur- eran’s death, poses of the non-service-connected bur- (B) Was recognized under the law of ial allowance under 38 U.S.C. 2302, the the State in which the couple formal- term ‘‘veteran’’ includes a person who ized the relationship, and died during a period deemed to be ac- (C) Was evidenced by the State’s tive military, naval, or air service issuance of documentation memori- under §§ 3.6(b)(7), 3.7(m) and 3.7(o). alizing the relationship; (iii) His or her children, regardless of (Authority: 38 U.S.C. 101(2), 2302, 2303, 2307, age; 2308) (iv) His or her parents or the surviving parent; or § 3.1702 Persons who may receive bur- (v) The executor or administrator of ial benefits; priority of payments. the estate of the deceased veteran. If (a) Automatic payments to surviving no executor or administrator has been spouses of eligible deceased veterans. (1) appointed, VA may pay burial benefits On or after July 7, 2014, VA may auto- based on a claim filed by a person act- matically pay a burial benefit to an el- ing for such estate who will distribute igible veteran’s surviving spouse, the burial benefits to the person or per- whether or not previously established sons entitled to such distribution as a dependent spouse on the deceased under the laws of the veteran’s last veteran’s compensation or pension State of residence. award, when VA knows of or is in- (2) In the case of a veteran whose re- formed of the existence of the sur- mains are unclaimed, VA will pay the viving spouse, can establish the sur- person or entity that provided burial viving spouse’s relationship under services and transportation subject to § 3.204 (when applicable), and is able to the limitations prescribed in §§ 3.1708 determine burial benefits eligibility and 3.1709. based on evidence of record at the time (3) VA will pay burial benefits to a VA updates its computer system to re- single representative of the categories flect the veteran’s date of death. in paragraph (b)(1) of this section. VA (2) VA may grant additional burial will not divide applicable burial bene- benefits, including the plot or inter- fits among claimants; it is the respon- ment allowance, reimbursement for sibility of the recipient to distribute transportation, and the service-con- benefits as may be required. nected burial allowance under § 3.1704, (c) Priority of payments—claims re- to the surviving spouse or any other el- ceived before July 7, 2014. igible person in accordance with para- (1) Claims for burial allowance may graph (b) of this section and based on a be executed by: claim described in § 3.1703. (i) The funeral director, if entire bill (b) Priority of payments—claims re- or any balance is unpaid (if unpaid bill ceived on or after July 7, 2014. (1) Except or the unpaid balance is less than the for claims a State, or an agency or po- applicable statutory burial allowance, litical subdivision of a State, files only the unpaid amount may be under § 3.1707, Plot or interment allow- claimed by the funeral director); or ance for burial in a State veterans (ii) The individual whose personal cemetery or other cemetery, or § 3.1708, funds were used to pay burial, funeral, Burial of a veteran whose remains are and transportation expenses; or unclaimed, VA will pay, upon the death (iii) The executor or administrator of of a veteran, the first living person to the estate of the veteran or the estate file of those listed below: of the person who paid the expenses of (i) His or her surviving spouse; the veteran’s burial or provided such

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services. If no executor or adminis- nected burial allowance no later than 2 trator has been appointed then by some years after the burial of the veteran. person acting for such estate who will There are no other time limitations to make distribution of the burial allow- file claims for burial benefits under ance to the person or persons entitled subpart B of this part. under the laws governing the distribu- (2) Correction of character of discharge. tion of interstate estates in the State If the non-service-connected burial al- of the decedent’s personal domicile. lowance was not payable at the time of (2) Claims for the plot or interment the veteran’s death or burial because of allowance (except for claims filed by a the character of the veteran’s dis- State or an agency or political subdivi- charge from service, VA may pay the sion thereof), under § 3.1707 may be exe- allowance if a competent authority cuted by: corrects the deceased veteran’s dis- (i) The funeral director, if he or she charge to reflect a discharge under con- provided the plot or interment serv- ditions other than dishonorable. ices, or advanced funds to pay for them, and if the entire bill for such or Claims for the non-service-connected any balance thereof is unpaid (if the burial allowance must be filed no later unpaid bill or the unpaid balance is less than 2 years after the date that the dis- than the statutory plot or interment charge was corrected. allowance, only the unpaid amount (b) Supporting evidence—(1) General may be claimed by the funeral direc- rule. In order to pay burial benefits, VA tor); or must receive all of the following: (ii) The person(s) whose personal (i) A claim, except as provided in funds were used to defray the cost of § 3.1702(a); the plot or interment expenses; or (ii) Proof of the veteran’s death in ac- (iii) The person or entity from whom cordance with § 3.211, Death; and the plot was purchased or who provided (iii) For persons listed under interment services if the bill for such is § 3.1702(b), except as provided in unpaid in whole or in part. An unpaid § 3.1702(a), a statement certifying that bill for a plot will take precedence in the claimant incurred burial, plot or payment of the plot or interment al- interment, or transportation costs of lowance over an unpaid bill for other the deceased veteran. interment expenses or a claim for re- (2) Reimbursement of transportation ex- imbursement for such expenses. Any penses. In order to pay transportation remaining balance of the plot or inter- costs, VA must receive a receipt, pref- ment allowance may then be applied to erably on letterhead, showing who paid interment expenses; or the costs, the name of the deceased (iv) The executor or administrator of the estate of the veteran or the estate veteran, the specific transportation ex- of the person who bore the expense of penses incurred, and the dates of the the plot or interment expenses. If no services rendered. executor or administrator has been ap- (3) Eligibility based on evidence of pointed, claim for the plot or inter- record. VA may establish eligibility for ment allowance may be filed as pro- benefits in this subpart based upon evi- vided in paragraph (c)(1)(iii) of this sec- dence of service and disability that VA tion for the burial allowance. relied upon to grant disability compensation or pension during the vet- (Authority: 38 U.S.C. 2302, 2303, 2307) eran’s lifetime, unless VA has some Cross Reference: § 3.1(i) for the definition of other evidence on the date that it re- ‘‘State’’. ceives notice of the veteran’s death [79 FR 32658, June 6, 2014, as amended at 83 that creates doubt as to the correct- FR 39888, Aug. 13, 2018] ness of that evidence.

§ 3.1703 Claims for burial benefits. (The information collection requirements in (a) When claims must be filed—(1) Gen- this section are approved by the Office of eral rule. Except as provided in para- Management and Budget under control num- graph (a)(2) of this section, VA must ber 2900–0003.) receive a claim for the non-service-con- (Authority: 38 U.S.C. 2304, 5107(a))

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BURIAL BENEFITS: ALLOWANCES & amount. Payment of the non-service- EXPENSES PAID BY VA connected burial allowance is subject to other applicable regulations in sub- § 3.1704 Burial allowance based on part B of this part. service-connected death. (b) Eligibility. A burial allowance is (a) General rule. VA will pay the max- payable under this section for a vet- imum burial allowance specified in 38 eran who, on the date of death: U.S.C. 2307 for the burial and funeral (1) Was receiving VA pension or dis- expenses of a veteran described in para- ability compensation; graph (b) of this section, unless VA has (2) Would have been receiving dis- evidence on the date it receives notice ability compensation but for the re- of the veteran’s death that the ex- ceipt of military retired pay; or penses incurred were less than that (3) Had pending any of the following amount. Payment of the service-con- claims: nected burial allowance is in lieu of (i) An original claim for pension or other allowances authorized by subpart disability compensation, and the evi- B of this part, except those allowances dence in the claims file on the date of listed in paragraph (c) of this section. death and any evidence received under (b) Eligibility. A burial allowance is paragraph (d) of this section is suffi- payable under this section for a vet- cient to grant pension or disability eran who died as a result of a service- compensation effective before the date connected disability or disabilities. VA of death; or will presume, unless it has evidence to (ii) A claim to reopen a previously the contrary on the date it receives no- denied pension or disability compensa- tice of the veteran’s death, that a vet- tion claim, based on new and material eran died as a result of a service-con- evidence, and the evidence in the nected disability or disabilities if, at claims file on the date of the veteran’s the date of death, the veteran was death and any evidence received under rated totally disabled for a service-con- paragraph (d) of this section is suffi- nected disability or disabilities, ex- cient to reopen the claim and grant cluding a total disability rating based pension or disability compensation ef- on individual unemployability. fective before the date of death; or (c) Additional allowances available (iii) A claim for which a person would based on service-connected death. In ad- be eligible to substitute for the de- dition to the service-connected burial ceased veteran under 38 U.S.C. 5121A, allowance authorized by this section: Substitution in case of death of claim- (1) VA may reimburse for transpor- ant, and that claim, once processed to tation expenses related to burial in a completion by the substitute, results national cemetery under § 3.1709, Trans- in the grant of pension or disability portation expenses for burial in a na- compensation effective before the date tional cemetery; and of death. (2) VA may pay the plot or interment (c) Evidence in the claims file on the allowance for burial in a State vet- date of the veteran’s death means evi- erans cemetery under § 3.1707(a), Plot dence in VA’s possession on or before or interment allowance. the date of the deceased veteran’s (Authority: 38 U.S.C. 2303, 2307, 2308) death, even if such evidence was not Cross Reference: § 3.1(i), for the definition of part of the VA claims file on or before ‘‘State’’. the date of death. (d) Requesting additional evidence. If § 3.1705 Burial allowance based on the veteran had either an original non-service-connected death. claim or a claim to reopen pending on (a) General rule. VA will pay the max- the date of death and there is sufficient imum burial allowance specified in 38 evidence in VA’s possession to support U.S.C. 2302 for the burial and funeral an award of compensation or pension expenses of a veteran described in para- prior to the date of death, but VA de- graph (b) of this section, unless VA has termines that additional evidence is evidence on the date it receives notice needed to confirm that the deceased of the veteran’s death that the ex- would have been entitled prior to penses incurred were less than that death, VA will request such evidence. If

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VA does not receive such evidence (5) Was traveling under proper prior within 1 year after the date of the re- authorization, and at VA expense, to or quest, it will deny the claim. from a specified place for purpose of ex- (e) Additional allowances available amination, treatment, or care; or based on non-service-connected death. In (6) Was hospitalized by VA pursuant addition to the non-service-connected to any of paragraphs (b)(1) through (4) burial allowance authorized by this of this section but was not at the facil- section: ity at the time of death and was: (1) VA may reimburse for transpor- (i) On authorized absence that did tation expenses related to burial in a not exceed 96 hours at the time of national cemetery under § 3.1709, Trans- death; portation expenses for burial in a na- (ii) On unauthorized absence for a pe- tional cemetery, but only if eligibility riod not in excess of 24 hours at the under paragraphs (b) of this section is time of death; or based on a pending claim for, or award (iii) Absent from the facility for a pe- of, disability compensation, or eligi- riod not in excess of 24 hours of com- bility for disability compensation but bined authorized and unauthorized ab- for receipt of military retired pay, sence at the time of death. rather than a claim for, or award of, (c) Hospitalization in the Philippines. pension; and Hospitalization in the Philippines (2) VA may pay the plot or interment under 38 U.S.C. 1731, 1732, and 1733 does allowance for burial in a State vet- not meet the requirements of this sec- erans cemetery under § 3.1707(a), Plot tion. or interment allowance. (d) Additional allowances available (Authority: 38 U.S.C. 2302, 2303, 2304, 2308) based on death while hospitalized by VA. Cross Reference: § 3.1(i), for the definition of In addition to the burial allowance au- ‘‘State’’. thorized by this section: (1) VA will reimburse for the expense § 3.1706 Burial allowance for a veteran of transporting the remains of a person who died while hospitalized by VA. described in paragraph (b) of this sec- (a) General rule. VA will pay up to the tion to the place of burial subject to maximum burial allowance specified in the limitations of § 3.1709 and where the 38 U.S.C. 2303(a) for the burial and fu- death occurs within a State and: neral expenses of a veteran described in (i) The place of burial is in the same paragraph (b) of this section. State or any other State; or (b) Eligibility. A burial allowance is (ii) The place of burial is in Canada payable under this section for a vet- or Mexico. However, reimbursement for eran whose death was not service-con- transportation of the remains for such nected and who died while hospitalized burial is authorized only from the by VA. For purposes of this allowance, place of death within a State to the a veteran was hospitalized by VA if the port of embarkation within a State, or veteran: to the border limits of the United (1) Was properly admitted to a VA fa- States. cility (as described in 38 U.S.C. 1701(3)) (2) VA may pay the plot or interment for hospital, nursing home, or domi- allowance for burial in a veterans cem- ciliary care under the authority of 38 etery under § 3.1707, Plot or interment U.S.C. 1710 or 1711(a); allowance. (2) Was transferred or admitted to a non-VA facility (as described in 38 (Authority: 38 U.S.C. 2303(a), 2308) U.S.C. 1701(4)) for hospital care under Cross Reference: § 3.1(z) for the definition of the authority of 38 U.S.C. 1703; ‘‘nursing home’’, § 3.1(i) for the definition of (3) Was transferred or admitted to a ‘‘State’’. nursing home for nursing home care at the expense of the U.S. under the au- § 3.1707 Plot or interment allowances thority of 38 U.S.C. 1720; for burial in a State veterans ceme- (4) Was transferred or admitted to a tery or other cemetery. State nursing home for nursing home (a) General eligibility. For a veteran care for which payment is authorized who was eligible for burial in a na- under the authority of 38 U.S.C. 1741; tional cemetery under 38 U.S.C. 2402,

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but was not buried in a national ceme- (2) The veteran is eligible for a burial tery or other cemetery under the juris- allowance under § 3.1706, Burial allow- diction of the U.S., VA will pay the al- ance for a veteran who died while hos- lowances described below, provided all pitalized by VA; criteria are met. (3) The veteran was discharged from (b) Plot or interment allowance for bur- active service for a disability incurred ial in a State veterans cemetery. VA will or aggravated in line of duty (VA will pay the plot or interment allowance in accept the official service record of the amount specified in 38 U.S.C. such discharge as proof of eligibility 2303(b)(1) (without regard to whether for the plot or interment allowance and any other burial benefits were provided VA will disregard any previous VA de- for that veteran) to a State, or an termination made in connection with a agency or political subdivision of a claim for monetary benefits that the State, that provided a burial plot or in- disability was not incurred or aggra- terment for the veteran without charge vated in line of duty); or if the State, or agency or political sub- (4) The veteran, at the time of dis- division of the State: charge from active service, had a dis- (1) Is claiming the plot or interment ability, shown by official service allowance for burial of the veteran in a records, which in medical judgment cemetery, or section of a cemetery, would have justified a discharge for owned by the State or agency or sub- disability. division of the State; (2) Did not charge for the expense of (d) Definitions. For purposes of sub- the plot or interment; and part B of this part, plot or burial plot (3) Uses the cemetery or section of a means the final disposal site of the re- cemetery solely for the interment of: mains, whether it is a grave, mau- (i) Persons eligible for burial in a na- soleum vault, columbarium niche, or tional cemetery; and other similar place. Plot or interment ex- (ii) In a claim based on a veteran’s penses are those expenses associated death after October 31, 2000, either: with the final disposition of the re- (A) Deceased members of a reserve mains and are not confined to the acts component of the Armed Forces not done within the burial grounds but otherwise eligible for interment in a may include the removal of remains for national cemetery; or burial or interment. (B) Deceased former members of a re- (Authority: 38 U.S.C. 501(a), 2303(b)) serve component of the Armed Forces Cross Reference: § 3.1(i) for the definition of not otherwise eligible for interment in ‘‘State’’. a national cemetery who were discharged or released from service under § 3.1708 Burial of a veteran whose re- conditions other than dishonorable. mains are unclaimed. (c) Plot or interment allowance payable based on burial in other than a State vet- (a) General. VA will pay the max- erans cemetery. Unless VA has evidence imum burial allowance specified in 38 on the date it receives notice of the U.S.C. 2302 for the burial and funeral veteran’s death that the expenses in- expenses of a veteran described in para- curred were less, VA will pay the max- graph (b) of this section, unless VA has imum plot or interment allowance evidence on the date it receives notice specified in 38 U.S.C. 2303(b)(2) to a of the veteran’s death that the ex- claimant who incurred plot or inter- penses incurred were less than that ment expenses relating to the purchase amount. of a burial plot for a deceased veteran (b) Eligibility. A burial allowance is if the veteran is buried in a cemetery payable under this section for a vet- other than a cemetery described in eran if the Secretary determines that: paragraphs (b)(1) and (b)(3) of this sec- (1) There is no next of kin or other tion and: person claiming the remains of the de- (1) The veteran is eligible for a burial ceased veteran; and allowance under § 3.1705, Burial allow- (2) There are not sufficient resources ance based on non-service-connected available in the veteran’s estate to death; cover the burial and funeral expenses.

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(c) Additional allowance for transpor- able transportation expenses, including tation of unclaimed remains. VA may re- but not limited to the costs of ship- imburse for transportation expenses re- ment via common carrier (i.e., pro- lated to burial in a national cemetery curing permits for shipment, a shipping under § 3.1709, Transportation expenses case, sealing of the shipping case, and for burial in a national cemetery, for a applicable Federal taxes) and costs of veteran described in paragraph (b) of transporting the remains to the place this section. of burial. (d) Burial. When VA determines that (2) A reasonable transportation ex- a veteran’s remains are unclaimed, the pense is an expense that is usual and Director of the VA regional office in customary in the context of burial the area in which the veteran died will transportation, with a corresponding immediately complete arrangements charge that is the usual and customary for burial in a national cemetery or, at charge made to the general public for his or her option, in a cemetery or the same or similar services. cemetery section meeting the require- (Authority: 38 U.S.C. 2303, 2308) ments of paragraph (b) of § 3.1707, Plot or interment allowance. BURIAL BENEFITS: OTHER (Authority: 38 U.S.C. 2302(a)) § 3.1710 Escheat (payment of burial Cross Reference: § 3.1(i) for the definition of benefits to an estate with no heirs). ‘‘State’’. VA will not pay burial benefits if the § 3.1709 Transportation expenses for payment would escheat (that is, would burial in a national cemetery. be turned over to the State because (a) General. VA will reimburse the there are no heirs to the estate of the costs of transportation, subject to person to whom such benefits would be paragraph (d) of this section, of a vet- paid). eran’s remains for burial in a national (Authority: 38 U.S.C. 501(a)) cemetery for a veteran described in paragraph (b) of this section. § 3.1711 Effect of contributions by gov- (b) Eligibility. VA will reimburse for ernment, public, or private organi- the expense incurred, subject to para- zations. graph (d) of this section, to transport a (a) Contributions by government or em- veteran’s remains for burial in a na- ployer. With respect to claims for a plot tional cemetery if: or interment allowance under § 3.1707, if (1) The veteran died as the result of a VA has evidence that the U.S., a State, service-connected disability; any agency or political subdivision of (2) The veteran was receiving service- the U.S. or of a State, or the employer connected disability compensation on of the deceased veteran has paid or the date of death; contributed payment to the veteran’s (3) The veteran would have been re- plot or interment expenses, VA will ceiving service-connected disability pay the claimant up to the lesser of: compensation on the date of death, but (1) The allowable statutory amount; for the receipt of military retired pay or or non-service-connected disability (2) The amount of the total plot or pension; or interment expenses minus the amount (4) The Secretary determines the vet- of expenses paid by any or all of the or- eran is eligible for a burial allowance ganizations described in this paragraph under § 3.1708. (a). (c) Amount payable. The amount pay- (b) Burial expenses paid by other agen- able under this section will not exceed cies of the U.S. (1) Burial allowance when the cost of transporting the remains to Federal law or regulation also provides the national cemetery closest to the for payment. VA cannot pay the non- veteran’s last place of residence in service-connected burial allowance which burial space is available, and is when any Federal law or regulation subject to the limitations set forth in also specifically provides for the pay- paragraph (d) of this section. ment of the deceased veteran’s burial, (d) Reimbursable transportation ex- funeral, or transportation expenses. penses. (1) VA will reimburse reason- However, VA will pay the non-service-

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connected burial allowance when a Cross Reference: § 3.1(aa), for the definition Federal law or regulation allows the of ‘‘fraud.’’ payment of burial expenses using funds due, or accrued to the credit of, the de- § 3.1713 Eligibility based on status be- ceased veteran (such as Social Security fore 1958. benefits), but the law or regulation When any person dies who had a sta- does not specifically require such pay- tus under any law in effect on Decem- ment. In such cases, VA will pay the ber 31, 1957, that afforded entitlement maximum amount specified in 38 to burial benefits, burial benefits will U.S.C. 2302. be paid, if otherwise in order, even (2) Payment by military service depart- though such status does not meet the ment. VA will not pay or will recoup service requirements of 38 U.S.C. chap- the non-service-connected burial allow- ter 23. ance for deaths occurring during active service or for other deaths for which (Authority: 38 U.S.C. 2305) the service department pays the burial, funeral, or transportation expenses. Subpart C [Reserved] (3) When a veteran dies while hospitalized. When a veteran dies while hos- Subpart D—Universal Adjudication pitalized at the expense of the U.S. Rules That Apply to Benefit government (including, but not limited Claims Governed by Part 3 of to, death in a VA facility) and benefits would be otherwise payable under 10 This Title U.S.C. 1482 and a provision of this subpart B, only one of these benefits is AUTHORITY: 38 U.S.C. 501(a), unless other- payable. VA will attempt to locate a wise noted. relative of the veteran or another per- SOURCE: 66 FR 18195, Apr. 6, 2001, unless son entitled to reimbursement under otherwise noted. § 3.1702(b) and will ask that person to elect between these benefits. GENERAL

(Authority: 38 U.S.C. 2302, 2303(b)) § 3.2100 Scope of Applicability. § 3.1712 Effect of forfeiture on pay- Unless otherwise specified, the provi- ment of burial benefits. sions of this subpart apply only to (a) Forfeiture for fraud. VA will pay claims governed by part 3 of this title. burial benefits, if otherwise in order, (Authority: 38 U.S.C. 501(a)) based on a deceased veteran who forfeited his or her right to receive bene- § 3.2130 Will VA accept a signature by fits due to fraud under § 3.901, Fraud. mark or thumbprint? However, VA will not pay burial bene- VA will accept signatures by mark or fits to a claimant who participated in thumbprint if: fraudulent activity that resulted in (a) They are witnessed by two people forfeiture under § 3.901. who sign their names and give their ad- (b) Forfeiture for treasonable acts or for dresses, or subversive activity. VA will not pay bur- (b) They are witnessed by an accred- ial benefits based on a period of service ited agent, attorney, or service organi- commencing before the date of commission of the offense if either the vet- zation representative, or eran or the claimant has forfeited the (c) They are certified by a notary right to all benefits except insurance public or any other person having the payments under § 3.902, Forfeiture for authority to administer oaths for gen- treasonable acts, or § 3.903, Forfeiture eral purposes, or for subversive activities, because of a (d) They are certified by a VA em- treasonable act or subversive activi- ployee who has been delegated author- ties, unless the offense was pardoned ity by the Secretary under 38 CFR 2.3. by the President of the U.S. (Authority: 38 U.S.C. 5101). (Authority: 38 U.S.C. 6103, 6104, 6105)

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§ 3.2400 Applicability of modernized claims and appeals no longer apply to review system. that claim. (a) Applicability. The modernized re- [84 FR 171, Jan. 18, 2019, as amended at 84 FR view system defined in 38 CFR 19.2(b) 4336, Feb. 15, 2019] applies to all claims, requests for reopening of finally adjudicated claims, § 3.2500 Review of decisions. and requests for revision based on clear (a) Reviews available. (1) Within one and unmistakable error: year from the date on which the agen- (1) For which VA issues notice of an cy of original jurisdiction issues a no- initial decision on or after the effective tice of a decision on a claim or issue as date of the modernized review system defined in § 3.151(c), except as otherwise as provided in 38 CFR 19.2(a); or provided in paragraphs (c), (e), and (f) (2) Where a claimant has elected re- of this section, a claimant may elect view of a legacy claim under the mod- one of the following administrative re- ernized review system as provided in view options by timely filing the ap- paragraph (c) of this section. propriate form prescribed by the Sec- (b) Legacy claims. A legacy claim is a retary: claim, or request for reopening or revi- (i) A request for higher-level review sion of a finally adjudicated claim, for under § 3.2601 or which VA provided notice of a decision (ii) An appeal to the Board under prior to the effective date of the mod- § 20.202 of this chapter. ernized review system and the claim- (2) At any time after VA issues no- ant has not elected to participate in tice of a decision on an issue within a the modernized review system as pro- claim, a claimant may file a supple- vided in paragraph (c) of this section. mental claim under § 3.2501. (c) Election into the modernized review (b) Concurrent election prohibited. system. For claims governed by this With regard to the adjudication of a part, pursuant to election by a claim- claim or an issue as defined in § 3.151(c), ant, the modernized review system ap- a claimant who has filed for review plies where: under one of the options available under paragraph (a) of this section may (1) Rapid appeals modernization pro- not, while that review is pending final gram election. A claimant with a legacy adjudication, file for review under a appeal elects to opt-in to the modern- different available option. While the ized review system on or after Novem- adjudication of a specific benefit is ber 1, 2017, as part of a program author- pending on appeal before a federal ized by the Secretary pursuant to sec- court, a claimant may not file for ad- tion 4 of Public Law 115–55; or ministrative review of the claim under (2) Election after receiving a statement any of options listed in paragraph (a) of of the case. A claimant with a legacy this section. appeal elects to opt-in to the modern- (c) Continuously pursued issues. A ized review system, following issuance, claimant may continuously pursue a on or after the effective date of the claim or an issue by timely and prop- modernized system, of a VA Statement erly filing one of the following admin- of the Case or Supplemental Statement istrative review options, as specified of the Case, by filing for a review op- (except as otherwise provided in para- tion under the new system in accord- graphs (c), (e), and (f) of this section), ance with § 3.2500 on a form prescribed after any decision by the agency of by the Secretary within the time al- original jurisdiction, Board of Vet- lowed for filing a substantive appeal erans’ Appeals, or by the U.S. Court of under 38 CFR 19.52(b) and other appli- Appeals for Veterans Claims, provided cable provisions in part 19 of this chap- that any appeal to the U.S. Court of ter. Appeals for Veterans Claims is timely (d) Effect of election. Once an eligible filed as determined by the court: claimant elects the modernized review (1) Following notice of a decision on system with respect to a particular an initial claim or a supplemental claim, the provisions of 38 CFR parts 3, claim, the claimant may file a supple- 19, and 20 applicable only to legacy mental claim, request a higher-level

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review, or appeal to the Board of Vet- § 3.109(b) and the supplemental claim erans’ Appeals. application is received within the ex- (2) Following notice of a decision on tension period allowed. a higher-level review, the claimant (f) Applicability. This section applies may file a supplemental claim or ap- to claims and requests under the mod- peal to the Board of Veterans’ Appeals. ernized review system as set forth in (See appeal to the Board, 38 CFR § 3.2400, with the exception that a sup- 20.202). plemental claim may not be filed in (3) Following notice of a decision on connection with a denial of a request an appeal to the Board of Veterans’ Ap- to revise a final decision of the agency peals, the claimant may file a supple- of original jurisdiction based on clear mental claim or file a notice of appeal and unmistakable error. to the Court of Appeals for Veterans (g) Review of simultaneously contested Claims. claims. Notwithstanding other provi- (4) Following a decision on an appeal sions of this part, a party to a simulta- to the Court of Appeals for Veterans neously contested claim may only seek Claims, the claimant may file a supple- administrative review of a decision by mental claim. the agency of original jurisdiction on (d) Voluntary withdrawal. A claimant such claim by filing an appeal to the may withdraw a supplemental claim or Board as prescribed in § 20.402 of this a request for a higher-level review at chapter within 60 days of the date VA any time before VA renders a decision issues notice of the decision on the on the issue. A claimant must submit claim. (See contested claims, 38 CFR in writing or through electronic sub- 20.402). mission in a manner prescribed by the (h) Effective dates—(1) Continuously Secretary any notice of withdrawal of pursued claims. Except as otherwise an issue under the selected review op- provided by other provisions of this tion to the agency of original jurisdic- part, including § 3.400, the effective tion. The withdrawal will be effective date will be fixed in accordance with the date VA receives it. A claimant the date of receipt of the initial claim may withdraw an appeal to the Board or date entitlement arose, whichever is of Veteran’s Appeals as prescribed in later, if a claimant continuously pur- § 20.205. sues an issue by timely filing in succes- (e) Changing review options while a re- sion any of the available review op- view is pending adjudication—(1) Within tions as specified in paragraph (c) of one year of prior decision notice. A this section within one year of the claimant may change the review option issuance of the decision (or the time selected by withdrawing the request as period specified in paragraph (f) of this prescribed in § 3.2500(d) and filing the section, as applicable to simulta- appropriate application for the re- neously contested claims), provided quested review option within one year that any appeal to the U.S. Court of from the date on which VA issued no- Appeals for Veterans Claims must be tice of a decision on an issue. accepted as timely by that court. (2) More than one year after notice of a decision. A claimant may change the (2) Supplemental claims received more review option selected to a supple- than one year after notice of decision. Ex- mental claim after expiration of one- cept as otherwise provided in this sec- year following the date on which VA tion, for supplemental claims received issued a notice of decision on an issue more than one year after the date on by following the procedure specified in which the agency of original jurisdic- paragraph (e)(1) of this section. Where tion issues notice of a decision or the VA receives the supplemental claim Board of Veterans’ Appeals issued no- application after expiration of the one- tice of a decision, the effective date year period, continuous pursuit of the will be fixed in accordance with the claim will be broken and VA will apply date entitlement arose, but will not be the effective date provisions under earlier than the date of receipt of the paragraph (h)(2) of this section, unless supplemental claim. VA grants an extension of the one-year [84 FR 171, Jan. 18, 2019, as amended at 84 FR period for good cause shown under 4336, Feb. 15, 2019; 84 FR 54033, Oct. 9, 2019]

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§ 3.2501 Supplemental claims. dentiary record must include new and Except as otherwise provided, a relevant evidence that was not of claimant or his or her authorized rep- record as of the date of notice of the resentative, if any, who disagrees with prior decision. a prior VA decision may file a supple- (c) Duty to assist. Upon receipt of a mental claim (see § 3.1(p)(2)) by submit- substantially complete supplemental ting in writing or electronically a com- claim, VA’s duty to assist in the gath- plete application (see § 3.160(a)) on a ering of evidence under § 3.159 of this form prescribed by the Secretary any part is triggered and includes any such time after the agency of original juris- assistance that may help secure new diction issues notice of a decision, re- and relevant evidence as defined in gardless of whether the claim is pend- paragraph (a) of this section to coming (see § 3.160(c)) or has become finally plete the supplemental claim applica- adjudicated (see § 3.160(d)). If new and tion. relevant evidence is presented or se- (d) Date of filing. The filing date of a cured with respect to the supplemental supplemental claim is determined ac- claim, the agency of original jurisdic- cording to § 3.155, with the exception of tion will readjudicate the claim taking the intent to file rule found in § 3.155(b) into consideration all of the evidence which applies to initial claims. of record. If new and relevant evidence is not presented or secured, the agency (Authority: 38 U.S.C. 501, 5103A(h), 5108) of original jurisdiction will issue a de- [83 FR 172, Jan. 18, 2019] cision finding that there was insufficient evidence to readjudicate the § 3.2502 Return by higher-level adjudi- claim. In determining whether new and cator or remand by the Board of relevant evidence is presented or se- Veterans’ Appeals. cured, VA will consider any VA treat- Upon receipt of a returned claim ment records reasonably identified by from a higher-level adjudicator or re- the claimant and any evidence received mand by the Board of Veterans’ Ap- by VA after VA issued notice of a deci- peals, the agency of original jurisdic- sion on the claim and while the evi- tion will expeditiously readjudicate the dentiary record was closed (see claim in accordance with 38 U.S.C. 3.103(c)). 5109B. The agency of original jurisdic- (a) New and relevant evidence. The new tion retains jurisdiction of the claim. and relevant standard will not impose In readjudicating the claim, the agency a higher evidentiary threshold than the of original jurisidction will correct all previous new and material evidence identified duty to assist errors, com- standard under § 3.156(a). plete a new decision and issue notice to (1) Definition. New evidence is evi- the claimant and or his or her legal dence not previously part of the actual representative in accordance with record before agency adjudicators. Rel- 3.103(f). The effective date of any eval- evant evidence is information that uation and award of pension, com- tends to prove or disprove a matter at pensation or dependency and indem- issue in a claim. Relevant evidence in- nity compensation will be determined cludes evidence that raises a theory of in accordance with the date of receipt entitlement that was not previously of the initial claim as prescribed under addressed. § 3.2500(g). (2) Receipt prior to notice of a decision. New and relevant evidence received be- [84 FR 172, Jan. 18, 2019] fore VA issues its decision on a supplemental claim will be considered as hav- REVISIONS ing been filed in connection with the claim. § 3.2600 Legacy review of benefit (b) Evidentiary record. The evi- claims decisions. dentiary record for a supplemental This section applies only to legacy claim includes all evidence received by claims as defined in § 3.2400 in which a VA before VA issues notice of a deci- Notice of Disagreement is timely filed sion on the supplemental claim. For on or after June 1, 2001, under regula- VA to readjudicate the claim, the evi- tions applicable at the time of filing.

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(a) A claimant who has filed a Notice § 3.105(b), but, except as provided in of Disagreement submitted in accord- paragraph (e) of this section, may not ance with the provisions of § 20.201 of revise the decision in a manner that is this chapter, and either § 20.302(a) or less advantageous to the claimant than § 20.501(a) of this chapter, as applicable, the decision under review. A review de- with a decision of an agency of original cision made under this section will in- jurisdiction on a benefit claim has a clude a summary of the evidence, a ci- right to a review of that decision under tation to pertinent laws, a discussion this section. The review will be con- of how those laws affect the decision, ducted by a Veterans Service Center and a summary of the reasons for the Manager, Pension Management Center decision. Manager, or Decision Review Officer, (e) Notwithstanding any other provi- at VA’s discretion. An individual who sions of this section, the reviewer may did not participate in the decision reverse or revise (even if disadvanta- being reviewed will conduct this re- geous to the claimant) prior decisions view. Only a decision that has not yet of an agency of original jurisdiction become final (by appellate decision or (including the decision being reviewed failure to timely appeal) may be re- or any prior decision that has become viewed. Review under this section will final due to failure to timely appeal) encompass only decisions with which on the grounds of clear and unmistak- the claimant has expressed disagree- able error (see § 3.105(a)). ment in the Notice of Disagreement. (f) Review under this section does not The reviewer will consider all evidence limit the appeal rights of a claimant. of record and applicable law, and will Unless a claimant withdraws his or her give no deference to the decision being Notice of Disagreement as a result of reviewed. this review process, VA will proceed (b) Unless the claimant has requested with the traditional appellate process review under this section with his or by issuing a Statement of the Case. her Notice of Disagreement, VA will, (Authority: 38 U.S.C. 5109A and 7105(d)) upon receipt of the Notice of Disagree- [66 FR 21874, May 2, 2001, as amended at 67 ment, notify the claimant in writing of FR 46868, July 17, 2002; 74 FR 26959, June 5, his or her right to a review under this 2009; 79 FR 57697, Sept. 25, 2014; 84 FR 172, section. To obtain such a review, the Jan. 18, 2019; 84 FR 4336, Feb. 15, 2019] claimant must request it not later than 60 days after the date VA mails § 3.2601 Higher-level review. the notice. This 60-day time limit may (a) Applicability. This section applies not be extended. If the claimant fails to all claims under the modernized re- to request review under this section view system, with the exception of si- not later than 60 days after the date multaneously contested claims. VA mails the notice, VA will proceed (b) Requirements for election. A claim- with the traditional appellate process ant who is dissatisfied with a decision by issuing a Statement of the Case. A by the agency of original jurisdiction claimant may not have more than one may file a request for higher-level re- review under this section of the same view in accordance with § 3.2500, by sub- decision. mitting a complete request for review (c) The reviewer may conduct what- on a form prescribed by the Secretary. ever development he or she considers (c) Complete request. A complete re- necessary to resolve any disagreements quest for higher-level review is a sub- in the Notice of Disagreement, con- mission of a request on a form pre- sistent with applicable law. This may scribed by the Secretary, whether include an attempt to obtain addi- paper or electronic, that meets the fol- tional evidence or the holding of an in- lowing requirements: formal conference with the claimant. (1) A complete request must provide Upon the request of the claimant, the the name of the claimant and the rela- reviewer will conduct a hearing under tionship to the veteran, if applicable; the version of § 3.103(c) of this chapter (2) A complete request must be predating Public Law 115–55. signed by the claimant or a person le- (d) The reviewer may grant a benefit gally authorized to sign for the claim- sought in the claim notwithstanding ant; and

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(3) A complete request must specify the claim under review, except as pro- the date of the underlying decision for vided in paragraph (g) of this section. which review is requested and specify (g) Duty to assist errors. The higher- the issues for which review is re- level adjudicator will ensure that VA quested. complied with its statutory duty to as- (d) Filing period. A complete request sist (see § 3.159) in gathering evidence for higher-level review must be re- applicable prior to issuance of the deci- ceived by VA within one year of the sion being reviewed. If the higher-level date of VA’s issuance of the notice of adjudicator both identifies a duty to the decision. If VA receives an incom- assist error that existed at the time of plete request form, VA will notify the VA’s decision on the claim under re- claimant and the claimant’s represent- view and cannot grant the maximum ative, if any, of the information nec- benefit for the claim, the higher-level essary to complete the request form adjudicator must return the claim for prescribed by the Secretary. If a com- correction of the error and readjudica- plete request is submitted within 60 tion. Upon receipt, the agency of juris- days of the date of the VA notification diction will expeditiously readjudicate of such incomplete request or prior to the claim in accordance with 38 U.S.C. the expiration of the one-year filing pe- 5109B. riod, VA will consider it filed as of the (1) For disability evaluations, the date VA received the incomplete appli- maximum benefit means the highest cation form that did not meet the schedular evaluation allowed by law standards of a complete request. and regulation for the issue under re- (e) Who may conduct a higher-level review. view. Higher-level review will be con- (2) For ancillary benefits, the max- ducted by an experienced adjudicator imum benefit means the granting of the who did not participate in the prior de- benefit sought. cision. Selection of a higher-level adjudicator to conduct a higher-level re- (3) For pension benefits or depend- view is at VA’s discretion. As a general ents indemnity compensation, the max- rule, an adjudicator in an office other imum benefit means granting the high- than the office that rendered the prior est benefit payable. decision will conduct the higher-level (h) Informal conferences. A claimant review. An exception to this rule ap- or his or her representative may in- plies for claims requiring specialized clude a request for an informal con- processing, such as where there is only ference with a request for higher-level one office that handles adjudication of review. For purposes of this section, in- a particular type of entitlement. A formal conference means contact with a claimant may request that the office claimant’s representative or, if not rep- that rendered the prior decision con- resented, with the claimant, tele- duct the higher-level review, and VA phonically, or as otherwise determined will grant the request in the absence of by VA, for the sole purpose of allowing good cause to deny such as when proc- the claimant or representative to iden- essing is centralized at one office with- tify any errors of law or fact in a prior in the agency of original jurisdiction or decision based on the record at the when the office that rendered the prior time the decision was issued. If re- decision does not have higher-level requested, VA will make reasonable ef- view personnel available to conduct the forts to contact the claimant and/or review. the authorized representative to con- (f) Evidentiary record. The evidentiary duct one informal conference during a record in a higher-level review is lim- higher-level review, but if such reason- ited to the evidence of record as of the able efforts are not successful, a deci- date the agency of original jurisdiction sion may be issued in the absence of an issued notice of the prior decision informal conference. The higher-level under review and the higher-level adju- adjudicator with determinative author- dicator may not consider additional ity over the issue will conduct the in- evidence. The higher-level adjudicator formal conference, absent exceptional may not order development of addi- circumstances. VA will not receive any tional evidence that may be relevant to new evidence or introduction of facts

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not present at the time of the prior de- 4.9 Congenital or developmental defects. cision or apart of the evidentiary 4.10 Functional impairment. record in support of the higher-level re- 4.13 Effect of change of diagnosis. view during the informal conference in 4.14 Avoidance of pyramiding. 4.15 Total disability ratings. accordance with paragraph (d) of this 4.16 Total disability ratings for compensa- section. Any expenses incurred by the tion based on unemployability of the in- claimant in connection with the infor- dividual. mal conference are the responsibility 4.17 Total disability ratings for pension of the claimant. based on unemployability and age of the (i) De novo review. The higher-level individual. adjudicator will consider only those de- 4.17a Misconduct etiology. cisions and claims for which the claim- 4.18 Unemployability. ant has requested higher-level review, 4.19 Age in service-connected claims. 4.20 Analogous ratings. and will conduct a de novo review giv- 4.21 Application of rating schedule. ing no deference to the prior decision, 4.22 Rating of disabilities aggravated by ac- except as provided in § 3.104(c). tive service. (j) Difference of opinion. The higher- 4.23 Attitude of rating officers. level adjudicator may grant a benefit 4.24 Correspondence. sought in the claim under review based 4.25 Combined ratings table. on a difference of opinion (see 4.26 Bilateral factor. § 3.105(b)). However, any finding favor- 4.27 Use of diagnostic code numbers. 4.28 Prestabilization rating from date of able to the claimant is binding except discharge from service. as provided in § 3.104(c) of this part. In 4.29 Ratings for service-connected disabil- addition, the higher-level adjudicator ities requiring hospital treatment or ob- will not revise the outcome in a man- servation. ner that is less advantageous to the 4.30 Convalescent ratings. claimant based solely on a difference of 4.31 Zero percent evaluations. opinion. The higher-level adjudicator may reverse or revise (even if disad- Subpart B—Disability Ratings vantageous to the claimant) prior deci- THE MUSCULOSKELETAL SYSTEM sions by VA (including the decision 4.40 Functional loss. being reviewed or any prior decision) 4.41 History of injury. on the grounds of clear and unmistak- 4.42 Complete medical examination of in- able error under § 3.105(a)(1) or (a)(2), as jury cases. applicable, depending on whether the 4.43 Osteomyelitis. prior decision is finally adjudicated. 4.44 The bones. (k) Notice requirements. Notice of a de- 4.45 The joints. cision made under this section will in- 4.46 Accurate measurement. clude all of the elements described in 4.47–4.54 [Reserved] 4.55 Principles of combined ratings for mus- § 3.103(f), a general statement indi- cle injuries. cating whether evidence submitted 4.56 Evaluation of muscle disabilities. while the record was closed was not 4.57 Static foot deformities. considered, and notice of the options 4.58 Arthritis due to strain. available to have such evidence consid- 4.59 Painful motion. ered. 4.60 [Reserved] 4.61 Examination. (Authority: 38 U.S.C. 5109A and 7105(d)) 4.62 Circulatory disturbances. [84 FR 173, Jan. 18, 2019] 4.63 Loss of use of hand or foot. 4.64 Loss of use of both buttocks. 4.65 [Reserved] PART 4—SCHEDULE FOR RATING 4.66 Sacroiliac joint. DISABILITIES 4.67 Pelvic bones. 4.68 Amputation rule. Subpart A—General Policy in Rating 4.69 Dominant hand. 4.70 Inadequate examinations. Sec. 4.71 Measurement of ankylosis and joint 4.1 Essentials of evaluative rating. motion. 4.2 Interpretation of examination reports. 4.71a Schedule of ratings—musculoskeletal 4.3 Resolution of reasonable doubt. system. 4.6 Evaluation of evidence. 4.72 [Reserved] 4.7 Higher of two evaluations. 4.73 Schedule of ratings—muscle injuries.

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